White House issues policy directive [promises?] national security employees whistleblower protections

« Dissenters’ Digest for September 2012

POGO embarrasses watchdogs everywhere with sycophantic Obama email »

White House issues policy directive [promises?] national security employees whistleblower protections
By: MSPB Watch Thursday October 11, 2012 5:36 am	Tweet10

(photo: Scott Ableman / flickr)

Update: apparently this directive doesn’t “grant” protections so much as promises them, or something. See the comments below.

Here is a copy of the directive [PDF], obtained from federalnewsradio.com. Here is some background about what it entails:

GAP Praises President’s Action to Protect National Security Whistleblowers (Government Accountability Project)
Intelligence community employees to gain whistleblower protections (FederalNewsRadio.com)
President Obama Issues Landmark Directive for National Security and Intelligence Community Whistleblowers (Project On Government Oversight)

“Protected disclosure” is defined in this document as follows (emphasis added):

(5) The term “Protected Disclosure” means:

(a) a disclosure of information by the employee to a supervisor in the employee’s direct chain of command up to and including the head of the employing agency, to the Inspector General of the employing agency or Intelligence Community Element, to the Director of National Intelligence, to the Inspector General of the Intelligence Community, or to an employee designated by any of the above officials for the purpose of receiving such disclosures, that the employee reasonably believes evidences (i) a violation of any law, rule, or regulation; or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;

(b) any communication described by and that complies with subsection (a)(1), (d), or (h) of section 8H of the Inspector General Act of 1978 (5 U.S.C. App.); subsection (d)(5)(A) of section 17 of the Central Intelligence Agency Act of 1949 (50 U.S.C. 403q); or subsection (k)(5)(A), (D), or (G), of section l03H of the National Security Act of 1947 (50 U.S.C. 403-3h);

(c) the exercise of any appeal, complaint, or grievance with regard to the violation of Section A or B of this directive;

(d) lawfully participating in an investigation or proceeding regarding a violation of Section A or B of this directive; or

(e) cooperating with or disclosing information to an Inspector General, in accordance with applicable provisions of law in connection with an audit, inspection, or investigation conducted by the Inspector General,

if the actions described under subparagraphs (c) through (e) do not result in the employee disclosing classified information or other information contrary to law.

This raises an interesting question: why doesn’t this definition include the Office of Special Counsel as an authorized recipient of (presumably classified) information?

After all, OSC is authorized by law to receive classified disclosures. So where does it fit in with this new scheme? In fact, OSC appears only once, in a discussion regarding assessing the efficacy of provisions deterring retaliation, on page 5. Why not educate employees about the OSC option? The document calls on national security officials to provide guidance for individual officers or employees regarding what disclosures are protected (also on page 5).

For more on this issue, see the following:

27 Comments Recommend

27 Responses to White House issues policy directive [promises?] national security employees whistleblower protections

KrisAinTX October 11th, 2012 at 6:57 am 1

My initial layman’s question, obviously, is – Does this extend to Bradley Manning’s alleged activities?

Reply
MSPB Watch October 11th, 2012 at 7:15 am 2

No because he allegedly disclosed information in a manner that “result[ed] in the employee disclosing classified information or other information contrary to law.”

Also this is a directive that has no force of law on its own, it requires agencies to issue regulations for their own employees.

Reply
KrisAinTX October 11th, 2012 at 7:25 am 3

In response to MSPB Watch @ 2

Thank you. I assumed the White House was crafty enough to draft language that wouldn’t jeopardize their case against PFC Manning. Just wanted to clarify.

Thank you for the work you do, and for an informative article.

Reply
xyno October 11th, 2012 at 7:34 am 4

No mention of authorized congressional committees either. This appears to be an attempt to keep things contained within a limited part of the executive.

Reply
MSPB Watch October 11th, 2012 at 7:37 am 5

In response to KrisAinTX @ 3

Thanks for the kind words.

Reply
MSPB Watch October 11th, 2012 at 7:38 am 6

In response to xyno @ 4

It’s also 35 years late in the making.

From http://mspbwatch.net/2012/10/11/white-house-issues-policy-directive-granting-national-security-employees-whistleblower-protections/#comment-1568:

The roots of this directive come from the Civil Service Reform Act of 1978.

From 5 U.S.C. 2301(c):

(c) In administering the provisions of this chapter—

(1) with respect to any agency (as defined in section 2302 (a)(2)(C) of this title), the President shall, pursuant to the authority otherwise available under this title, take any action, including the issuance of rules, regulations, or directives; and

(2) with respect to any entity in the executive branch which is not such an agency or part of such an agency, the head of such entity shall, pursuant to authority otherwise available, take any action, including the issuance of rules, regulations, or directives;

which is consistent with the provisions of this title and which the President or the head, as the case may be, determines is necessary to ensure that personnel management is based on and embodies the merit system principles.

