'Every Leak Makes Us Weak' Campaign Runs Risk of Discouraging Legitimate Disclosures

Wall posters at the Energy Department‘s headquarters warn employees that “Every leak makes us weak.” The campaign forms part of the governmentwide “insider threat” program aimed at deterring release of classified information, but whistleblower advocates are crying foul, pointing to the posters’ failure to distinguish between illegal leaking and employees’ rights to disclose waste, fraud and abuse.

The nonprofit Project on Government Oversight last week in a letter sent to Energy officials as well as the Office of Special Counsel called the campaign a “potential violation of the Whistleblower Protection Enhancement Act.” The group asked OSC to investigate.

“Even if inadvertent, deterring whistleblowing in an effort to stymie leaks makes the federal government less effective and less efficient,” wrote POGO Executive Director Danielle Brian to acting Special Counsel Adam Miles. “We recognize the security risks posed by insider threats and leaks of classified information; however, this communication by DOE management could be chilling legitimate whistleblowing because it fails to provide information about whistleblower rights, or distinguish between leaks of classified information and disclosures of unclassified government wrongdoing.”

The dramatic posters, which feature a dripping American flag, urge Energy staff to “report possible insider threat indicators to the Forrestal Local Insider Threat working Group,” via an email address or phone number. “Trust your instincts. We do.”

POGO invoked prominent lawmakers who wrote recent whistleblower laws and cited the Office of Special Counsel’s interpretation of Title 5 of the U.S. Code to “to consider management communications, including emails to staff, that fail to include required whistleblower disclosure language as violations of the law that require corrective action.” The letter also cited appropriations law that bans retaliation against or gagging of employees seeking to communicate with Congress.

In addition, POGO pointed to the ambiguity of the word “leak” in the minds of staff. And it quoted the executive order creating the insider threat program as having anticipated wrongful implementation by some agencies. The order states that “the activities directed … shall not seek to deter, detect, or mitigate disclosures of information by government employees or contractors that are lawful under and protected by the Intelligence Community Whistleblower Protection Act of 1998, Whistleblower Protection Act of 1989, Inspector General Act of 1978, or similar statutes, regulations, or policies.”

POGO said issuing a new memo with “a strong message from DOE leaders to all employees and contractor staff stating that they are protected when blowing the whistle is the first step towards solving this problem.”

Copies were sent to Energy Secretary Rick Perry; Energy’s acting Inspector General April Stephenson; Sen. Chuck Grassley, R-Iowa; and Reps. Elijah Cummings, D-Md.; Mark Meadows, R-N.C.; and Frank Pallone, D- N.J.

Grassley, a longtime whistleblower advocate who earlier this year warned the Trump administration against de-emphasizing the rights of whistleblowers, said in a Monday statement to Government Executive, “The Department of Energy and all other agencies have a responsibility to be absolutely clear with employees about what is an unlawful leak and what is protected whistleblowing.  They are not the same, and Congress has gone to great lengths to ensure that agencies and employees know the difference.  Whistleblowing promotes good government, and it should be encouraged.”

Cummings said he backed POGO’s request for an investigation. “I warned top White House officials a week after the Inauguration that their actions were violating federal law and endangering legitimate whistleblowers, so it is difficult to believe that the Trump Administration’s repeated abuses are accidental, inadvertent or innocent,” he said by email. “They need to stop engaging in these violations immediately and respect the rights of whistleblowers who report waste, fraud, and abuse in order to protect the American taxpayers. “

Though the insider threat deterrence campaign pre-dates the Trump administration, Attorney General Jeff Sessions on Aug. 4 appeared with Director of National Intelligence Dan Coats to announce that “we intend to reach a new level of effectiveness” in curbing employee leaks. “No one is entitled to surreptitiously fight their battles in the media by revealing sensitive government information,” he said. “No government can be effective when its leaders cannot discuss sensitive matters in confidence or to talk freely in confidence with foreign leaders.”

The Justice Department, Sessions added, in just seven months under Trump “has already received nearly as many criminal referrals involving unauthorized disclosures of classified information as we received in the last three years combined.”  He added, “We are taking a stand. This culture of leaking must stop.”

Neither Energy nor the Justice Department responded by publication time to requests for comment on Energy’s poster campaign.

An Office of Special Counsel spokeswoman confirmed receipt of the letter and said the agency is evaluating it.