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House Approves Intelligence Whistleblower Rights

Legislation to create first enforceable statutory whistleblower for Intelligence Agency employees.

(Washington, DC) – Today, the Government Accountability Project (GAP) praised final congressional action by the House of Representatives to restore intelligence community whistleblower protections that had been removed from the Whistleblower Protection Enhancement Act (WPEA) of 2012. The bill, once signed into law, would create the first enforceable statutory whistleblower rights for government workers at intelligence agencies.

Title VI of the Intelligence Authorization Act for FY 2014, S. 1681 was passed late yesterday in the House of Representatives after being passed last week in the Senate. The bill expands and codifies actions detailed in Presidential Policy Directive (PPD) 19, issued by President Obama in October 2012, as well as some internal agency regulations. The president is expected to sign the bill into law in the coming days. These protections are stronger than those within PPD 19, which does not explicitly protect disclosures to Congress.

Congressional action was the result of leadership from two members of the Senate Select Committee on Intelligence (SSCI): Senator Ron Wyden (D-Or) who sponsored the provision at SSCI committee markup, and Senator Susan Collins (R-Maine) who successfully negotiated with House offices that previously had opposed the provision.

GAP Legal Director Tom Devine commented:

Congress deserves credit for landmark legislation creating enforceable whistleblower rights within intelligence agencies and protections against security clearance retaliation throughout the civil service. Senators Collins and Wyden deserve awards for closing the last major loophole in whistleblower rights for government workers. This legislation is the first step toward a safe alternative to leaks for potential whistleblowers in the intelligence community. While not a final solution, it is the breakthrough shift to challenge abuses of power and corruption by intelligence agencies without risking threats to national security.

We appreciate that the House Permanent Select Committee on Intelligence ended its prior opposition to rights for intelligence community government workers who utilize internal systems to defend the public against fraud, waste and abuse. Hopefully, the House Intelligence Committee will agree to restore accountability for intelligence community contractors by permitting the return of their best practice whistleblower rights, which worked effectively and without any reported side effects from 2007-12. In December 2012, the House Intelligence Committee successfully demanded their removal, just six months before Edward Snowden chose to disclose his evidence of surveillance. Congress can take no more effective action to stop leaks and protect taxpayers than restoring those rights cancelled in 2012.

The law includes the following:

  • Protection for intelligence community government workers against retaliation banned by the Whistleblower Protection Act (WPA). Disclosures by whistleblowers would be protected when made within their agencies, to the Office of Inspector General, or to the select congressional intelligence committees.
  • Extension of these free speech rights to workers holding security clearances. Whistleblowing now will be accepted as an affirmative defense in legal proceedings involving these workers, although agencies that normally are defendants will still control initial hearings, and legal burdens of proof are modified for national security concerns.
  • Application of WPEA provisions banning loopholes in protection based on context, timing, formality, job status or other exceptions.
  • Equal protection for those exercising personnel rights or providing testimony.
  • Appeal rights to an administrative board selected by the Director of National Intelligence.
  • Appeal board authority to rule do novo that an agency action is illegal whistleblower retaliation, with authority to order continued employment, payment of attorney fees and costs, and payment of up to $300,000 in compensatory damages.
  • Preservation of all existing rights, including limited whistleblower protection already available for FBI employees.

Despite passage of these new rights, Devine cautioned, “While a landmark first step, I couldn’t in good conscience reassure any whistleblower that the new rights make it safe to make disclosures within the system.” He added that weaknesses in the legislation that must be addressed in future versions of it include:

  • Lack of protection against contradictory agency nondisclosure policies, forms or agreements, which are a safeguard in the WPEA’s “anti-gag” provision.
  • Lack of hearings at an independent forum not controlled by the institution.
  • Agency authority to justify actions with classified information denied to the employee.
  • No employee rights to compel production of classified evidence that could make a difference in the case, except to prove that disclosures occurred.
  • No employee rights to make congressional disclosures outside the select intelligence committees.
  • No protection against security clearance actions of less than a year.
  • A loophole permitting summary action by agency heads.
  • An explicit ban on judicial review.
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