The agencies listed in 5 U.S.C. 2302(a)(2)(C) are:

(C) “agency” means an Executive agency and the Government Printing Office, but does not include—

(i) a Government corporation, except in the case of an alleged prohibited personnel practice described under subsection (b)(8);

(ii) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, and, as determined by the President, any Executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities; or

(iii) the Government Accountability Office.

Here’s the relevant legislative history.

From H. Conf. Rep. No. 95-1717, Oct. 5, 1978, page 129 (http://mspbwatch.files.wordpress.com/2011/11/h-conf-rep-no-95-1717.pdf)

The conference substitute in section 2301(c) provides that in administering the provisions of this chapter the President shall have the same authority as contained in the Senate bill to take action to insure that personnel management is based on and embodies the merit system principles. With respect to any entity in the executive branch which is excluded under section 2302, the head of that entity must, pursuant to authority otherwise available, and subject to the inherent executive powers of the President, take action which is consistent with the provisions of this title and which the agency head determines is necessary to insure that personnel management in that entity is based on and embodies the merit system principles.

See also Senate Conf. Rep. No. 95-1272, Oct. 4, 1978, page 129 (http://mspbwatch.files.wordpress.com/2011/11/s-rep-no-95-1272.pdf); House Rep. No. 95-1403, July 31, 1978, page 16 (http://mspbwatch.files.wordpress.com/2011/11/h-rep-no-95-1403.pdf); Senate Rep. No. 95-969, July 10, 1978, page 19 (http://mspbwatch.files.wordpress.com/2011/11/s-rep-no-95-969.pdf).

Reply
nonpartisanliberal October 11th, 2012 at 7:56 am 7

The intent isn’t to protect whistle-blowers, but to establish a basis for prosecuting them if they disclose anything to anyone who would hold the government accountable. The reason why whistle-blowers do what they do is that their supervisors are protecting the bad actors and hiding their own incompetence or corruption.

Reply
newcarguy October 11th, 2012 at 8:08 am 8

In response to KrisAinTX @ 1

“Missed it by that much.”
Maxwell Smart

Reply
newcarguy October 11th, 2012 at 8:11 am 9

In response to nonpartisanliberal @ 7

The intent isn’t to protect whistle-blowers, but to establish a basis for prosecuting them

npl, let me see, you are blowing the whistle on the White House’s phony whistle blowing directive. I suppose that makes you a “whistle blower” once removed.

Reply
newcarguy October 11th, 2012 at 8:13 am 10

In response to MSPB Watch @ 5

May I add my kudos and thanks as well.

Reply
MSPB Watch October 11th, 2012 at 8:27 am 11

I left a message with OSC’s communications director, Ann O’Hanlon, and asked if OSC was involved in the directive. 202-254-3600.

I also emailed the public affairs officer for the Director of National Intelligence, Shawn Turner (shawn.turner@dni.gov) and asked if OSC was involved and if not, why.

Reply
MSPB Watch October 11th, 2012 at 8:29 am 12

Also, the following instruction is available on OSC’s website, https://www.osc.gov/oscefile/:

You are currently on an OSC Unclassified Internet Site. As such, the information you are viewing is designed to convey only information pertaining to the filing of disclosures that do not contain classified information. You may not disclose classified information or file or submit a classified disclosure form via the Disclosure of Information form (OSC Form 12) on this web site. If your disclosure concerns both classified and unclassified information, you can submit unclassified information using the disclosure form and make arrangements to submit the classified information to OSC in accordance with governing laws and regulations.

If you are seeking to make a disclosure involving classified information, you can report this information to OSC using appropriate secure channels. If you have questions about how to disclose classified information to OSC or would like to make arrangements to submit a disclosure containing Secret or Top Secret classified information, you may contact OSC’s Disclosure Unit at 1-800-572-2249 (unsecured line).

Reply
goNPA October 11th, 2012 at 11:10 am 13

This is smoke and mirrors for the most anti-whistleblower administration in the history of our republic. For documentation and references see Whistleblowers – http://newprogs.org/blog/2011/11/09/whistleblowers-under-democraticrepublican-uni-party

Reply
MSPB Watch October 11th, 2012 at 11:31 am 14

In response to goNPA @ 13

It should be interesting to see the reaction from bona fide whistleblowers and disinterested parties. Some initial reaction does not bode well. And the open government groups are starting to pat themselves on the back. More of the same veal pen patterns emerging… should we expect anything else?

