Debate erupts over whistleblower rights for intelligence workers

By Elizabeth Newell Jochum

May 14, 2009

Witnesses before the House Oversight and Government Reform Committee Thursday agreed on the importance of whistleblowers and little else. Legal experts called pending legislation to expand protections for federal workers who disclose alleged mismanagement everything from "flagrantly unconstitutional" to "the world's strongest free speech shield for government employees."

Discussion of the 2009 Whistleblower Protection Enhancement Act (H.R. 1507) centered on a provision that would provide intelligence community whistleblowers the same protections as those from other agencies. Under the 1998 Intelligence Community Whistleblower Protection Act, security whistleblowers must obtain approval from the director of their agency before reporting instances of waste, fraud or abuse to congressional committees. They also are not guaranteed protection from retaliation for reporting abuses to inspectors general.

Proponents of expanded protections are confident the legislation provides a framework that protects both whistleblowers and classified national security information. But critics, including Robert F. Turner, co-founder and associate director of the Center for National Security Law at the University of Virginia School of Law, told the committee the bill would permit any disgruntled employee in the intelligence community to "gleefully expose our most sensitive national security secrets to the sunshine."

"As a matter of public policy, I think this is a truly horrible idea that will materially undermine our national security, weaken our ability to obtain sensitive information from intelligence services in other nations, probably get a lot of innocent Americans killed, and conceivably endanger the liberty of all Americans," Turner said.

Thomas Devine, legal director for the Government Accountability Project, a whistleblower advocacy group, disagreed, arguing that the secretive nature of intelligence work makes whistleblower protections even more critical.

"While there may be animus against whistleblowers in all domestic institutions, at the FBI and intelligence agencies it is more likely to be obsessive hostility," Devine said. "The code of loyalty to the chain of chain of command is the primary value at those institutions, and they set the standard for intensity of retaliation."

Several witnesses, including Devine, advocated the expanded protections as a way to prevent leaks. In the past, whistleblowers have turned to the press because they had no internal avenues for reporting concerns, witnesses said. By providing them protection through internal channels, classified information could be kept among those with the proper clearances.

"Since Sept. 11, 2001, it has become more and more evident that national security personnel need to be able to sound the alarm effectively, without fear of reprisal and without having to turn to the media in order to do so," said Rep. Edolphus Towns, D-N.Y., chairman of the committee.

Rajesh De, deputy assistant attorney general in the Justice Department's Office of Legal Policy, agreed that a properly structured system for ensuring that whistleblowers are protected only when they make disclosures to designated executive branch officials or through appropriate channels to Congress should reduce leaks. The administration's idea of the proper system, however, differs from what is laid out in the legislation.

De said Justice supports creating an entity within the executive branch that would channel classified disclosures to Congress. The office or board would be composed of senior presidentially appointed officials from key agencies within and outside the intelligence community, and inspectors general. De said this entity would simultaneously ensure agencies cannot hide their wrongdoing and allow the president to meet his constitutional obligations to protect crucial national security information.

"The current bill would grant federal employees the unilateral right to reveal national security information whenever they reasonably believe the information provides evidence of wrongdoing, even when such information is legitimately classified or would be subject to a valid claim of executive privilege," De said. "We believe that an extra-agency mechanism within the executive branch could offer a way forward to balance the executive's need to protect classified information with Congress's responsibility to help ferret out waste, fraud and abuse."

The bill is with the oversight committee and the House Homeland Security Committee. A comparable bill, introduced by Sen. Daniel Akaka, D-Hawaii, is being considered by the Senate Homeland Security and Governmental Affairs Committee.

By Elizabeth Newell Jochum

May 14, 2009