June 2, 2014
Among the many continuing shockwaves from last spring’s domestic surveillance disclosures by Edward Snowden is a concerted effort within the intelligence community to recast whistleblowing.
Not that many officials grant hero status to the onetime National Security Agency contractor charged with espionage and now marooned in Russia. Many believe he is a traitor. But confusion over whether the government’s protections for whistleblowers even apply to an intelligence contractor have helped prod leaders of the 16 intelligence agencies and their inspectors general to launch an awareness effort.
“A robust outreach and training program to further educate IC personnel on whistleblower protections” is the way it’s described by Dan Meyer, now in his tenth month as executive director for intelligence community whistleblowing and source protection.
From his Reston, Va., office at the Intelligence Community’s Office of the Inspector General, Meyer told Government Executive that a communitywide policy directive, ICD-120, signed in March by the director of the Office of the Director of National Intelligence (ODNI) “is an affirmative statement that you have to blow the whistle” upon encountering wrongdoing, noting that in the past it was seen as an option. The new directive, he added, “shows firm support for the IC IG Whistleblowing program that actively promotes federal whistleblowing through lawful disclosures, which ultimately strengthens our nation’s security.”
The key to the campaign of openness to whistleblowers, as distinct from criminal leakers and publicity seekers, Meyer stresses, is that it “must aid the agency mission. It is developmental and helps all stakeholders understand that we have rules in effect,” he added. Meyer is expecting a bow wave of whistleblower retaliation cases (which can involve punishments ranging from demotion to pay cuts to required psychiatric evaluation) to come through his office directly or through a hotline in the coming months.
A related July 2013 set of “external review procedures” for the community—a copy of which was declassified for this story—revolve around President Obama’s October 2012 Presidential Policy Directive-19, which added new protections for whistleblowers facing possible retaliation, the applicability of which is debated among whistleblower advocates.
But this spring’s directive by ODNI Director James Clapper is what is hailed by Meyer’s boss, Intelligence Community Inspector General I. Charles McCullough III, for implementing “ground-breaking IC-wide policy that ensures security clearance decisions are protected from reprisal for intelligence community employees and contractors who make lawful disclosures."
Defining ‘Lawful Disclosure’
Legally, the new protocols rely on a kind of triple bank shot of statutes and regulations beginning with the 1947 National Security Act through the 1979 Foreign Intelligence Surveillance Act through the Federal Acquisition Regulation and various whistleblower acts in the 1980s and 1990s, both within and outside the intelligence community. “An IC employee or contractor may make a lawful disclosure through a variety of venues,” says a new fact sheet.
The inspector general’s office conducts the initial review because “we have some level of detachment from agency management,” Meyer says, and “that detachment helps lend legitimacy.” The language of Obama’s directive “is pretty generous” toward whistleblowers, Meyer explains, referring to the civilian legal standards of Title 5 of the U.S. Code for prosecutors seeking to punish illegal leaks or retaliation. It requires “clear and convincing evidence,” as opposed to the military’s reliance on a “preponderance of evidence,” stipulated in Title 10.
Meyer’s team is “creating a project using civilian higher standards, but we don’t think it’s a big burden because things will be thoroughly documented,” he said. “It’s sloppy managers who put the agency at risk. If they’re doing their job according to regulations, they will do fine, and if there’s a reprisal, they will get caught.”
Clapper's March directive also reiterates a broad 1995 definition of who constitutes an employee: a person detailed or assigned to “an agency, including members of the armed forces, an expert or consultant to an agency; an industrial or commercial contractor, licensee, certificate holder, or grantee of an agency, including all subcontractors; a personal services contractor; or any other category of person who acts for or on behalf of an agency as determined by the appropriate agency head.”
But there are a few catches: Intelligence community contractors are not covered under Part A of Obama’s directive, nor under a Pentagon pilot program authorized in the 2013 National Defense Authorization Act. And under older law, they are protected as whistleblowers only if they make disclosures relating to the contract under which they are working.
Despite the confusion, Meyer says, contractor whistleblowers have basically been covered by the protections since the early 1980s, and the IG’s office is prepared to review their cases once the home agency of jurisdiction has been established.
