Introduction

President Barack Obama signed an executive order last week creating new protections for national security and intelligence community whistleblowers, effectively sidestepping a congressional impasse provoked by the reservations of congressional Republicans.

The order — formally known as “Presidential Policy Directive 19” and signed by Obama out of public view on Oct. 10 and without a White House announcement — directs intelligence agencies to establish procedures for the protection of employees reporting waste, fraud and abuse.

The order is meant to address longstanding concerns that whistleblowers in the intelligence agencies lacked legal protections like those available to employees of the Department of Defense and other federal agencies.

The new order bans retaliation against whistleblowers in the Central Intelligence Agency, the Defense Intelligence Agency, the National Security Agency and other intelligence organizations. Until now, these agencies were not specifically prohibited from retaliating against whistleblowers.

A House bill aimed at improving protections for most federal employees, known as the Whistleblower Protection Enhancement Act and passed by that chamber in September, lacked the safeguards ordered by Obama. Angela Canterbury, from the Washington, D.C. watchdog group Project on Government Oversight, said House Republicans had narrowed the bill’s focus due to worries that its provisions might encourage Wikileaks-type disclosures of sensitive information.

She called this a “red herring,” explaining that by protecting those with security clearances who want to blow the whistle on wrongdoing at intelligence agencies, a new law could have encouraged them to “use safe internal channels.” The Senate has yet to take up its own version of the bill.

In the meantime, Obama’s order “fills a vacuum,” according to Tom Devine, a legal adviser to the Government Accountability Project, a Washington, D.C. nonprofit that provides legal support for government whistleblowers, including many working on national security matters. The order could function as a “beachhead” for further reforms in future legislation, he says.

The executive order, which Devine said was devised by the White House over the past year, protects certain disclosures of classified information to Congress and agency inspector generals; creates an appeal channel for whistleblowers facing punishment; and promises that those who prove improper retaliation can be reinstated and given financial compensation. The Director of National Intelligence is responsible for ensuring that each agency puts new review procedures in place. (A spokesman for the DNI did not immediately respond to questions about this story.)

But one advocate said the order is “toothless” because the role it gives the DNI, who is an intelligence official. Stephen M. Kohn, the Executive Director of the Washington, D.C.-based National Whistleblower Center, another group that counsels whistleblowers, calls the directive a “smokescreen” that masks real reform. Kohn also highlighted a disclaimer in the presidential directive that he says cancels the order’s other provisions. “This directive is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law,” the order reads.

“We are concerned that national security employees may think that this directive gives them some much-needed protections when it does not,” Kohn says. But Canterbury says the order’s disclaimer is boilerplate for presidential directives and should not be read as undermining its real, and positive, changes.

White House spokesman Eric Schultz says the directive provides new recourse for those facing retaliation. Besides giving the Director of National Intelligence authority to oversee intelligence agencies handling of whistleblower cases, the order requires agencies for the first time to provide “whole” relief for employees whose right to free speech is violated, he noted.

“We’ll be pressing very hard to get permanent statutory fix,” Devine said.