Challenges in Defending National Security Whistleblowers

By Jesselyn Radack, Director, Whistleblower & Source Protection Program at ExposeFacts

War crimes, mass surveillance, torture: some of the biggest stories in modern history relied on whistleblowers in national security and intelligence agencies. They came forward at great risk to expose the truth. Their revelations illuminated shadowy corruption of our most fundamental values, our most cherished rights and the integrity of our core democratic institutions.

And yet, the legal protections and internal avenues for these whistleblowers are badly broken. Statutory protections are filled with gaps and exemptions that leave them highly exposed. Internal channels are sometimes worse than ineffective  the offices tasked with protecting whistleblowers are often used to retaliate against them. Beyond administrative retaliation, whistleblowers increasingly face harsh criminal prosecution. And extreme secrecy requirements often impede their defense attorneys. What follows is a brief tour of this fraught territory.

Limited Statutory Protections

A complex patchwork of laws and executive orders apply to national security whistleblowers: chiefly, the Whistleblower Protection Enhancement Act, the Intelligence Community Whistleblower Protection Act and Presidential Policy Directive 19. Even taken together, these have numerous gaps and flaws.

WPEA

The Whistleblower Protection Enhancement Act (WPEA) prohibits the government from taking adverse personnel actions against government employees who make protected disclosures. Retaliation covers actions like unwarranted transfers, demotions, pay cuts or termination. These sanctions often involve career-ending side effects that cannot effectively be challenged or remedied under the WPEA, from revocation of security clearances, to blemished personnel records, to blacklisting.

A complicating factor in defending national security whistleblowers arises from the classification system, which can be byzantine in its complexity.

Moreover, the WPEA does NOT apply to employees in positions of a confidential or policymaking nature  a wide swath of national security whistleblowers. Nor does it apply to anyone in the FBI, CIA, NSA, nor any other executive body engaged in primarily foreign intelligence or counter-intel activity (the FBI has its own regulatory system, which suffers from a number of fatal flaws). It seems counter-intuitive, but the most comprehensive whistleblower protection law does not cover some of the better-known national security whistleblowers: Edward Snowden and Thomas Drake (NSA), John Kiriakou (CIA), Sibel Edmonds (FBI) and Chelsea Manning (Army intelligence).

ICWPA

The Intelligence Community Whistleblower Protection Act (ICWPA) may cover some employees who are not covered by the WPEA. It allows them to report an urgent concern (even one involving classified information) to the agencys Inspector General and, ultimately, to the congressional intelligence committees. However, this is a problem because many Offices of Inspectors General, which are independent watchdogs within federal agencies, have been left vacant for extended periods of time. Additionally, the ICWPA does not provide employees with protection against retaliation if they make such disclosures. More ominously, Inspectors General have a sordid history of retaliating against the very employees that they are supposed to protect. The Trump administration seems to be waging a bureaucratic battle to gut the Intelligence Community Inspector General completely.

PPD-19

Presidential Policy Directive (PPD-19) is an executive order that requires intelligence community agencies to provide employees with protection from retaliation if they disclose classified information to a supervisor, their agency head, the relevant Inspector General, or the Director of National Intelligence. However, it is rife with gaps. If disclosures through approved channels prove unsuccessful, there is no provision for disclosure outside the agency or intelligence committees. Obviously, whistleblowing is unlikely to have much effect in cases where the agency itself is complicit in the wrongdoing. PPD-19 does not apply when an agency head determines an employee should be fired for national security reasons. Nor does it apply to employees in positions of a policymaking nature, or to members of the Armed Forces, like Chelsea Manning or any of the Air Force personnel who blew the whistle on abuses in the drone program.



Of course, the above-mentioned protections only apply to administrative and employment retaliation. As punitive as these measures are, they do not rise to the level of trying to incarcerate someone  a chilling new trend.

The Criminalization of Whistleblowing

Over the last 10 years we have seen a rise in the use of the Espionage Act to criminally pursue national security whistleblowers, like Thomas Drake, Edward Snowden and Reality Winner. The Espionage Act was written in 1917 to stop actual spies and saboteurs, though it was frequently used against dissidents instead. A section of the law regarding disclosures of sensitive information enables its modern usage against whistleblowers. While there are numerous other laws that could be applied to the mishandling of classified information, several features of the Espionage Act provide obvious advantages to the government.



The Espionage Act ensures that the proceedings will happen largely in secret and safely away from the court of public opinion. Moreover, the Espionage Act is effectively a strict liability crime, meaning a whistleblowers intent is irrelevant and thus bars a defendant from raising a public interest defense. It doesn't matter if an individual divulged information to the enemy for profit (traditional spying), or to the press because it was in the publics interest to know (whistleblowing). The distinction is most vividly illustrated by the fact that the newspapers that published Snowdens revelations won a Pulitzer for their reporting, but he continues to live in Russia to avoid prosecution, or worse. And finally, charging under the Espionage Act insinuates treason, even if the defendant is not literally accused of such. This serves to smear and isolate the accused, making them too controversial for all but the most ardent defenders of civil liberties.

Extreme Secrecy Impedes Defense

A complicating factor in defending national security whistleblowers arises from the classification system, which can be byzantine in its complexity.



Getting the necessary security clearances for the defense team can cause delays which might lead to longer pre-trial detention and added legal costs. Attorney contact with a client is often restricted. For example, they need to meet in Sensitive Compartmented Information Facilities, which can limit or prohibit electronic devices and even note-taking. Work product may have to be kept in secure storage facilities, not offices. Witnesses or jury members are often subjected to special security measures.



The Classified Information Procedures Act (CIPA) sets out measures to protect classified information during court proceedings while still ensuring a fair and open trial, but in practice these procedures can be creatively weaponized by prosecutors. For example, the government has attempted to prohibit Reality Winner from citing or perhaps even seeing certain evidence, even if it is publicly available. In Thomas Drakes case, the government tried to invoke a "Silent Witness Rule," wherein the judge, jury and lawyers must speak in code indecipherable to the public.

Internal Channels vs. Public Disclosures

Generally, whistleblower laws do not extend to public leaks of classified information, though some of the most significant leaks in modern history have been of exactly that nature. Few people take issue with the idea that certain things should be kept secret, such as sources and methods, nuclear designs, troop movements and undercover identities. We all want whistleblowers to be able to go through safe, effective internal channels to report wrongdoing while protecting legitimate secrets. But what happens when those channels are dysfunctional or nonexistent?



Unfortunately, the governments failure to ensure safe internal channels for whistleblowers, and its selective enforcement of leaks, show that it is more concerned with hiding its own ineptitude or lawbreaking than it is with protecting information that might truly put Americans at risk.



The pretext of protecting national security is most clear when contrasting the harsh treatment of legitimate whistleblowers who exposed gross abuses of public trust with the kid-glove treatment given to officials who released classified information for personal or political purposes, like General Petraeus who gave classified material to his journalist-girlfriend, or CIA Director Leon Panetta who revealed classified information to the filmmakers of Zero Dark Thirty.

Accountability is Security

Protecting the workforce that protects us is essential. It keeps us safe, but it also keeps us informed to hold the government accountable  something that is fundamental to the effective functioning of a free and open democratic nation. Unfortunately, the laws that protect whistleblowers can hamstring the ones we most need to hear from. That protects neither the conscientious employee, nor the public they serve. Employees should feel encouraged and secure in reporting malfeasance, and whistleblower laws ideally should ensure that public servants do not have to choose their conscience over their career.

Next: Nick Schwellenbach: The Modern Politics of American Whistleblowing