Washington, D.C. October 11, 2012 – Yesterday, the Obama Administration issued a Presidential Policy Directivedesigned to “protect” national security whistleblowers. The National Whistleblower Center recognizes the Directive as a small step forward, but strongly criticizes it as failing to provide any real or substantive legal rights for national security employees.
The Directive appears on its face to help national security whistleblowers by requiring these agencies to establish a process for whistleblowers to seek review of prohibited personnel actions. However, the last paragraph (Section G) insulates the government from any liability to whistleblowers and bars whistleblowers from relying on the Directive to enforce any legal rights. This closing paragraph explicitly limits the legal enforceability of any the rights or procedures established under the Directive:
This directive is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Under the Directive, the final decision of an agency head to fire a whistleblower is not subject to review, meaning that whistleblowers cannot challenge the decision of the agency in court or otherwise.
Stephen M. Kohn, the Executive Director of the National Whistleblower Center, issued the following statement:
The Directive fails to provide whistleblowers with any new enforceable legal rights. In fact, the Directive specifically states that it does not ‘create any right or benefit’ for whistleblowers. This section renders the Directive toothless. We are concerned that national security employees may think that this Directive gives them some much-needed protections when it does not.
The NWC is concerned that this toothless policy will be used to justify Congress’s failure to enact legal protections for national security whistleblowers.