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Protecting Whistleblowers since 1977

TechDirt: The Proper Channels For Whistleblowing Still Mostly A Good Way For Messengers To Get Shot

September 28, 2016
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Whistleblower protections offered by the federal government are great in theory. In practice, they're a mess. This administration has prosecuted more whistleblowers than all previous administrations combined. The proper channels for reporting concerns are designed to deter complaints. Those that do use the proper channels are frequently exposed by those handling the complaints, leading to retaliatory actions that built-in protections don't offer an adequate remedy for.

Perhaps the ultimate insult is that the proper channels lead directly to two committees that have -- for the most part -- staunchly defended agencies like the NSA against criticism and any legislative attempts to scale back domestic surveillance programs. The House and Senate Intelligence Committees are the "proper channels," whose offered protections can only be seen as the hollowest of promises, especially after the House Intelligence Committee's lie-packed response to calls for Snowden's pardon.

What the federal government offers to whistleblowers is a damned if you do/don't proposition. Bypass the proper channels and brace yourself for prosecution. Stay within the defined lanes and expect nothing to change -- except maybe your security clearance, pay grade, or chances of advancement within the government.

Congress doesn’t have much legal power to protect intelligence community employees from such retaliation. The Pentagon’s inspector general website concedes Congress cannot “grant special statutory protection for intelligence community employees from reprisal for whistleblowing.”

In most cases of personal or professional retaliation, it ends up being the whistleblower’s problem, says Tom Devine, the legal director for the Government Accountability Project. “The problem is that whistleblowers making most complaints proceed at their own risk,” he said in an interview. “There are no independent due process protections for any intelligence community whistleblowers. And contractors don’t even have the right to an independent investigation unless there’s security clearance retaliation.”

The limited evidence that has surfaced about using the "proper" whistleblower channels suggests the protections granted by the government are mostly meaningless. The intelligence committees won't comment on the treatment of government employees who have approached them to blow the whistle. Government contractors working within the intelligence community are even more tight-lipped, suggesting even civilians are on their own when when attached to government programs or projects.

The few reports that have made it out into the open indicate it's almost impossible for a whistleblower to prove any actions taken against them post-whistleblowing are actually retaliatory. An Inspector General's investigation of a whistleblower's retaliation complaints determined that anything that had happened to the whistleblower could not be conclusively linked to the Defense Department employee's whistleblowing.

All that can be determined is that dozens of whistleblower complaints do make their way to the intelligence committees every year. But even this is based on the assertions of the House Intelligence Committee, which refused to provide any further details. The outcome of the whistleblowing remains under wraps and there are no publicly-released statistics that total the number of complaints, much less which percentage of complaints are found substantial and investigated further.

Government employees and contractors are just expected to trust the federal government which, given its response to whistleblowers over the past two decades, isn't going to nudge edge cases away from bypassing the laughable "protections" and proceeding directly to journalists willing to actually protect their sources.

Author: 
Tim Cushing
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