Protecting Whistleblowers with Access to Classified Information
As the director of national intelligence, James Clapper has been credited with increasing transparency by disseminating information including about whistleblower rights, yet those rights remain severely limited. Clapper this week published a new training curriculum on whistleblower rights for all federal employees and contractors with access to classified information, even as critics point out that effective recourse for reporting problems remains limited.
The Protecting Whistleblowers with Acess to Classified Information Course is a four-part training curriculum. It is designed to train all government employees, from analysts in intelligence agencies to Postal Office workers, in reporting “illegality, waste, fraud, and abuse while protecting classified national security information,” according to a blog post shared on the intelligence community’s Tumblr page.
"The curriculum includes stand-alone modules that address (1) general information on whistleblowing and the process for making a protected disclosure; (2) processes for addressing adverse, retaliatory actions affecting a security clearance; (3) processes for addressing adverse, retaliatory personnel actions; and (4) best practices for managers and supervisors. The training also defines key terms and provides references for applicable whistleblower laws and policies. This training is provided as a resource for Executive Branch agencies and is intended to be customized to suit each agency’s whistleblower training program."
Jesselyn Radack, the national security and human rights director at whistleblower protection nonprofit ExposeFacts, wrote: “The guidance is not bad, but falls victim to the typical problem institutions have protecting whistleblowers: agencies like whistleblowers in theory, but when a specific instance of fraud, waste, mismanagement, abuse of power or dangerous behavior is challenged, the IC has proven time and again that it is unable and unwilling to police itself,”
Former NSA official Thomas Drake,attempted to seek out official channels to alert the government to what he believed to be illegal mismanagement and waste within the NSA — inside the intelligence community and then in Congress. After contacting a journalist, he was indicted under the Espionage Act, and spent months battling the charges, which were ultimately dropped. He pled guilty to a misdemeanor, and his intelligence career was ended.
“The problem is not training,” Drake wrote, “Blowing the whistle too often threatens one’s ability to hold a clearance (a condition of continuing employment in the national security arena), raises trust issues, jeopardizes one’s job and pension, or far worse.” He described Clapper’s initiative as “lots of nice sounding boilerplate” language with little formal weight, leaving “it up to the individual agencies to implement.”
For years, intelligence community whistleblowers have been hobbled by ineffective, weak protections. When they attempt to raise complaints, whether about the behavior of coworkers, fraud, or illegal conduct, they’ve faced years in court trying to get their security clearances back, or have their names cleared. “Nothing in the guidance changes that dynamic,” Raddack wrote.
Intelligence community employees have few options for recourse when they are fired or retaliated against, and can only launch internal complaints under very specific conditions, like violations of federal law or waste of funds. Disclosures to the public are entirely unprotected, and the government has sought to prosecute leakers under the Espionage Act — preventing them from raising a public interest defense.
These new whistleblower classes “probably won’t bring a real cultural change in and of themselves,” Bradley Moss, national security attorney with experience representing intelligence community whistleblowers, wrote. “How much will people really pay attention to them? Unclear. How much will senior management consider them when making decisions? Unclear.” He continued, “It will require real legislative change, with real, substantive right to judicial review, for the culture to truly change, and even then, it will take time.”
Congress Steps In To Protect FBI Whistle Blowers With New Bill: H.R. 5790
The House this week passed a small amendment to bolster the FBI’s dismal whistleblower protections. Moss, the national security attorney, suggests the change is “small but welcome,” offering FBI employees more opportunity to approach administrative judges to seek redress against retaliation.
-SECRET SOURCES: WHISTLEBLOWERS, NATIONAL SECURITY, AND FREE EXPRESSION
-What Is the Whistleblower Act? - Definition, Rights & Protection
-Protecting Whistleblowers with Access to Classified Information
-Intelligence Chief Publishes New Training Guide to Teach Whistleblower Rights