Cross posted from Open The Government.
On December 8, the Obama Administration committed to taking steps over the next two years with the stated goal of strengthening and expanding protections for federal whistleblowers in its second National Action Plan (NAP) for the Open Government Partnership (OGP). Commitments include: mandating participation in the Office of Special Counsel’s Whistleblower Certification Program; furthering implementation of the Presidential Policy Directive 19 (PPD-19), which extends protections to whistleblowers with access to classified material; advocating for expansion of whistleblower protections through legislation; and exploring executive authority to extend those protections if Congress does not act.
The backdrop for these commitments is a contradictory mélange for whistleblowers under President Obama. On one hand, President Obama has done more than any other president to advance affirmative legal protections for whistleblowers. He has made excellent appointments to the key agencies charged with enforcing whistleblower protections. On the other hand, this Administration has prosecuted more federal employees under the Espionage Act for disclosing government information than all presidencies combined. This heavy-handed attempt to end leaks of classified information has instead produced one of the largest, and likely the most important leak in American history.
National Security Administration (NSA) contractor whistleblower Edward Snowden and other intelligence community contractors did not have any protections under the law for legally disclosing the very likely unconstitutional acts of the NSA.
We urged the administration to at least ensure that the policy directive to protect whistleblowers with access to classified information (PPD-19) covers contractors—and now there is a commitment to do so. That is appreciated. We also welcome the commitment to ensure “strong, independent due process procedures,” though this may not be possible under the current policy, given that the process available is not independent of the intelligence community (IC) itself. There aren’t protections for disclosures outside the IC, except for the congressional intelligence committee leadership, who have been shown to be really inside the IC, having not conducted independent oversight over NSA domestic spying. So, the only options for protected disclosure are to the ones ultimately responsible for the wrongdoing, or their congressional lapdogs. Like the President’s Review Group on Intelligence and Communications Technologies, we strongly recommend a protected path of disclosure to entities independent of the IC.
In addition, the only option for a review of claims of retaliation is with the Inspectors General of the intelligence community. So, while the agencies may craft them, the legitimacy of “strong, independent due process procedures” in practice rests with the IC Inspectors General—not the White House. Inspectors General are supposed to be independent from the agencies they watchdog, but also still technically report to the head of the agency. We’ve found that independence varies wildly across the IG community. It really depends a lot on whether or not that IG seeks public and congressional support, which has rarely been the case in the IC.
So, can others like Snowden with important revelations to share now expect protections for making legal disclosures? Maybe, but not likely. Anyway, shhhhhh, it’s a secret.
We may never know if they succeed, since the PPD-19 implementation has been done in secret and there is no commitment to make the policies and procedures public (though we asked them to do so). How will we measure success? Perhaps the commitment to ensure “awareness of protections” will lead the way to more transparency in this secret open government commitment. It took several months of urging, but the White House finally made the text of PPD-19 public. Hopefully, it won’t be long before all of the agency policies and procedures mandated by PPD-19 are made public as well.
Another commitment provides an opportunity for a stronger, more independent system of whistleblowing for national security and intelligence communities: the commitment to advocate for legislation to expand whistleblower protections. The Administration was extremely helpful in the passage of the landmark Whistleblower Protection Enhancement Act—a commitment from the first OGP NAP. Though the new NAP is short on specifics, we hope the Administration will help push for legislation that will at least protect all disclosures of classified information to any Member of Congress, as well as to independent entities such as the Office of Special Counsel and the Privacy and Civil Liberties Board. These reforms could also be done with executive action (fulfilling another commitment!). However, legislation is needed to ensure authentic independent review of claims of retaliation by the Office of Special Counsel and the Merit Systems Protection Board of claims of retaliation.
Of course, we also have more ideas for closing gaps in the law. For example, much more must be done to restore protections to those who hold national security sensitive positions; strengthen military whistleblower protections; and improve the broken FBI whistleblower system.
Hopefully, the new NAP will yield more openness and real results for a stronger culture of accountability in government. The commitment to mandate certification of agency compliance with whistleblower laws is a good, if modest step in that direction (one that we had recommended). POGO and our partners look forward to continuing to work with the Obama Administration and the public to make the most of this opportunity for reform.
Whistleblower Commitments from National Action Plan
- Strengthen and Expand Whistleblower Protections for Government Personnel: Employees with the courage to report wrongdoing through appropriate, legally authorized channels are a government’s best defense against waste, fraud, and abuse. Federal law prohibits retaliation against most government employees and contractors who act as whistleblowers, and those protections were strengthened by recent legislation and Executive action. However, some who work for the Government still have diminished statutory protections. The Government must also ensure that Federal employees know their rights. Therefore, the Administration will:
- Mandate Participation in the Office of Special Counsel Whistleblower Certification Program. To ensure that Federal employees understand their whistleblower rights and how to make protected disclosures, the Administration will require covered agencies to complete the U.S. Office of Special Counsel’s program to certify compliance with the Whistleblower Protection Act’s notification requirements.
- Implement the Presidential Directive on Protecting Whistleblowers. The U.S. Government will continue to work to implement the President’s October 2012 Policy Directive on Protecting Whistleblowers with Access to Classified Information (PPD-19), including by ensuring strong, independent due process procedures; awareness of protections; and agency understanding of the protections available to government contractors under the directive.
- Advocate for Legislation to Expand Whistleblower Protections. With the Administration’s support, Congress recently enacted legislation to strengthen whistleblower protections for most Federal Government employees and contractors, but there are still gaps in statutory protections available to certain government employees and contractors. The Administration will continue to work with Congress to enact appropriate legislation to protect these individuals.
- Explore Executive Authority to Expand Whistleblower Protections if Congress Does Not Act. While statutory protections are preferable, the Administration will explore additional options for utilizing Executive authority to further strengthen and expand whistleblower protections if Congress fails to act further.