Gaps confirmed in protections for national security whistleblowers

secret-sources-report

Washington, D.C. — According to a new report, workers in national security positions remain vulnerable to reprisal under current federal laws. The PEN America report, Secret Sources: Whistleblowers, National Security, and Free Expression, refutes allegations by current and former government officials that Edward Snowden had a protected alternative for making his disclosures of government surveillance programs.

Current laws are not merely inadequate to protect workers at intelligence agencies, the report points out; they create a double bind. Executive Order 12674 requires employees to report “waste, fraud, abuse and corruption to the appropriate authorities” but whistleblower laws lack critical protections, including the following.

  • No protection from criminal prosecution.
  • No protection for external disclosures (to news media, for example)
  • No access to regular courts to obtain relief
  • No accountability for institutional misconduct

The PEN report makes several criticisms of President Obama’s Presidential Policy Directive 19. PPD-19 [which I analyzed previously here and here]. PPD-19 tasks Inspectors General (IGs) with investigating whistleblower retaliation claims and recommending appropriate dispositions to agency heads. But, IG;s “lack neutrality and independence,” the report observes, and their recommendations to agency heads are not binding; moreover, “IG offices have been accused of destroying records, violating confidentiality, and failing to conduct adequate investigations.” The report identifies conflicts of interest in PPD-19, such as the directive’s requirement for agencies to establish their own implementing policies and procedures. The Intelligence Authorization Act for Fiscal Year 2014 codified portions of PPD-19, but even that offers “weak protections,” concludes the report, by prohibiting  judicial reviews and “no explicit protection against criminal prosecution,” among other things.

It would have been nice if the report had pointed out that many employees potentially covered by PPD-19 (because they hold security clearances) are not “intelligence community” employees. Even if their disclosures have nothing to do with classified information or programs, their clearances make them more vulnerable to reprisal than whistleblowers without clearances. Also, the report might have noted that agencies thus far have interpreted PPD-19 inconsistently in their implementing directives. That could pose problems for whistleblowers if the interpretations are later revised.

PEN introduced the report at the Newseum in Washington, D.C., where a panel discussed the report’s findings. Panel members included NSA whistleblower  Thomas Drake, Justice Department whistleblower Jesselyn Radack, and journalist James Risen. Dan Meyer, a federal official tasked with coordinating implementation of President Obama’s national security whistleblower policy, had been scheduled to participate in the discussion but withdrew, a PEN representative announced, due to a perceived “legal and security conflict of interest.” [In response to a request by this writer for more details, a PEN representative wrote that they learned from a colleague of Meyer’s that  “Dan realized he has a security conflict of interest and cannot be on the same panel as Mr. Drake.”]

Radack, a lawyer who represents Drake, commented, “I find it absolutely pathetic that the IG’s (Inspector General’s) Office or anyone is conflicted from being on the panel because Tom Drake is here, because there’s no litigation going on.” On Twitter, after the event, Drake responded that he was “disappointed” by Meyer’s decision.

@Thomas_Drake1 How did you feel when you heard the reason Dan Meyer would not attend the PEN America event? — Linda Lewis (@usalinda) November 11, 2015

@usalinda was disappointed.— Thomas Drake (@Thomas_Drake1) November 11, 2015

 

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