The issue of Snowden’s eligibility as a contractor whistleblower (he worked for Booz Allen Hamilton on a broad NSA contract) was discussed publicly in February at a Georgetown University Law Center conference at which Meyer spoke. There, NSA Inspector General George Ellard attacked Snowden for releasing to reporters classified information on surveillance of Americans’ telecommunications metadata, saying “Snowden could have come to me.”
Obama himself has suggested that Snowden could have taken advantage of PPD-19.
“There’s no question Snowden had a place to go outside of NSA,” said Meyer, noting that the Defense Department and the intelligence agencies have long required “rigorous training” in whistleblower procedures. But, he cautioned, “I’m not saying the existence of the protections means there was awareness of them.”
Indeed, one of his big challenges is to increase the effectiveness of the official whistleblower review procedures. “In the intelligence community, awareness is a challenge because only so much of our operations can be made public,” Meyer says. “People are saturated with privacy issues, and we don’t have the same level of transparency” as non-intelligence agencies.
The suggestion that Snowden had in-house options for his complaints about domestic surveillance is rejected by Angela Canterbury, policy director for the nonprofit Project on Government Oversight, a longtime whistleblower advocacy group. “There are the laws on the books, and there is the law in practice,” she said. “The experience of other NSA whistleblowers who did use internal channels is that they not only faced discrimination, but one [Thomas Drake] was prosecuted.”
Noting that the intelligence community agencies were “carved out” of whistleblower protections accorded Defense employees just months before Snowden acted, Canterbury says, “It’s not clear whether or not the president intended to protect contractors in PPD-19. And since the directive had not yet been implemented, no one in their right mind would have thought they were protected’’ either in disclosing to an inspector general or a congressional committee. “It’s still a question mark.”
Even so, Canterbury backs Meyer’s work, noting his strong track record from years at the Defense Department IG’s office. “The administration has made a strong, good-faith effort to make the implementation workable and encourage whistleblowers to make internal disclosures,” she said. “But it’s a flawed, closed system that depends on how IGs implement what looks to be fairly sound policy. It won’t overcome the fundamental weakness of lacking an independent due process and enforcement authority.”
That mixed opinion is echoed by Tom Devine, legal director for the nonprofit Government Accountability Project, which is evaluating the March guidelines. “That directive will informally establish Meyer’s ombudsman role as the functional equivalent to the Office of Special Counsel for civil service employees, and hopefully he will be effective at that long-needed challenge,” Devine said. But the protections offered to contractor employees address retaliation dealing with security clearances, not for retaliation that is banned under the 2012 Whistleblower Protection Enhancement Act, he said.
“The disappointing thing is that the intel community guidelines do not guarantee any due process rights,” such as an employee being entitled to an oral hearing or court proceeding. “The process may consist entirely of a file review by the IC IG,” Devine said. “The most significant positive in the guidelines is a provision tucked in that makes the WPEA’s statutory provisions controlling to interpret free speech rights, as well as the WPEA legal burdens of proof, and all precedents from the Merit Systems Protection Board cases. That’s a night-and-day difference for the whistleblower having a realistic chance to win.”
Mike Decker, former assistant to the Defense secretary for intelligence oversight, said Meyer’s function “provides one more level of review within the protected classified world for whistleblowers who feel stifled” after they’ve taken their complaints to direct supervisors and then the inspector general’s office and are about to go to the media. “Snowden skipped maybe four of those steps,” he added.
Meyer says the intelligence community is attempting a culture change in reconciling whistleblowers’ contributions with the agency’s counterintelligence mission -- in getting disclosures made internally rather than through the media. His office is in a good position to ask, “Do we truly understand what the president had done in accepting whistleblowers as a beneficial mission in government and not a nice-to-have?” he said.
“Experts say cultural change takes five to seven years,” Meyer added. “In 10 years, I predict people will say they can’t imagine that’s how we used to treat whistleblowers.”
This story was updated to include a link to ICD-120 and to correct a reference to the Office of the Director of National Intelligence.
June 2, 2014