(Washington, DC) – Today, the Government Accountability Project (GAP) praised a Presidential Policy Directive signed by President Obama to create free speech rights for national security whistleblowers. The action largely restores many of the rights and remedies that the U.S. House Permanent Select Committee on Intelligence removed from the Whistleblower Protection Enhancement Act (WPEA) last month – an action performed to allow a vote approving the remaining reforms.
Last year, the White House promised to consider action on federal whistleblower rights where Congress failed. GAP Legal Director Tom Devine commented, "For the first time, intelligence community employees have free speech rights to challenge fraud, waste and abuse within agency channels."
Devine emphasized, however, that the policy directive only is a landmark breakthrough in principle, stating "Until agencies adopt implementing regulations, no one whose new rights are violated will have any due process to enforce them. Further, there are only false due process teeth on the horizon. Regulations to enforce whistleblower rights will be written by the same agencies that routinely are the defendants in whistleblower retaliation lawsuits."
Devine added: "This policy directive represents a significant breakthrough, but it is no substitute for Congress to legislate permanent rights for national security whistleblowers, with third party enforcement the same as for other employees. That is the case in the Privacy Act and Equal Employment Opportunity Act, two other remedial employee laws that provide intelligence employees access to the same boards and courts as all other federal workers."
The Directive includes the following major advances in national security whistleblower rights:
- Extension of Whistleblower Protection Act (WPA) free speech rights banning retaliation against intelligence community employees for disclosures within institutional channels, including their supervisors. These are workers at organizations like the Central Intelligence Agency (CIA), Defense Intelligence Agency (DIA), National Security Agency (NSA), and intelligence units in nearly all other government agencies.
- Extension of WPA free speech rights and protection against retaliation to all federal workers for decisions on access to security clearances.
- Extension of anti-retaliation rights to intelligence committee employees for exercise of appeals and grievances.
- Requirement that each agency issue consistent due process rights certified by the Director of National Intelligence, in intra-agency appeals of security clearance decisions.
- Provision for "make whole" relief for those whose rights are violated, including reinstatement, reassignment and compensatory damages.
- Provision of appeal rights to a committee of Inspectors General for review of agency compliance with the Directive.
- Requirement for agency regulations within 270 days to implement the new rights.
- Requirement of agency programs for outreach, education and counseling on the new rights.
- Requirement for Offices of Inspector General to issue dedicated procedures for protection of whistleblowers against retaliation.
- Reassurance that everything in the Directive is additive to current employee rights and remedies, not substitutive.
The Directive does not include –
- Any independent, third party due process to enforce the rights.
- Protection for pre-clearance "suitability" decisions on whether an employee can apply for a security clearance, which permits retaliatory firings before clearance actions begin.
- Any change in current law to provide protection for disclosures to Congress or the public, even of unclassified information, which currently are unprotected.
Devine put the new reform in perspective: "President Obama has crafted a significant 'anti-leaks' reform, because employees finally have a legally-protected alternative. Whenever they bypass agency channels they lose their rights against harassment. Now that the President has done his share, Congress needs to finish what he started."
Contact: Tom Devine, GAP Legal Director
Phone: 202.457.0034, ext. 124, 240.888.4080 (cell)
Contact: Dylan Blaylock, GAP Communications Director
Phone: 202.457.0034, ext. 137