Holding the Government Accountable

DoD Memo Sheds Light on New Whistleblower Protections

A memo released by the Department of Defense (DoD) one month ago puts the Pentagon on track to fulfill its mandate under a presidential policy directive extending whistleblower protections to the Intelligence Community (IC). Unfortunately, DoD still has a ways to go on providing real support for these important whistleblowers.

On July 10, the Project On Government Oversight blogged about the uncertainties surrounding implementation of Presidential Policy Directive 19 (PPD-19), President Obama’s order extending whistleblower protections to the intelligence and national security communities. The President’s move to extend whistleblower protections to these workers—many of whom had never benefited from any such protections—promised new levels of accountability and security within one of the most secretive areas of the government. PPD-19 ordered agencies to establish procedures to prevent and remedy reprisals against employees with access to classified information who exposed waste, fraud, abuse, and other wrongdoing in government. In the absence of protections, federal employees and government contractors handling sensitive information have turned to the media to expose wrongdoing that would otherwise have remained hidden from the public eye.

DoD issued Directive-type Memorandum (DTM) 13-008 on July 8, meeting a 270-day deadline established by PPD-19 for certifying implementation of a review process for retaliation claims. POGO was pleased to see the DoD publicly release its response, as doing so lends credibility to the often-opaque rulemaking processes of the intelligence and national security communities. Additionally, DoD has appropriately adopted the time-tested burden of proof provision used in the Whistleblower Protection Act (WPA,) which ensures that whistleblowers have a fair shot at proving retaliation.

As other agencies implement PPD-19, POGO urges these agencies’ heads to follow the DoD in enacting WPA-consistent burdens of proof and other procedures “to the fullest extent possible,” as mandated by the Directive.

Unfortunately, DoD has passed the responsibility for some important rulemaking down the line to component heads. By doing so, DoD has invited weak and inconsistent protections.

The DoD’s memo notably neglected to address intelligence community contractors, like Edward Snowden, who may continue to turn to outside channels if the DoD and other agencies do not extend PPD-19 protections to contractors with access to classified information. While the Directive and DoD’s guidance enable the Department’s IG to recommend corrective actions, POGO and partners urge DoD to publicly disclose what corrective actions are taken or not taken in light of IG recommendations.

In anticipation of further PPD-19 rulemaking inside and outside of the DoD, POGO and several partners interested in promoting good government practices have submitted comments to the Director of National Intelligence urging best-practice standards for PPD-19 implementation across the Administration. The comments expand upon concerns raised by POGO time and time again, while providing further guidance to agencies instating PPD-19.

In the comments, POGO and our partners make several recommendations for implementing the PPD’s protections. For example, agencies and the Inspector General External Review Panel (a panel of three Inspectors General that reviews claims of retaliation after all other options have been exhausted) should ensure due process rights. One way to do this would be to mandate consistency with the Administrative Procedures Act (APA). The APA has long set the standards for dealing with claims of retaliation, and the use of APA standards will allow whistleblowers to take confidence in their protections, encouraging lawful disclosures and preventing leaks.

Furthermore, it is essential that agencies continue to protect all lawful disclosures made to Congress, IGs, or the Office of the Special Counsel. They should ensure that nothing in their procedures deters these disclosures. Agencies should also enable IGs to distribute interim relief to whistleblowers. It can take many weeks, months, and sometimes years for a final outcome for a whistleblower—who meanwhile may have no income. Finally, POGO and our partners recommend that agencies train IGs to ensure proper implementation of the new protections.

Since other agencies have yet to make their PPD-19 certifications public, the path to effective whistleblower protections in the IC remains uncertain. So far only DoD has provided a window into how the agencies are responding to PPD-19. Until the DoD completes its implementation and other agencies release their certifications, potential whistleblowers have no idea whether the protections will help them. It’s counterproductive to keep these policies secret.

POGO applauds the DoD for releasing its implementing instructions and urges all other agencies to follow suit.