US President Obama has signed into law expanded whistleblower protections that cover intelligence agents for the first time. But the protections still do not apply to contractors, such as ex-NSA analyst Edward Snowden.
Five years after vowing to strengthen whistleblower rights, President Barack Obama has extended statutory protections to intelligence agency employees who report abuse, closing a major gap in a law at least ostensibly designed to shield federal workers from retaliation.
Part of the Intelligence Authorization Act of 2014, the provisions would protect intelligence agency employees from retaliation if they report waste, fraud or abuse to designated entities. Those entities include superiors at the agency in question, one of the inspector general watchdogs, and the House and Senate intelligence committees.
For the first time, intelligence agency employees can use whistleblowing as an affirmative defense if they suffer retaliation; for example, if their security clearance is taken away. In addition, they are protected from retaliation for cooperating with an investigation or providing testimony under oath. They can also appeal to an internal administrative board to have their grievances redressed.
"It's a significant precedent," Shanna Devine, the Government Accountability Project's legislative director, told DW. "No time before in history have there been enforceable statutory protections for intelligence community government employees."
Rights codified into law
In 2012, Congress passed and President Obama signed the Whistleblower Protection Enhancement Act (WPEA), which sought to bolster safeguards for federal employees who reveal waste, fraud or abuse. Although the WPEA originally included protections for intelligence agency employees, that language was removed from the legislation before the president signed it into law.
"Historically speaking, the intelligence community has rejected these types of protections and has been able to muster enough persuasive strength on the congressional intelligence committees to have language stripped from it," Mark Zaid, a lawyer who represents intelligence agency whistleblowers, told DW.
The White House subsequently sought to close the gap in the WPEA by issuing a presidential directive that extended whistleblower protections to intelligence agency employees. Although the directive carried the force of law, it could have been reversed at anytime by the current president or one of his successors.
"The presidential policy directive largely mirrors the protections included in the Intelligence Authorization Act, but the directive was not a statute," Devine said.
"Those rights couldn't be codified; it was essentially an executive order," she added. "These protections are very similar, but they have become law."
Lack of independent hearing
Although intelligence agency whistleblowers are now protected by an act of Congress, some lawyers are concerned that, in practice, the law could fall short of its aims. According to Zaid, internal reporting channels are often used to identify and punish whistleblowers instead of actually redressing their grievances.
"Now we supposedly have a substantive package, but we have to determine whether its effective or legitimate and that's only going to be determined by time when we have our first cases," Zaid said.
For example, whistleblowers can appeal to an administrative board under the new law, if they believe that they've been retaliated against for reporting abuse. But the board's members will all be selected by the director of national intelligence.
"In practice there are serious concerns about the access to a fair and independent hearing," Devine said. "You simply don't have an independent hearing, per se, through this new law. No, it's not a guarantee that a whistleblower will be protected when they exercise their rights under this new provision."
Contractors not covered
In addition, if an intelligence agency employee signs a non-disclosure agreement, they won't enjoy whistleblower protections at all. And defendants are not allowed to view the evidence against them if it's classified.
But perhaps most glaringly, intelligence agency contractors are not protected under the law. Former National Security Agency (NSA) analyst Edward Snowden, who revealed the agency's massive surveillance operations to the press, was a contractor employed with Booz Allen Hamilton.
According to Devine, the House intelligence committee, chaired by Representative Mike Rogers, stripped protections for contractors from previous legislation.
"From 2007-2012, through the stimulus law and the National Defense Authorization Act, contractors at select intelligence agencies did have very strong whistleblower rights, including access to due process and an independent hearing," Devine said.
"Those rights were removed in 2012, really just months before Snowden made his disclosures."