POGO Joins Call to Restore Intelligence Contractor Whistleblower Protections

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June 9, 2015


The Honorable Mitch McConnell
Senate Majority Leader
S-230 United States Capitol Building
Washington, DC 20510

The Honorable Harry Reid
Senate Majority Leader
S-221 United States Capitol Building
Washington, DC 20510

The Honorable John Boehner
Speaker of the House
H-232 United States Capitol Building
Washington, DC 20150

The Honorable Nancy Pelosi
House Minority Leader
H-204 United States Capitol Building
Washington, DC 20150

Dear Majority Leader McConnell, Minority Leader Reid, Speaker Boehner and Minority Leader Pelosi:

The undersigned organizations write to urge you to swiftly restore best practice whistleblower protections for Intelligence Community (IC) contractors. These employees are currently defenseless against retaliation when they disclose government waste, fraud, abuse, gross mismanagement or a violation of law. In the absence of adequate protections, they have only two alternatives to almost certain retaliation: 1) remain silent observers of wrongdoing; or 2) make anonymous leaks. Whistleblowers must be free to report abuses of power that betray the public trust without fear. It is imperative that Congress quickly fill this accountability loophole.

In 2007 whistleblower rights were enacted for all Department of Defense (DoD) contractors, including the Defense Intelligence Agency and the National Security Agency (NSA), through the FY2008 NDAA. In 2009, whistleblower rights were enacted for all contracted employees paid with stimulus funds, including other IC agencies like the Central Intelligence Agency. The whistleblower protections were successful in deterring taxpayer waste and contractor abuse, and the Council of Inspectors General for Integrity and Efficiency proposed permanent expansion for all government contractors. Senator McCaskill introduced a whistleblower protection amendment for all government contractors, and won bipartisan Senate approval in the FY2013 NDAA.

However, during the closing conference committee negotiations of the FY2013 NDAA, best practice rights were enacted for all employees except those in the IC. Preexisting rights for IC contractors were removed, despite a proven track record that the law was working as intended and did not produce any adverse impacts on national security during its five-year lifespan. Based on the track record, there is no substantive policy argument for rolling back those existing rights. Contrary to concerns that court access would cause national security leaks, none even has been alleged. Contrary to predictions that intelligence whistleblowers would flood the courts, 25 cases were filed from 2008 through 2012 under the DoD contractor provision, including from the Intelligence Community.

The experience with the NDAA is not unique. Since 1986 IC employees have had the right to file False Claims Act lawsuits challenging fraud in government contracts, and to defend themselves in court against retaliation. That test has been passed without any allegations of negative side effects. Accountability should be extended beyond fraud, to cover waste and abuse as well. Similarly, 12 times since 2002, Congress has included best practice whistleblower protections as enforcement cornerstones of major remedial laws covering virtually the entire private sector, whether or not there is a government contract. [1] None has loopholes for activities involving the Intelligence Community. Again, there is no contract. record of any national security concerns resulting from these longstanding precedents.

Correcting this obvious void is essential for preserving our democracy, because the stakes could not be higher for our nation when dealing with Intelligence agency misconduct. The country cannot afford for IC contractors to remain silent in the face of evidence of wrongdoing, whether the abuse breaches security, threatens freedom, spreads corruption, or all of the above. Congress must be able to hear from insiders who have critical information regarding problems with intelligence operations. Equally important, whistleblowers should have the legal right to safely bear witness to law enforcement officers and to work within institutional checks and balances. They report misconduct to make a difference, and those are the channels that deliver results.

According to an investigation by Top Secret America, close to 30 percent of the IC workforce is contractors.[2] The investigation was partially based on interviews with officials from the IC contractor community. However, the Washington Post reported that “[m]ost requested anonymity either because they are prohibited from speaking publicly or because, they said, they feared retaliation at work for describing their concerns.”[3] Six months after IC contractor rights were rolled back, NSA contractor Edward Snowden disclosed to journalists the U.S. government’s sweeping domestic surveillance programs. When asked why he didn’t work within the system to blow the whistle, he cited the severe retaliation that previous IC whistleblowers experienced when they worked through institutional channels without rights. The chilling effect on those who are in a position to disclose misconduct is potent, and it inhibits Congress’ ability to conduct meaningful oversight.