Reply
MSPB Watch October 11th, 2012 at 11:44 am 15

Here’s a press release by the National Whistleblowers Center:

http://www.webwire.com/ViewPressRel.asp?aId=162475

Directive Lacks Due Process and Real Legal Protections

Washington, D.C. October 11, 2012 – Yesterday, the Obama Administration issued a Presidential Policy Directive designed to “protect” national security whistleblowers. The National Whistleblowers Center recognizes the Directive as a small step forward, but strongly criticizes it as failing to provide any real or substantive legal rights for national security employees.

The Directive appears on its face to help national security whistleblowers by requiring these agencies to establish a process for whistleblowers to seek review of prohibited personnel actions. However, the last paragraph (Section G) insulates the government from any liability to whistleblowers and bars whistleblowers from relying on the Directive to enforce any legal rights. This closing paragraph explicitly limits the legal enforceability of any the rights or procedures established under the Directive:

“This directive is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person”

Under the Directive, the final decision of an agency head to fire a whistleblower is not subject to review, meaning that whistleblowers cannot challenge the decision of the agency in court or otherwise.

Stephen M. Kohn, the Executive Director of the National Whistleblower Center, issued the following statement:

“The Directive fails to provide whistleblowers with any new enforceable legal rights. In fact, the Directive specifically states that it does not ’create any right or benefit’ for whistleblowers. This section renders the Directive toothless. We are concerned that national security employees may think that this Directive gives them some much-needed protections when it does not”

“The NWC is concerned that this toothless policy will be used to justify Congress’s failure to enact legal protections for national security whistleblowers”

Reply
ralphbon October 11th, 2012 at 12:28 pm 16

In response to MSPB Watch @ 15

Thanks for the post and especially the real-time follow-up in the comments. In light of the National Whistleblower Center’s statement, you might consider revising the title of the post to lose the word “granting.”

Reply
MSPB Watch October 11th, 2012 at 12:29 pm 17

“Victory” for national security whistleblowers, we’re told: http://pogoblog.typepad.com/pogo/2012/10/victory-for-national-security-and-intelligence-community-whistleblowers.html

Reply
MSPB Watch October 11th, 2012 at 12:31 pm 18

In response to ralphbon @ 16

Fixed, thanks.

Reply
MSPB Watch October 11th, 2012 at 12:38 pm 19

Some reactions from actual whistleblowers who became advocates:

http://www.washingtonpost.com/blogs/federal-eye/post/obama-issues-whistleblower-directive-to-security-agencies/2012/10/10/5e2cbbfe-132d-11e2-ba83-a7a396e6b2a7_comment.html?commentID=washingtonpost.com/ECHO/item/1349980318-117-175

In theory, I agree with Mr. Devine. This directive is little more than a bandaid on a bleeding artery. All federal employees are mandated by law and oath to report all violations of law. Leaving security and intelligence whistleblowers in the position of lesser full whistleblower protections will have a devastating effect.

[snip]

The Whistleblower Protection Enhancement Act (WPEA) had the legislative intent by Congress to create resounding change. That change could have been achieved with the inclusion of the entire advocacy community having a chance to work together. Instead the new laws destiny was left in the hands of lobbyists such as POGO who are aligned with this administration and their political grant providers. Angela Canterbury is not a whistleblower and have never been a federal employee. She knows little of what whistleblowers truly need and deserve. POGO is an organization that excludes input from federal employee whistleblowers and takes credit for documents created by federal whistleblowers. This Open Letter by federal whistleblowers was blocked by POGO and GAP from seeing the light of day. I believe Tom Devine now knows he should not have cut off the people who wanted the best possible Bill to go to the President. The good enough attitude reaped more quagmires for feds to overcome. Thank goodness National Whistleblowers Center (NWC) and my organization had the fortitude not to compromise our principles for Hill back scratching. Nor will we.
EBrown, CEO, Whistlewatch.org

http://whistleblowing.us/2012/10/president-obama-signs-directive-on-national-security-whistleblowing/

…

The President directs intelligence agencies to provide their employees with a review process for adverse actions taken against them. That, alone, is inadequate to really protect employees from retaliation. When agencies write the rules, the rules benefit the agencies.

…

The new directive does give employees alleging retaliation the right to request an external review by a panel of inspectors general. This offers some benefit, although inspectors general are sometimes as reluctant to protect whistleblowers as the agencies they oversee. But, once this panel has completed its review, their findings go to the agency head for a final decision as to providing relief to the whistleblower. This undermines the benefit, if any, provided by the inspectors general review.

…

What the new directive does is give intelligence community whistleblowers lots of process without substantially changing the result. Most likely, the “reviews” will materialize as retaliatory investigations of the employee (now given the cover of a presidential directive) giving agencies an opportunity to supplement their smear files while ignoring evidence and witnesses favorable to the employee. Potentially, the whistleblower would emerge from the process worse off than when it began.

