DoD and DoE publish policies for whistleblowers with security clearances



Secrecy News reports that the Department of Defense (DoD) and the Department of Energy (DoE) have published their departmental policies for implementing Presidential Policy Directive 19. PPD-19, published October 12, 2012, directed “the head of each Intelligence Community Element” to certify to the Director of National Intelligence (DNI)  that the agency “has a review process that permits employees to appeal actions affecting Eligibility for Access to Classified Information they allege to be in violation of this directive,” i.e., in retaliation for whistleblowing. 

Any officer or employee of a Covered Agency who has authority to take, direct others to take, recommend, or approve any Personnel Action, shall not, with respect to such authority, take or fail to take, or threaten to take or fail to take, a Personnel Action with respect to any employee serving in an Intelligence Community Element as a reprisal for a Protected Disclosure

The presidential directive covers employees serving in the Intelligence Community who “report waste, fraud, and abuse while protecting classified national security information.” The policies do not cover employees of government contractors (for example, someone like Edward Snowden, formerly an employee of a National Security Agency contractor), although they, too, have access to classified information. The policies cover only disclosures made within the agencies, through the chain of command; although the possibility exists of review by the Director of National Intelligence. There is no provision for disclosures to Congress or the news media.

a disclosure of information by the employee to a supervisor in the employee’s  direct  chain  of  command  up  to  and  including  the  head  of  the   employing agency, to the Inspector General of the employing agency or Intelligence Community Element, to the Director of National Intelligence, to the Inspector General of the Intelligence Community, or to an employee designated by any of the above officials for the purpose of receiving such disclosures, that the employee reasonably believes evidences (i) a violation of law, rule, or regulation; or (ii) gross management, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;

The policy makers thus appear to contradict the intent of Congress in passing the Intelligence Community Whistleblower Protection Act (ICWPA).

“The whistleblower passing [classified information to Congress] through the ICWPA process knows they’re protected against giving it out impermissibly,” explained Dan Meyer, the DOD inspector general office’s director of whistleblowing and transparency, in a recent webinar on journalism involving military and intelligence whistleblowers.

The new policies do not apply retroactively to disclosures made before “the date on which the agency certifies the agency review process.” The policies allow targets of retaliation to be compensated for losses. But, neither policy mentions taking disciplinary action against retaliating officials–a hint that the agencies whistleblower reprisal still is not taken seriously within the bureaucracy.

The policy memoranda are available here (DoD-PPD19-policy ) and here (DoE-PPD19-policy).