The restoration of IC contractor whistleblower protections would help to safeguard billions of taxpayer dollars in government contracts, grants and reimbursements annually, and it would incentivize IC contractor whistleblowers to work within the system through legally protected public disclosures. There cannot be any doubt about the consequences of congressional action, or inaction, on whistleblower rights. In order to better protect taxpayer dollars, our country, and Americans’ privacy, Congress must restore whistleblower protections for IC contractors.

Sincerely,

American Civil Liberties Union

Barry Commoner Center for Health and the Environment

Bill of Rights Defense Committee

Brennan Center for Justice

Center for Digital Democracy

Center for Financial Privacy and Human Rights

Center for Media and Democracy

Citizens' Environmental Coalition

Citizens for Responsibility and Ethics in Washington (CREW)

Coalition for Change, Inc.

ConnectiCOSH

Constitutional Alliance

Consumer Action

Consumer Watchdog

Defending Dissent Foundation

Demand Progress

DownsizeDC.org

Drum Majors for Truth

Equal Justice Alliance

Essential Information

Firedoglake.com

Freedom of the Press Foundation

Golden Badge

Government Accountability Project

Gun Owners of America

Human Rights Watch

International Association of Whistleblowers

Katz, Marshall & Banks, LLP

Liberty Coalition

National Forum On Judicial Accountability

National Council for Occupational Safety and Health

National Employment Lawyers Association

National Taxpayers Union

NETWORK (A National Catholic Social Justice Lobby)

New Jersey Work Environment Council

OpenTheGovernment.org

Organizations Associating for the Kind of Change America Really Needs (OAK)

Patient Privacy Rights

PEN American Center

Power Over Poverty Under Laws of America Restored (POPULAR)

Privacy Times

Project On Government Oversight

Public Citizen

The Rutherford Institute

Sciencecorps

State Community Councils

Sunlight Foundation

Taxpayers Protection Alliance

United Support and Memorial for Workplace Fatalities (USMFW)

Whistleblower Support Fund

cc:   The Honorable Charles E. Grassley, Chairman
         Senate Committee on the Judiciary

The Honorable Patrick J. Leahy, Ranking Member
Senate Committee on the Judiciary

The Honorable Robert W. Goodlatte, Chairman
House Committee on the Judiciary

The Honorable John Conyers, Ranking Member
House Committee on the Judiciary

The Honorable Richard M. Burr, Chairman
Senate Select Committee on Intelligence

The Honorable Dianne Feinstein, Ranking Member
Senate Select Committee on Intelligence

The Honorable Devin G. Nunes, Chairman
House Permanent Select Committee on Intelligence

The Honorable Adam B. Schiff, Ranking Member
House Permanent Select Committee on Intelligence

The Honorable Ronald J. Johnson, Chairman
Senate Homeland Security and Governmental Affairs Committee

The Honorable Thomas R. Carper, Ranking Member
Senate Homeland Security and Governmental Affairs Committee

The Honorable Jason Chaffetz, Chairman
House Oversight and Government Reform Committee

The Honorable Elijah E. Cummings, Ranking Member
House Oversight and Government Reform Committee

[1] Including the: Sarbanes-Oxley Act; Energy Policy Act; FY2007 National Defense Authorization Act (Department of Defense contractors, including contractor whistleblowers at the National Security Agency and Defense Intelligence Agency); 9-11 Commission Act amending statutes for rail safety, trucking safety, and mass transit safety; American Recovery and Reinvestment Act (for all states and contractors receiving stimulus funds, including all those in the Intelligence Community); Consumer Product Safety Improvement Act; FDA Food Safety and Modernization Act; Affordable Care Act, and; Dodd-Frank Wall Street Reform and Consumer Protection Act.

[2] http://projects.washingtonpost.com/top-secret-america/articles/a-hidden-world-growing-beyond-control/

[3] http://projects.washingtonpost.com/top-secret-america/articles/a-hidden-world-growing-beyond-control/

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