Year-End Legislation Could Close National Security Loophole, Protect Government Whistleblowers

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As the year draws to a close, the Obama administration is on the defensive in the aftermath of the continuing leaks from former NSA contractor Edward Snowden, and President Obama recently suggested during a year-end press conference that he is considering making changes to the National Security Administration’s dragnet surveillance programs during his two-week vacation in Hawaii.

But a newly introduced Senate bill hopes to build on the momentum of the year’s most important leaks by cementing whistleblower protections for federal employees whose jobs are deemed “sensitive” to national security. Senator Jon Tester introduced Senate Bill 1809 this month, with cosponsors Charles Grassley (R-Iowa) and Claire McCaskill (D-Mo), after similar legislation was introduced in the House in August.

The legislation would allow federal employees who do not require a security clearance or access to classified information to appeal any personnel decision to the Merit Systems Protection Board, a right that was stripped earlier this year after a federal court decision.

Tester’s bill comes on the heels of two cases of low-level defense feds who were trying to appeal their supervisors’ actions to the merit board. Rhonda Conyers, an accounting technician was suspended indefinitely and Devon Northover, a commissary worker was demoted. Both of their positions are considered “sensitive.”

Good government groups have pointed out that under current rules, supervisors could punish employees like Conyers and Northover or others, including potential federal workers who choose to speak up about governmental fraud, waste, neglect or other abuses, with impunity.

The legislation offers a counteroffensive to actions taken by the Obama administration and federal courts to remove independent due process enforcement for civil service appeals. It’s being done through what critics are calling a potentially all-encompassing national security loophole, whereby federal agencies can deny virtually any federal employee the right to defend themselves based on their jobs’ “sensitive” status.

In August, the Federal Circuit Court of Appeals expanded the Supreme Court’s 1988 Egan v. Navy decision, which eliminated civil service due process rights to appeal decisions for security clearance and access to classified information. The expansion covers all employees in positions deemed “sensitive” to national security.

Now, federal employees have been stripped of all independent due process rights for administrative hearings, when officials remove national security “sensitive” employees from their jobs. Prior to the 1988 Egan decision, the right to civil service appeals had been standard since 1883.

Tom Devine, legal director for the Government Accountability Project (GAP) called the lack of due process rights for civil service employees “the Achilles’ heel of whistleblower rights and good government principles.” According to Devine, the “sensitive” job designation is arbitrary, dating back to a McCarthy-era designation that was a prerequisite to apply for a security clearance. But today’s “sensitive” jobs don’t apply to just a subset of federal workers who have security clearances, the designation can apply to nearly any federal government employee.

And the designation is expanded further with proposed rules from the Office of Personnel Management (OPM) and the Office of the Director of National Intelligence (ODNI). The OPM rule, for instance, would designate all law enforcement positions as national security “sensitive.”

“That would remove all offices of inspectors general, all border-patrol, the customs service, all criminal investigators from the merit system, and in GAP’s experience, they’re the most frequent and most significant whistleblowers on government abuses of power,” Devine told Truthout.

In a hearing on the issue this month, Sen. Tester expressed many of the same concerns as Devine, that federal employees with almost no impact on national security were being unjustly stripped of their due process rights. The OPM and ODNI argued the proposed rules would offer standardization across the federal workforce.

The legislation may help to reverse one front in the Obama administration’s “war on whistleblowers,” which has seen the administration prosecute twice as many whistleblowers as all previous administrations combined and launch programs such as “Insider Threat,” which encourages federal employees to keep tabs on their co-workers to prevent further leaks to the press.

“The sensitive jobs designation, the ‘Insider Threat’ program, and the Espionage Act prosecutions all illustrate an unrestrained blitzkrieg by the intelligence bureaucracy against normal rules of law that most Americans consider the bedrock of a free society,” Devine said.

The legislation may also become necessary to preserve Congress’ unanimous 2012 mandate for the Whistleblower Protection Enhancement Act, he added.

In an age of unprecedented leaks from whistleblowers like Edward Snowden and Chelsea Manning, it’s hard to discern whether Congress will succumb to the Obama administration’s national security justifications for the cancellation of the civil service due process system. But even with the administration’s war on whistleblowers, it remains unlikely that Congress will do so, as previous similar attempts by presidents have been thwarted by Congressional action.

“We don’t think Congress has become so intimidated by cries of national security woes that they would cancel the rule of law which has minimized politics and bureaucratic fiefdoms for close to 150 years,” Devine said. “It would be unprecedented if Congress were willing to cancel the civil service system without even any record of unsolvable problems or any newly emerging trends that justify bureaucratic anarchy.”