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Whistleblower Protections in USA Liberty Act Not Enough

DEEPLINKS BLOG
October 17, 2017

The USA Liberty Act fails to safeguard whistleblowers—both as federal employees and contractors—because of a total lack of protection from criminal prosecution. These shortcomings—which exist in other whistleblower protection laws—shine a light on much-needed Espionage Act reform, a law that has been used to stifle anti-war speech and punish political dissent.                                                        

Inside the recent House bill, which seeks reauthorization for a massive government surveillance tool, authors have extended whistleblower protections to contract employees, a group that, today, has no such protection.                                                

The Liberty Act attempts to bring parity between intelligence community employees and contract employees by amending Section 1104 of the National Security Act of 1947.

According to the act, employees for the CIA, NSA, Defense Intelligence Agency, Office of the Director of National Intelligence, National Geospatial-Intelligence Agency, and National Reconnaissance Office are protected from certain types of employer retaliation when reporting evidence of “a violation of any federal law, rule, or regulation,” or “mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” Employees working at agencies the President deems have a “primary function” of conducting foreign intelligence or counterintelligence are also covered by these protections.

Employees can’t be fired. Employees can’t be demoted. They can’t receive lower pay or benefits or be reassigned. And no “personnel actions” whatsoever can be ordered, actually, meaning no promotions or raises.

But employees are only protected from retaliation in the workplace. Entirely missing from Section 1104 of the National Security Act of 1947 are protections from criminal prosecution. That’s because the government treats whistleblowers differently from what they call leakers. According to the federal laws, government employees who make protected disclosures to approved government officials are whistleblowers, and they have protections; employees who deliver confidential information to newspapers are leakers. Leakers do not have protections.

Extending these whistleblower protections to contractors—while positive—is just an extension of the incomplete protections our federal employees currently receive. And, as written, the Liberty Act only protects contract employees from retaliation made by the government agency they contract with, not their direct employer. Contract employees work directly for private companies—like Lockheed Martin—that have contracts with the federal government for specific projects. The available data is unclear, but a 2010 investigation by The Washington Post revealed that “1,931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States.”

The problems continue. Currently, the Liberty Act, and Section 1104, do not specify how whistleblower protection is enforced.

Let’s say a contractor with Booz Allen Hamilton—the same contracting agency Edward Snowden briefly worked for when he confirmed widespread government surveillance to The Guardian in 2013—believes she has found evidence of an abuse of authority. According to the Liberty Act, she can present that evidence to a select number of individuals, which includes Director of National Intelligence Daniel Coats, Acting Inspector General of the Intelligence Community Wayne Stone, and any of the combined 38 members of the House of Representatives Permanent Select Committee on Intelligence and the U.S. Senate Select Committee on Intelligence. And, according to the Liberty Act, she will be protected from agency employer retaliation.

Maybe.

If the NSA still does fire the contractor, the Liberty Act does not explain how the contractor can fight back. There is no mention of appeals. There are no instructions for filing complaints. The bill—and the original National Security Act of 1947—has no bite.

The Liberty Act makes a good show of extending whistleblower protections to a separate—and steadily growing—class of employee. But the protections themselves are lacking. Contractors who offer confidential information to the press—like Reality Winner, who allegedly sent classified information to The Intercept—are still vulnerable under a World War I era law called The Espionage Act.

As we wrote, the Espionage Act has a history mired in xenophobia, with an ever-changing set of justifications for its use. University of Texas School of Law professor Stephen Vladeck lambasted the law in a 2016 opinion piece for The New York Daily News:

“Among many other shortcomings, the Espionage Act's vague provisions fail to differentiate between classical spying, leaking, and whistleblowing; are hopelessly overbroad in some of the conduct they prohibit (such as reading a newspaper story about leaked classified information); and fail to prohibit a fair amount of conduct that reasonable people might conclude should be illegal, such as discussing classified information in unclassified settings.”

Whistleblower protections, present in the National Security Act of 1947 and extended in the Liberty Act, are weakened by the U.S. government’s broad interpretation of the Espionage Act.  Though the law was intended to stop spies and potential state sabotage, it has been used to buttress McCarthyism and to sentence a former Presidential candidate to 10 years in prison. Today, it is used to charge individuals who bring confidential information to newspapers and publishing platforms.                                                                                             

Whistleblower protections to the entire intelligence community are lacking. Instead of treating contractors the same, contractors should—together with employees—be treated better.

Improve whistleblower protections. Reform the Espionage Act.

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