DHS Union Asks for Removal of 'Illegal Gag Order' Asking Employees to Report on Colleagues

A recent directive sent to Homeland Security Department workers asking them to inform on colleagues they believe are leaking information constitutes an “illegal gag order,” according to a group of DHS employees and a whistleblower advocacy group. They have asked the agency to amend the communication. 

The American Federation of Government Employees council representing U.S. Citizenship and Immigration Services employees and the Government Accountability Project took issue with an Oct. 13 guidance from DHS Undersecretary for Management Randolph D. "Tex" Alles reminding employees of their obligations not to disclose confidential or classified information to unauthorized individuals. The groups noted that any such directive is required by federal statute to remind employees of their rights under whistleblower protection laws. 

In his message, Alles said DHS strives to remain transparent but must protect itself from “the harmful effects of unauthorized disclosures, whether deliberate or inadvertent.” Such disclosure, he said, could damage national security, reveal sources and jeopardize the safety of federal personnel. Alles urged employees to report to their security offices anyone they suspect of disclosing classified or otherwise restricted information—including draft documents—to unauthorized individuals. He also asked them to deny requests for information “outside the scope of the requestor’s responsibilities.” 

The AFGE council and GAP said the Trump administration has repeatedly made such “unlawful” requests to DHS employees.

“This communication mirrors past attempts by DHS and other federal departments to chill the exercise of employees’ whistleblower rights,” they said in a letter to DHS Secretary Chad Wolf. 

Alles’ message failed to mention employees’ rights when disclosing wrongdoing, the union and whistleblower advocacy group said, violating the “anti-gag” provision of the 2012 Whistleblower Protection Enhancement Act. They noted the Office of Special Counsel, which enforces whistleblower protection statute, has repeatedly reminded agencies of their obligations to include such language in messages like the one Alles sent. The groups also said the requirement that employees seek approval from Operations Security before sending sensitive documents violated the prior restraint provision of the first amendment to the Constitution. 

The potential repercussions of the directive “should not be trivialized,” the groups said. 

“Employees reading this DHS communication may not understand that their right to make protected whistleblower disclosures supersedes restrictions your directive places on this right,” they wrote. “Even employees who know their rights may be intimidated from speaking out of fear of being accused of violating agency policy or being reported by their colleagues.”

The organizations called on DHS to “immediately reissue” the directive with language that conforms with whistleblower law and removes any language that asks employees to report on their colleagues. 

“Federal employees have taken an oath to uphold and defend the Constitution of the United States against all enemies, foreign and domestic,” Danielle Spooner, president of the union representing USCIS employees, said in a statement. “If left unchallenged, this action by the Department of Homeland Security will deter employees from reporting wrongdoing—and will damage morale by creating a climate of fear and mistrust within the workforce.”

Tom Devine, Legal director for GAP, said the guidance’s illegality was clear cut. 

“The violation is not a gray area for judgment calls,” Devine said. “As a law enforcement agency, DHS needs to end a pattern of gags that are illegal from top to bottom of the rule of law.”

DHS did not respond to multiple requests for comment.