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Why Did Congress Add an Intelligence Community Loophole to the Contractor Whistleblower Protections in NDAA Bill?

3:00 pm in Uncategorized by MSPB Watch

The National Whistleblowers Center is on record that Department of Defense contractors already had access to jury trials, and that Section 827(e) of the NDAA Bill, the IC loophole, (now codified at 41 U.S.C. 4712(e)) was a new provision that did not previously exist in the law.

So why did it get tacked on to a bill supposedly enhancing rights for government contractors who blow the whistle?

Here’s a relevant timeline of events related to NDAA lobbying:

  • Fourth Quarter of 2012: The Government Accountability Project lobbies Congress for passage of H.R. 4310 (the NDAA bill).
  • Monday, Dec. 10, 2012: Via email, GAP solicits signatures for an organizational petition letter (.docx).
  • Monday, Dec. 17: GAP emails the signatories to the petition letter, saying that “[t]he following has not been publicly announced yet, but we have been informed that the federal contractor provision – through our advocacy and staff negotiations – has overcome opposition.” (Emphasis added.)
  • Tuesday, Dec. 18: A House/Senate conference approves section 827(e), stripping protections for intelligence community contractors.
  • Wednesday, Dec. 19: GAP asks the signatories to hold off on publicizing the petition letter.
  • Wednesday, Dec. 19: NWC issues a “Take Action” alert, both via email and a website announcement, for the public to “urge Congress to protect National Security Whistleblowers.”
  • Friday, Dec. 21: Congress passes the NDAA bill with the loophole intact.
  • Friday, Dec. 21: GAP praises Congress for its action but also criticizes the House Permanent Select Committee on Intelligence for insisting on inclusion of the loophole.
  • Monday, Dec. 24: GAP emails members of the whistleblower community with news of the bill’s passage.
  • Wednesday, Jan. 2: President Obama signs the NDAA bill, issues a signing statement that concerns some members of Congress and divides GAP.

Please note: this bill would not have protected Edward Snowden, even assuming the loophole was not enacted and he used approved channels, because the bill takes effect only on July 1, 2013 (see Sec. 827(i)) and applies to contracts and task orders entered on or after that date.

But this bill also does nothing to protect others who are concerned, as Snowden was.

The Newly-Passed Federal Contractor Whistleblower Protection Law Would Not Have Helped Edward Snowden

7:44 pm in Uncategorized by MSPB Watch

Last December, Congress passed (and the President signed), the National Defense Authorization Act of 2013. Contained in that bill was section 828, now codified at 41 U.S.C. 4712, which, beginning July 1, 2013, will protect disclosures made by government contractors to any member of Congress, an Inspector General, the GAO, a contract oversight employee in an agency, authorized DOJ or law enforcement agencies, a court or grand jury, or a management official at the employing contractor with authority to investigate wrongdoing.

However, and this is a big however, there is an exception for “any element of the intelligence community, as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a (4))” or to

any disclosure made by an employee of a contractor, subcontractor, or grantee of an element of the intelligence community if such disclosure—

(A) relates to an activity of an element of the intelligence community; or
(B) was discovered during contract, subcontract, or grantee services provided to an element of the intelligence community.

Congress inserted the exception last December, as described here.

Was there a pre-existing avenue to disclose wrongdoing to an Inspector General or Congress? Perhaps, as the NDAA builds upon 10 U.S.C. 2409, which covers contractors on a “Department of Defense contract.” Someone more versed in these issues would be able to clarify if NSA contractors are covered by this provision.

I suspect we will learn much about Mr. Snowden’s disclosures and whether they check off this legal box or that in the days and weeks to come. However, I don’t think that’s what’s really at issue here. At it’s heart, Mr. Snowden’s courageous act of civil disobedience challenges this country’s decline into despotism. It’s all the more striking that he did it with likely no legal protections at all, as if nothing had changed between now and the days of the Pentagon Papers disclosures, over 40 years ago.

What’s Missing from the Adulatory Coverage of Obama’s Whistleblower Protections

2:01 pm in Uncategorized by MSPB Watch

Several articles have emerged that contain praise from non-profit groups toward President Obama for taking steps to protect whistleblowers, albeit at a time when more whistleblowers are prosecuted by his administration than ever before. The coverage goes something like this:

Obama’s Justice Department is prosecuting a number of whistleblowers under the Espionage Act.

A government secrecy expert opines that this is unprecedented.

The article mentions Obama’s efforts to expand whistleblower protections through legislation or executive action.

Non-profit groups such as the Government Accountability Project and the Project on Government Oversight applaud Obama for doing more than any other president in history to protect whistleblowers.

What’s missing, however, is any discussion that such steps are mandated by law, specifically 5 U.S.C. 2301(c), enacted by the Civil Service Reform Act of 1978:

(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. [Emphasis added.]

Key among those “merit system principles” is the protection of whistleblowers.

So is it a fact that Obama has ”done more to affirmatively protect whistleblowers than any other president,” as POGO’s Angela Canterbury recently stated? Yes.

However, it is not out of benevolence or favored policy, but his constitutional duty to “take care that the laws be faithfully executed.” The fact that a president is finally executing a 1978 law should not be news or grounds for applause. We elect presidents to execute the laws.

What’s newsworthy is why it took 35 years to get to this point.