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Protecting Whistleblowers since 1977

Senator Wyden Right to Challenge Anti-Whistleblower Provision in Intel Authorization Act

Shanna Devine, May 05, 2011

GAP recently warned with other good government groups (in a joint letter to the Senate) that a broadly-crafted provision in the Intelligence Authorization Act, if passed, would undermine Congress' ability to ensure proper checks on the Intelligence Community (IC), and afford IC agency heads sweeping new power to retaliate against national security whistleblowers.

Sec. 403 of the Intelligence Authorization Act for FY 2011 (S. 719) grants the Director of National Intelligence (DNI) and IC chiefs the unprecedented authority to penalize active and former IC employees – at a minimum taking away their pensions – based simply on the Director's subjective "determination" that an employee knowingly disclosed classified information to an unauthorized party. The legislation has no controls on the Director's exercise of this discretion. There are no mandatory internal or independent appeal rights for due process challenges to the Director's personal judgment call. No proof is required. If the DNI says it is, then it is.

While the Senate Select Committee on Intelligence (SSCI) passed this legislation with an overwhelming 12-3 vote, Senator Wyden (D-OR) zeroed in on Sec. 403, which by relying on management's good faith could undermine the whole legislation and discourage would-be whistleblowers from working within agency channels. In committee report remarks, Wyden stated:

Everyone hopes that intelligence agency managers and supervisors will act honorably and protect whistleblowers who come forward and go through proper channels to report waste, fraud and abuse in national security agencies, but this is unfortunately not always the reality.

Wyden, a member of the Senate Intelligence Committee for over a decade, rightfully cautions that the provision's striking ambiguity allows the DNI to interpret Congress' intent in a manner that legalizes baseless reprisal actions and narrows the scope of eligible parties to conduct IC oversight:

I am also especially troubled that section 403 is silent regarding disclosures to Congress and inspectors general... It is unfortunately entirely plausible to me that a given intelligence agency could conclude that a written submission to the congressional intelligence committees or an agency Inspector General is an ''unauthorized publication,'' and that the whistleblower who submitted it is thereby subject to punishment under section 403.

The question remains, why did the SSIC author legislation that silences its lifeline of information – national security whistleblowers – by granting IC heads unbridled, albeit unrequested, authority to retaliate?

It is entirely unclear to me what standard agency heads would use to "determine" that a particular employee was guilty of disclosing information...And as I pointed out to my colleagues during the committee markup of this bill, neither the Director of National Intelligence nor any of the intelligence agency heads have asked Congress for this authority.

According to the committee report, national security heads not only didn't request this sweeping authority, but have not indicated how they would exercise it. Oversight on its part? Doubtful, given the rate at which IC management has employed secrecy to gag and then conceal retaliation against countless brave whistleblowers. Or perhaps the DNI has provided a response, discussed it in SSCI's backrooms, and stamped it classified. Senator Feinstein, as Chairman of the Senate Intelligence Committee, has a responsibility to eliminate this room for speculation and either join Wyden in his effort to add some damage control to Sec. 403, or remove it all together. The DNI's silence is, at best, foreshadowing to the Chairman of what to expect from would-be national security whistleblowers, if this bill is enacted.

Senator Wyden has stated that he will not support unanimous consent passage of S. 719 until stated whistleblower implications are addressed. The whistleblower community applauds the Senator for having the good sense to put the breaks on reckless policy. His prudent objections have forced the Senate to re-examine Sec. 403 before disavowing itself of oversight capabilities. Senator Wyden's colleagues need to follow suit, if they want SSCI to be relevant in ensuring our nation's safety, which begins with protecting our frontlines of defense.
 

Shanna Devine is Legislative Coordinator for the Government Accountability Project, the nation's leading whistleblower advocacy organization.