Though Flawed, Senate Intelligence Authorization Bill Contains Protections for Intelligence Agency Whistleblowers

The United States Senate passed an intelligence authorization bill that, while inadequate and flawed, contains sections which address protections for intelligence agency employees who become whistleblowers.

On the floor of the Senate, Democratic Senator Ron Wyden of Oregon, who worked to get these provisions included in the bill, celebrated the expansion of statutory protection for potential whistleblowers. He also criticized a directive signed by Director of National Intelligence (DNI) James Clapper that broadly prohibits employees from "unauthorized" contact with the media.

Without naming any specific whistleblowers or journalists, Wyden stated, "A lot of the progress that we have seen recently would not have happened without whistleblowers and without some of the intelligence agency employees who were willing to risk their very career to draw attention to real and serious problems. And I also want to make note of the fact that there were journalists--journalists who worked hard to report the facts responsibly and ensure and inform public debate that is so essential to our democracy."

He said that there was a section of the intelligence authorization bill that "strengthens the ability" of whistleblowers to come forward.

"It prohibits retaliation against intelligence whistleblowers who report misconduct using approved channels and it includes whistleblowers who have their security clearance unjustifiably revoked. Establishing these protections in statute in my view is an important advance forward," Wyden declared.

He explained that current laws and regulations include "channels" for blowing the whistle, which make it possible to alert an "oversight entity" so they will hopefully do something with the information. However, there are some key problems.

"[U]nfortunately reporting misconduct by your colleagues or by your agency doesn't always work out so well and that's why rocking the boat and reporting misconduct can sometimes be hazardous for an individual's career. And if a government employee thinks about blowing the whistle on possible misconduct and can see that their supervisor or someone in their chain of command is condoning or participating in that misconduct, the employee is rightly going to be concerned about possible retaliation"

Employees become concerned that they will not get a promotion or will lose their security clearance. The sections in the intelligence authorization bill are intended to prohibit retaliation of employees for "lawful disclosures" of information to the DNI, the Inspector General of the intelligence community, "the head of an employing agency, the appropriate inspector general of an employing agency, a congressional intelligence committee or a member of a congressional intelligence committee."

"Lawful disclosures" encompass any information an employee "reasonably believes" is evidence of a "violation of any federal law, rule or regulation" or evidence of "mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety."

Yet there is one fundamental flaw, which Wyden neglected to address in his remarks. The part of this section on enforcement states, "The President shall provide for the enforcement of this section." In other words, there is no enforcement mechanism unless President Barack Obama develops a means for enforcing protections.

There also is troubling broad language in the section on "corrective action," which relates to determining whether the revoking of a security clearance was retaliation or not. A disclosure is a "contributing factor" to the decision "unless the agency demonstrates by a preponderance of the evidence that it would have taken the same action in the absence of such disclosure, giving the utmost deference to the agency's assessment of the particular threat to the national security interests of the United States in the instant matter."

Statutorily, and without any mechanism for any proceeding in any court, this gives the leadership of any agency a huge amount of discretion to make the case, including retroactively, that actions that appear to be retaliation were justifiable regardless of the disclosure of information.

On Clapper's directive, which was signed on March 20, Wyden indicated, "I am troubled by how sweeping in nature this is. At the outset, this is supposed to prevent disclosures of genuinely sensitive information. That's obviously an important goal," but he added, "Don't keep employees from being able to talk about non-classified matters."