The directive provides no right to external review, i.e., for appeal to a federal court, and denies its “protections” to disclosures an employee makes outside the organization. That would include Congress, although employees supposedly have an existing right to take disclosures to Congress (with restrictions for classified disclosures).

If there is any potential benefit for whistleblowers in the new directive, the lack of retroactivity in the directive will give agencies an incentive to step up adverse personnel actions against whistleblowers prior to July 2013. And, if Mitt Romney wins in November, all bets are off.

Reply
MSPB Watch October 11th, 2012 at 1:02 pm 20

ACLU pats self on back, too. ACLU is part of the same “good government” veal pen cartel that exploits + suppresses whistleblowers and stymies real reform, called the Make It Safe Campaign. MISC’s leaderships houses ACLU, GAP, POGO, Union of Concerned Scientists, and the American Federation of Government Employees. A bunch of despicable little thugs with god complexes.

http://www.aclu.org/national-security/aclu-commends-obama-new-policy-directive-protecting-national-security

MISC website: http://makeitsafecampaign.org/news/

Reply
MSPB Watch October 11th, 2012 at 4:02 pm 21

Comments such as these are instructive:

As long as the public is aware of gross injustice to whistleblowers, the well paid lawyers at GAP and POGO will have lucrative employment. Both organizations keep beating the drum about injustice to whistleblowers, but neither proposes effective legislation. Our founding fathers listed trial by jury in civil matters as a basic human right. See Amendment VII of the U.S. Constitution. However, all proposals omit including jury trials for complaints filed by whistleblowers. If such were permitted, the whistleblower would win in almost every case, and the bosses of the civil service would be exposed for what they are: mafiosi. Organized crime cannot exist without a strict code of silence. The present agencies charged with assisting whistleblowers find justice, namely the U.S. Office of Special Counsel and Merit System Protection Board, as well as the U.S. Court of Appeals for the Federal Circuit, are criminal organizations. They will never admit that any whistleblower was ever intentionally subjected to reprisal for saying something that the boss did not like and needed to cover up. Supposedly, only 2% of whistleblowers receive some form of compensation. I am officially among this 2%. My reward, brokered by the Special Counsel, was being placed on a blacklist for all employment, not just federal civil service employment, from 1999 to date. During my five appeals before the MSPB as a whistleblower and as a veteran, felonies, included two witnesses committing perjury and being caught at it, perjury on affidavits provable by documentary evidence, obstruction of justice proven by before-and-after copies of the same documents, and fraud committed by an administrative judge of the Merit System Protection Board when other evidence for a decision in favor ot the agency was lacking, are routine parts of the adjudication process. When confronted with irrefutable evidence of the crimes, the judges respong that the MSPB is not a criminal court and has no jurisdiction to do anything about fraud, perjury, or obstruction of justice committed during its proceedings. This new law will simply persuade formerly “unprotected” federal employees to waste their time and money on adjudication by agencies that exist only to mask the misdeeds of other agencies by fraud and deception. If the whole truth became public, it would become clear to everyone just how much the bosses of these agencies belong in federal prisons. Only when the criminals are locked up will the crimes stop.

Reply
nixonclinbushbama October 12th, 2012 at 4:11 am 22

Window dressing.

Kabuki.

Most secretive administration ever, after running in 2008 on being the most transparent administration ever.

Reply
Todd October 12th, 2012 at 9:04 am 23

Still no protection health care whistleblowers which in part accounts for why 400,000 die each year from medical errors https://www.impartial-review.com/stories/survey-nearly-one-in-three-americans-report-medical-mistakes-364

Reply
MSPB Watch October 12th, 2012 at 10:02 am 24

Kevin Gosztola and Marcy Wheeler weigh in:

http://dissenter.firedoglake.com/2012/10/12/for-national-security-whistleblowers-obama-hits-the-reset-button/

http://www.emptywheel.net/2012/10/11/obama-provides-paper-protection-for-whistleblowers-why-now/

Reply
Elliott October 12th, 2012 at 10:04 am 25

In response to MSPB Watch @ 24

with you leading the way!

Reply
MSPB Watch October 12th, 2012 at 11:02 am 26

In response to Elliott @ 25

It’s personal for me… I’ve been interacting with GAP and POGO for the last year, getting the runaround and veal pen treatment from them. Traded one corrupt environment (federal government) for another (whistleblower advocacy).

Reply
MSPB Watch October 13th, 2012 at 6:38 am 27

POGO embarrasses itself by kissing up to Obama for this lame directive: http://my.firedoglake.com/mspbwatch/2012/10/13/pogo-embarrasses-watchdogs-everywhere-with-sycophantic-obama-email/

Reply

« Dissenters’ Digest for September 2012

POGO embarrasses watchdogs everywhere with sycophantic Obama email »