Intelligence Bill Would Enhance Whistleblower Protections

Among the many items on Congress’s crowded July agenda is floor action on a three-year catch-up on the Intelligence Community authorization bill, a largely bipartisan package drafted in both chambers, with Senate provisions that would enhance protections for whistleblowers.

On June 26, the House Select Intelligence Committee by voice vote cleared its version (H.R. 3494) of what is called the Damon Paul Nelson and Matthew Young Pollard Intelligence Authorization Act (named for two recently deceased congressional staffers), following similar bipartisan approval of S. 1589 by the Senate Intelligence panel in May.

The usual panoply of issues includes requiring the CIA to investigate Russia’s meddling in U.S. elections, codifying a recent reorganization of the security clearance process, enhancing the Intelligence Community inspector general’s oversight through greater consistency and an appeals process, enhancing career path flexibility and benefits for cybersecurity experts and providing paid parental leave for the civilian workforce.

The bills—which combine texts for fiscal 2018, 2019 and 2020—also aim to protect the government’s technology supply chain by creating a task force within the Office of the Director of National Intelligence and improving procurement to defend against intrusion.

Both bills would require an unclassified report identifying those who carried out, ordered or were complicit in the death of U.S.-based Saudi columnist Jamal Khashoggi, who was murdered in Istanbul.

The House version authorizes funding at roughly 1.4% above President Trump’s fiscal 2020 budget request. However, said House Intelligence Committee Chairman Rep. Adam Schiff, D-Calif., “it rejects the administration’s misguided use of Overseas Contingency Operations funding as a budget gimmick to evade existing budget caps put in place on a bipartisan basis by Congress, and it authorizes in the base budget those programs the Administration has explicitly identified as ‘OCO for base.’ ”

The Senate version “is vital for countering the growing threats posed by hostile foreign actors, including Russia, China and Iran, and for strengthening our nation’s election security,” said Senate Chairman Sen. Richard Burr, R-N.C., who filed an accompanying written report on June 11, weeks after his committee’s approval. “It also invests in the future of the Intelligence Community by improving personnel retention and recruitment, ensuring we have the best and brightest working to keep America safe.”

Ranking member Sen. Mark Warner, D-Va., praised its “provisions aimed at deterring foreign influence in our elections, tackling the technological threats from China as the U.S. and other nations move to 5G communications, revamping our outdated security clearance process, and enabling the IC to exchange talent with the private sector.”

At the request of the CIA, the Senate version would expand the definition of “covert agents” to include those unnamed employees who serve domestically (those serving overseas have long had protections for their identities). Some critics worry that the expanded definition would limit the agency’s accountability. “The expanded definition, if enacted, would likely imply increased withholding of historical and other intelligence records under the Freedom of Information Act,” wrote secrecy blogger Steven Aftergood of the Federation of American Scientists.

The whistleblower provisions in the Senate version will be the subject of a House-Senate conference after floor action. “No later than 1 year after the date of the enactment of this act,” the Senate version said, “the inspector general of the Intelligence Community, in consultation with the Intelligence Community Inspectors General Forum, shall complete a feasibility study on establishing a hotline whereby all complaints of whistleblowers relating to the intelligence community are automatically referred to the inspector general of the Intelligence Community.”

Many whistleblower provisions were championed by Sen. Ron Wyden, D-Ore. One would codify an appeals process for those in the IC who disclose verified waste, fraud and abuse. The Senate version would require “harmonization of whistleblower processes and procedures” across the Intel Community to maximize transparency and protections. In addition, the bill would seek to improve oversight, Wyden said, by allowing the IC watchdog to “track whistleblower complaints and ensure that policies are in place that assure that investigations are conducted and whistleblowers are protected from reprisals.” Whistleblowers themselves would gain access to attorneys with security clearances.

Those proposed reforms were welcomed by Dan Meyer, the former whistleblower ombudsman for the Intelligence Community now a law partner with Tully Rinckey in Washington.

The codified appeals process for whistleblowers who faced retaliation “would not have been required of the Congress had the inspectors general of the intelligence community performed their duties under the president’s directive these past five years,” he told Government Executive,  recommending that the IC create an administrative entity along the lines of the Merit Systems Protection Board. “The inspectors general have failed in the larger role, they can now be consigned to the lesser fact-finding role with which they feel more comfortable.”

The “harmonization” of the disparate whistleblower procedures,” said Meyer, who was removed from his post in 2018, is needed because “the post-911 intelligence reforms, as shown by intelligence community whistleblowing, is backsliding into the stovepipes and silos that existed prior to 9/11. Congress can now use the IAA to promote the true integration” stressed by previous Director James Clapper.

The Government Accountability Project, which has represented hundreds of whistleblowers, will pay close attention to the floor votes and coming House-Senate conference. “I’d call the whistleblower provisions inside this year's Senate's Intelligence Authorization Act a 'must-pass,’ ” Irvin McCullough, GAP’s national security analyst, told Government Executive. “We’ve consistently seen watchdogs betray the whistleblowers they’re entrusted to protect. These largely technical sections ensure stronger whistleblower protections and greater oversight over the watchdogs who enforce them.”