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Where we stand on President Obama's "Policy Directive" on National Security Whistleblowers

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WHERE WE STAND ON PRESIDENT OBAMA’S “POLICY DIRECTIVE” ON NATIONAL SECURITY WHISTLEBLOWERS

Presidential Policy Directive 19 is a Directive that creates administrative procedures “protecting” employee-whistleblowers who work for U.S. intelligence agencies, including the NSA, CIA, DNI and the Defense Intelligence Agency. When first announced by President Obama in late 2012, the Directive was met with mixed reviews. Some public interest groups praised the President for taking this initiative, while others strongly condemned the measure.

The White House has repeatedly pointed to the Directive as part of its defense of the President’s handling of the Edward Snowden matter.   For example, at an August 9, 2013 press conference President Obama said:

I signed an executive order well before Mr. Snowden leaked this information that provided whistleblower protection to the intelligence community — for the first time. So there were other avenues available for somebody whose conscience was stirred and thought that they needed to question government actions.

Attorneys associated with the NWC litigate cases on behalf of employee-whistleblowers, many of which have direct impact on national security. Based on these experiences we have learned what protections must exist in order to give courageous and highly vulnerable employees a fighting chance to protect their jobs. Unfortunately, the Directive lacks any of these provisions.

WHY WE OPPOSE THE DIRECTIVE

The Directive contains three systemic faults that render its provisions ineffectual, counterproductive and at odds with efforts to provide real protection for employees.

Fault No. 1: The authority to protect the whistleblower is vested solely and absolutely with the Head of the Agency that retaliated against the whistleblower.

Although complex and verbose, after reading through the Directive its most significant problem is the lack of independence in its procedures.   At the end of the day, the head of the agency that fired the whistleblower has the absolute and non-reviewable authority to issue the final decision on the merits of the whistleblower’s claim and to award all remedies. In other words, the very agency official who approved the initial adverse action has the sole power to issue the final agency decision in a whistleblower case.

This leaves national security/intelligence agency whistleblowers in a worse position than they were in prior to the issuance of the Directive. Under the Inspector General Act, agency Inspector General’s (IG) are legally required to accept whistleblower complaints, maintain the confidentiality of whistleblowers and, when appropriate, issue reports on a whistleblower’s case and present these findings to the head of an agency. Stripped of its complexities, the Directive accomplishes the same mission, but in a far more cumbersome manner. The Directive’s procedures will, in practice, take years to adjudicate a claim and will be extremely costly to any whistleblower that hires an attorney (which would clearly be needed).

But the bottom line remains the same. There is neither an independent administrative agency nor a judge with the authority to make the final decision. Instead, the decision is made by the same official whom, most likely, signed off on the original retaliation and whose agency is directly implicated by the whistleblower’s allegations. This circular approach is, in reality, a complex trap for the overwhelming majority of employees who blow the whistle.

Furthermore, at each juncture the Directive’s overly complex administrative procedures place the whistleblower at risk for collateral attacks. This includes permitting agencies to challenge the truthfulness of a whistleblower, or otherwise attack his or her character. Attacks serious enough to trigger security clearance reviews and damage careers. It also lacks explicit Privacy Act protections and strict limits on the release of information related to the whistleblower, as does the Whistleblower Protection Act. As for the end results of the process, the right to collect damages is limited and it is unclear whether or not the employee is entitled to attorney fees and costs. There is nothing in the Directive that encourages employees to report waste, fraud and abuse.

In contrast to the Directive, the FBI whistleblower directive signed by President Clinton prohibited the Justice Department from ever re-delegating any authority to investigate or adjudicate a whistleblower case back to the FBI. Consequently, FBI agents who blow the whistle are entitled to an independent investigation for which the FBI Office of Professional Responsibility can have no role whatsoever and a hearing on the merits outside of the FBI (currently the hearing authority is vested in a Justice Department office). The final decision in the FBI case is issued, not by the Director of the FBI, but by the Deputy Attorney General. Based on the independence of these procedures, the DOJ has actually issued strong rulings in support of whistleblowers over the strenuous objections of the FBI.

By delegating all final decision-making authority with the head of the agency responsible for the initial retaliation, the Directive is a radical step backwards and undermines the basic principles that have governed all whistleblower laws and procedures since the enactment of the Civil Service Reform Act in 1978.

Fault No. 2: The Directive incorporates the “State’s Secrets” privilege that permits agency heads to fire whistleblowers regardless of the Directive.

Section F(4) of the Directive explicitly permits agency heads to take action against whistleblowers pursuant to 5 U.S.C. § 7532. Section 7532 empowers the head of each intelligence agency to fire at-will any whistleblower, with no appeal rights and no judicial review. This provision effectively creates a “states secret” privilege, i.e. it permits the agency responsible for the retaliation to block the whistleblowers ability to use any legal mechanism to protect his or her job, including the procedures contained in the Directive.

Fault No. 3: The Directive explicitly neglects to create any real legal protection.

The most egregious defect in the Directive is contained in Section G. This Section renders all of the “protections” afforded whistleblowers under the Directive illusory. This section makes it perfectly clear that intelligence agency whistleblowers have absolutely no enforceable rights. In language not used in any other whistleblower regulation known to the NWC, the Directive states as follows:

“This directive is not intended to and does not create any right or benefit, substantive or procedural, enforceable at law.”  

In other words, an agency can willfully violate any of the procedural or substantive rights afforded by the Directive, and the whistleblower is completely powerless to oppose this clear abuse of discretion. There can be no judicial review of any actions taken under the terms of the Directive, not only because the Directive prohibits such review, but because the Directive creates no real rights.

CONCLUSION

The Directive fails to provide protection for whistleblowers and creates bad precedent. The Directive has already been used effectively by the White House to create an illusion that intelligence agency whistleblowers have rights and creates a pretext to oppose effective Congressional action to enact an actual law that would protect intelligence community employees.

The NWC supports a renewed campaign to have Congress enact real legal protections for intelligence community whistleblowers. During the last Congressional session, the U.S. Senate unanimously passed legislation that would have provided intelligence community whistleblowers with modest protections. The provision also unanimously passed the House Oversight committee, but was opposed by members of the House Intelligence Committee.

Although far from perfect, last years Senate bill should be re-introduced into Congress, and the whistleblower advocacy community should strongly endorse its passage.

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Stephen Kohn is the Executive Director of the National Whistleblowers Center and is also the author of The Whistleblower’s Handbook: A Step by Step Guide to Doing What’s Right and Protecting Yourself  (Lyons Press, 2011).

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