Intel Contractors’ Whistleblower Rights Are a Work in Progress

President Obama has taken flak from whistleblower advocates for his handling of domestic surveillance leaks by former National Security Agency contractor Edward Snowden.

The White House continues to rebut charges by whistleblower advocates that Obama overstated the protections available to contractors for intelligence agencies. And the intelligence community’s ombudsman on whistleblower issues tells Government Executive that the president’s key directive on the topic is a work in progress.

At an Aug. 9 press conference, Obama responded to questions about the government’s intended prosecution of Snowden by saying, “If the concern was that somehow this was the only way to get this information out to the public, I signed an executive order well before Mr. Snowden leaked this information that provided whistleblower protection to the intelligence community -- for the first time. So there were other avenues available for somebody whose conscience was stirred and thought that they needed to question government actions.”

Advocacy groups pounced, saying the president misspoke. “If the president had bothered to read his own executive order, he would have known that it was not implemented at all when Snowden blew the whistle on the National Security Agency,” read a blog post by Jesselyn Radack, human rights director for the Government Accountability Project, which supports Snowden. “Further, [the October directive] fails to provide protected legal channels to contractor positions such as Snowden’s.”

Angela Canterbury, director of public policy at the nonprofit Project on Government Oversight, said in a Tuesday statement to Government Executive, "Unfortunately, intelligence and national security contractors have been specifically excluded from all the recent whistleblower reforms. Either the president should order, or Congress should legislate, to ensure there are legitimate protections for lawful disclosures by these contractors who work almost entirely in the shadows."

The White House stands by its boss’ characterization of the resources available to whistleblowers in Snowden’s position, noting that a Defense Department regulation going back to 1982, among other sources, has prohibited retaliation against whistleblower employees of contractors and that Obama’s October 2012 directive required intelligence agencies to prepare similar enforcement procedures.

"The president's recent directive provided unprecedented and widely praised protection to whistleblowers in the intelligence agencies,” said a statement on Tuesday from White House spokesman Eric Schultz. “It also provided a roadmap to guide those agencies as they devise specific policies to implement the president's directive. Other federal laws specifically referenced in the directive prohibit retaliation against federal contractors. The bottom line is that Mr. Snowden could have lawfully raised his concerns without making unauthorized disclosures."

Intelligence agency draft regulations on whistleblowers, which were delivered to the Office of the Director of National Intelligence by July 8, remain in flux, however. The prospects for rights for whistleblowers who work as contractors to intelligence agencies remains a complex calculus.

Dan Meyer, the intelligence community’s independent executive director for whistleblowing and source protection who for six months spearheaded an interagency working group preparing to implement Obama’s directive, acknowledged that there has been “some miscommunication” on the coverage of intel contractor employees.

“The regulations are now in the certification stage, so it’s premature to talk about what the final regulations will say,” he said in an interview. “There was a sense of finality in the transparency community due to miscommunication,” but no one can know until Oct. 1, he noted, adding that some drafts have been posted online.

What some critics aren’t grasping, Meyer said, is that “all whistleblower protection systems are after the fact,” for both federal employees and contractors. “It doesn’t mean you get a letter saying, I’m a whistleblower and I’m protected. An investigation has to take place, allegations filed, then there must be substantiation, which is a low percentage of overall cases, then a remedy provided,” he said.

Meyer said the president “gets credit for producing the directive [PPD 19], which was the first intelligence-community-wide set of whistleblower protections.” He described the 1998 Intelligence Community Whistleblower Protection Act as a “misnomer” that dealt more narrowly with the ability of employees to transmit classified material to Congress.

The Defense Department, where Meyer worked for more than a decade, has championed contractor whistleblower protections, and officials lobbied for broadening of such rights in various iterations of the National Defense Authorization Act.

Bridget Serchak, a spokeswoman for the Pentagon inspector general’s office, responding to a query, pointed out that section 10 us the U.S. code has long mentioned that contractor employees enjoy “protection for disclosure of certain information.” But the version signed by President Obama in January, which took effect on July 1, “specifically exempts intelligence community contractors, subcontractors, and grantees” from the protections, she noted. 

Tom Devine, legal director of the Government Accountability Project, says the reason the fiscal 2013 defense bill removed intelligence contractors’ whistleblower protections is that House Intelligence Committee Chairman Rep. Mike Rogers, R-Mich., “insisted on removing preexisting rights for the intel community in Defense contracts as the price for extending it to the rest of the government.” Such rights had been championed for years in bills offered by Sen. Claire McCaskill, D-Mo., and Rep. Jackie Speier, D-Calif., among others.

“The Defense Department inspector general and the administration were all supportive of it as best-practice whistleblower rights,” Devine said. “But Rogers made it a point to sabotage it.”

Rogers’ staff did not respond to requests for comment, but the chairman told The Washington Post in June in discussing Snowden’s choices that resources exist. “There are already strong protections in place for true whistleblowers -- they can take their concerns to a variety of inspectors general and ombudsmen throughout the intelligence community, and they can talk to the House and Senate intelligence committees.”

One risk in giving contracted employees too much leeway, says Meyer, is that “the process can end in a jury trial once you’ve exhausted the inspector general process. That’s what triggers huge concerns about taking classified material into court,” he said. “We’d have a hard time figuring out where or when, if a judge wants it, and it takes a long time.”

Alan Chvotkin, executive vice president and counsel of the Professional Services Council, said the law as it now stands clearly denies protections for intelligence contractors. “The president’s directive is protection for employees in the intel community, and contractors are not employees.”

While companies “strongly encourage” prospective whistleblowers to raise their concerns with inspectors general, “many of the employees working in the intel space actually don’t know the source of their contract, be it DoD, ONDI or NSA,” he added, noting agencies differ in their procedures. “They know they have a function, a security responsibility and a clearance, and they have charge numbers and how to bill the work, but they don’t know the source.”

What would help contractors, Chvotkin said, is a policy to “harmonize the rules” by agency and employee status. “We’ve been chipping away at the edges of what’s covered and who’s covered so that it’s become too hard for employees and companies and agencies” to deal with the ambiguity, he said.

“There is no substitute for codified rights,” said GAP’s Devine. “But to be fair, the president is doing what he can to sweep in contractors” under the October directive. Devine’s discussions with White House aides indicate they believe the White House has the authority to act alone, he said, perhaps by using “expansive definitions of government employee.”

Sometime between the time Obama signed the October order and the stripping of contractor protections in the defense bill, Devine said, the issue fell off the White House radar.

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This story has been updated to name a Defense Department source. 

(Image via Keith A Frith/Shutterstock.com)