Today, the Government Accountability Project (GAP), Project On Government Oversight (POGO), and Public Citizen praised Senate action last Wednesday night to restore whistleblower protections that had been removed from the Whistleblower Protection Enhancement Act (WPEA) of 2012. The Senate bill would expand and codify actions detailed in Presidential Policy Directive (PPD) 19, issued by President Obama in October 2012. This Senate legislation would be stronger than the PPD, which does not explicitly protect disclosures to Congress.
The slightly modified WPEA provision is contained within Title VI of the Intelligence Authorization Act for POGO Policy Director Angela Canterbury stated:
This is a welcome breakthrough for national security and intelligence community whistleblowers and accountability. Thanks especially to Sens. Collins and Wyden, these usually disenfranchised truth-tellers may have statutory protections for the first time – a real anti-leaks measure. We are encouraged by the results so far of the good-faith negotiations between the House and Senate Intelligence Committees. While it is not everything we sought, the protections go a long way to codify President Obama's policies. The House should not delay in finally making these protections law.
Lisa Gilbert, Director of Public Citizen’s Congress Watch division, said:
While imperfect, this provision’s approval still marks a significant step forward for intelligence community whistleblowers. The protections codify and improve President Obama's important stop-gap policies intended to provide protection for intelligence whistleblowers against retaliation and transparency on the process. The House should act immediately to make these critical protections final.
Senate action was the result of leadership from two members of the Senate Select Committee on Intelligence (SSCI): Senator Ron Wyden (D-Or) who sponsored the provision at SSCI committee markup, and Senator Susan Collins (R-Maine) who successfully negotiated with House offices that previously had opposed the provision.
GAP Legal Director Tom Devine commented:
Senators Collins and Wyden deserve public servant awards for leadership on closing the last major loophole in whistleblower rights for government workers. This legislation is the first step toward a safe alternative to leaks for potential whistleblowers in the intelligence community. If finalized, it will be a landmark congressional action to create both free speech rights within intelligence agencies and protections against security clearance retaliation throughout the civil service. While not a final solution, it is the breakthrough paradigm shift to challenge abuses of power and corruption by intelligence agencies without risking threats to national security.
The Senate reform includes the following:
- Protection for intelligence community government workers against retaliation banned by the Whistleblower Protection Act (WPA). Disclosures by whistleblowers would be protected when made within their agencies, to the Office of Inspector General, or to the select congressional intelligence committees.
- Extension of these free speech rights to workers holding security clearances. Whistleblowing now will be accepted as an affirmative defense in legal proceedings involving these workers, although agencies that normally are defendants will still control initial hearings, and legal burdens of proof are modified for national security concerns.
- Application of WPEA provisions banning loopholes in protection based on context, timing, formality, job status or other exceptions.
- Equal protection for those exercising personnel rights or providing testimony.
- Appeal rights to an administrative board selected by the Director of National Intelligence.
- Appeal board authority to rule do novo that an agency action is illegal whistleblower retaliation, with authority to order continued employment, payment of attorney fees and costs, and payment of up to $300,000 in compensatory damages.
- Preservation of all existing rights, including limited whistleblower protection already available for FBI employees.
Despite the Senate's approval, Devine cautioned, "While a landmark first step, I couldn't in good conscience reassure any whistleblower that the new rights make it safe to work within the system." He added that weaknesses in the legislation that must be addressed in future versions of it include:
- Lack of protection against contradictory agency nondisclosure policies, forms or agreements, which are a safeguard in the WPEA’s “anti-gag” provision.
- Lack of hearings at an independent forum not controlled by the institution.
- Agency authority to justify actions with classified information denied to the employee.
- No employee rights to compel production of classified evidence that could make a difference in the case, except to prove that disclosures occurred.
- No employee rights to make congressional disclosures outside the select intelligence committees.
- No protection against security clearance actions of less than a year.
- A loophole permitting summary action by agency heads.
- An explicit ban on judicial review.
Contact: Tom Devine, GAP Legal Director
Phone: 202.457.0034, ext. 124, cell 240.888.4080
Email: [email protected]
Contact: Angela Canterbury, Project On Government Oversight
Email: [email protected]
Contact: Keith Wrightson, Public Citizen
Email: [email protected]