July 10, 2014

New Protections for Intelligence Whistleblowers: One Step Closer to Avoiding the Next Snowden?

By Gordon Schnell

In the wake of the Edward Snowden fiasco last year, many blamed the US government as much as they did the former NSA contractor for the leaks leading to one of the biggest national security failures in US history.  That is because for intelligence whistleblowers like Snowden, the government offered no protections, no incentives, no reasons of any kind to stay within the system.  It was the one type of whistleblower the government made very clear it did not want to hear from.  So who could blame Snowden for going public and on the lam with his revelations?  See Why People Like Snowden Will Keep Running to the Press and Preventing the Next Snowden.

Well, this gaping hole in the US whistleblower regime may finally be plugged, at least partially, with President Obama’s signing into law on Monday legislation that offers protections for whistleblowers within the national intelligence community.  Included as part of the 2014 Intelligence Authorization Act, and styled as an amendment to the National Security Act of 1947, the legislation provides whistleblower retaliation protections for the first time to this disfavored class of whistleblowers.

Despite the recent proliferation of whistleblower legislation, those who work in the intelligence community had — up until now — been intentionally left out in the cold.  The recently amended Whistleblower Protection Act, the central law protecting government whistleblowers, specifically excluded them.  So did the recently implemented National Defense Authorization Act, which expanded whistleblower protections to military contractors.  Even the Intelligence Community Whistleblower Protection Act, the very statute designed to protect this select group, belied its title by offering no such protection at all.

The new legislation is a complete turnaround from this deep-rooted aversion to intelligence whistleblowers.  It covers employees at all the key intelligence agencies, including the Central Intelligence Agency, the Defense Intelligence Agency and the National Security Agency (the FBI is covered by a different statute).  And it protects them from being retaliated against for reporting what they believe to be their agency’s (i) violation of any federal law or regulation, or (ii) mismanagement, waste of funds, abuse of authority or threat to public health or safety.  The only catch is that these whistleblowers are limited in where they can bring their complaints or concerns.  Inspectors General, agency high-ups and congressional intelligence committees are all fine.  A wider congressional audience, the press, or the public at large are not.

No doubt, the new legislation has its flaws and limitations.  Perhaps the biggest one ironically is its failure to cover intelligence agency contractors — like Snowden — who represent a very sizable portion of the intelligence community workforce.  It also lacks a concrete enforcement provision, leaving it for the President to implement at some point down the road.  This means that until President Obama specifically engages on this issue, there will be no real mechanism for enforcing these new-found whistleblower protections.

Another potential gaping hole in the legislation is the broad discretion it affords agencies in dealing with security clearance issues, seemingly allowing an agency wide birth to revoke clearance in the face of a whistleblower complaint.  The procedural mechanism for a whistleblower to challenge an adverse agency action also seems to be stacked quite heavily against the whistleblower in terms of timing, proof and the lack of independent judicial review.

Nevertheless, the new legislation is a step in the right direction in finding the appropriate balance between safeguarding our national security and providing real oversight and accountability to keep our intelligence agencies in check.  As Snowden made all too clear, no matter the risk of punishment there will always be those driven to say something when they see something that rubs against their moral compass.  Especially, it seems, those within the intelligence community.  And we should be grateful.  That is, as long as they do not jeopardize our safety in the process.  Hopefully, with these new protections and incentives, the next Edward Snowden with concerns involving national security will not have to run to the press to have his or her grievances properly aired.

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