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The Reluctant Whistleblower: Does the President's Policy Directive 19 Do Enough to Protect National Security and Intelligence Whistle Blowers

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ylawbrief.com/wp-content/uploads/2012/10/Chaz-Gates-whistleblower-150×150.jpg” alt=”” width=”150″ height=”150″ />On October 10, 2012, President Obama issued Presidential Policy Directive 19, “Protecting Whistleblowers with Access to Classified Information.”  The directive provides whistleblower protections to national security and intelligence employees with access to classified information.  In particular, it prevents employers from retaliating against intelligence whistleblowers who report cases of fraud, waste, and abuse.

The President’s directive is particularly significant given that this administration has prosecuted a record number of whistleblowers over the past few years.  Most notable of the six total officials the administration has prosecuted is PFC Bradley Manning, an Army intelligence analyst who the administration accused of providing classified documents to Julian Assange, the now infamous WikiLeaks fugitive.  Some critics have claimed that the administration’s aggressive action against intelligence whistleblowers “chills dissent, curtails a free

press, and betrays Obama’s initial promise to usher in a new era of open government.”  This article analyzes the strength of the whistleblower protections outlined in the President’s recent policy directive to determine if it in fact allows for more open disclosure.

Federal law, under the Whistleblower Protection Act, protects many federal employees from employer retaliation when they report misconduct.  Intelligence officials, however, are exempt from these protections.  As a result, intelligence officials who reveal misconduct within their respective agency could face retaliation from their employer ranging from a restriction on their

access to classified information to adverse personnel action.  One can certainly presume that, in a field premised on confidentiality and integrity, intelligence officials could potentially be reluctant to disclose even gross levels of misconduct if they knew they risked retaliation.

The new directive attempts to reduce national security and intelligence official’s reluctant disclosure of misconduct in two ways.  First, the policy provides protection by strictly prohibiting federal employers and executive branch officials from taking personnel action or restricting an employee’ access to classified information as reprisal for the employee’s protected disclosure, which consists of disclosure related to waste, fraud, or abuse.  Second, the directive establishes a clear review process as it gives agency heads 270 days to certify to the Director of National Intelligence that a personnel review process is put in place for employees who seek to provide protected disclosure under the new directive.  If the employee exhausts all options available under the certified review process, then he or she can request an external review through the Inspector General of the intelligence community.  The administration’s idea behind this policy is that a clear review process and protection against adverse personnel action may allay the employment security concerns of intelligence officials and result in more open disclosure.

Despite the stated protections provided in the President’s policy directive, there is concern that the protections lack appropriate due process enforcement.  According to Tom Devine, legal director at the Government Accountability Project, “congressional action [is necessary] to make the rights [in the policy directive] permanent, comprehensive, and enforceable through due-process teeth.”  The constitutional Due Process clause requires the government to allow an individual the opportunity to be heard in court before it deprives that person from any of his or her fundamental rights such as life, liberty, and property.  A court, however, will only hear a case from an individual who has standing, which is a claim recognized by law.  Only Congress can pass laws, therefore, the President’s recently issued policy directive does not carry the full force of law.  Because the federal whistleblower law does not cover intelligence officials, a court may determine that intelligence officials lack legal standing and they would therefore have no due process claim to enforce in court.  Without proper due process protections, intelligence whistleblowers would place their job and livelihood in jeopardy.

In a recent statement, Angela Canterberry, the director of public policy at the Project On Government Oversight, framed the issue perfectly, stating, “While this directive is not a panacea, it begins to fill a large void in whistleblower protections and lays the framework for more government accountability where it is sorely needed. Because the President directs agencies to create procedures for internal review of claims, we will be very interested in the rulemaking and strength of the due process rights in practice.”

So, the President’s policy directive provides clear protections within the executive branch for national security and intelligence whistleblowers.  What is not clear, however, is whether those whistleblowers can expect full due process protection when it really matters.  With the country’s attention focused on the upcoming presidential election, this issue will likely be one of many waiting on the incoming President and Congress.

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