In a friend-of-the-court filing dated Dec. 17, the Government Accountability Project argued that a provision in the National Defense Authorization Act of 2012 should be declared unconstitutionally vague as it might chill whistleblowers’ speech. In describing the legal landscape affecting whistleblowers’ rights, however, GAP painted an unduly narrow picture of the avenues currently available.

On page 11, counsel for GAP described the protections in the Whistleblower Protection Act as follows:

The primary legislation affecting federal whistleblowers, the Whistleblower Protection Act of 1989 (“WPA”), provides certain federal employees who report evidence of violations of law, rule or regulation including gross mismanagement, waste of funds, or substantial and specific danger to the public health or safety with some protection, including judicial review.  See 5 U.S.C. § 2302(b)(8).

It noted that “employees in the intelligence community are excluded from the WPA’s protections.”

The brief then continued to state that

[W]histleblowers in the intelligence community . . . are limited to internal administrative avenues. The Intelligence Community Whistleblower Protection Act of 1998 (“ICWPA”) is toothless and creates bureaucratic procedures that makes blowing the whistle an exercise in futility. [Emphasis added.]

This particular claim is false. By law, all executive branch employees have the right to make disclosures of classified (or unclassified) information externally–to the Office of Special Counsel. See 5 U.S.C. § 1213(a)(2). The exemption of intelligence workers from protections against reprisal, found in 5 U.S.C. § 2302(a)(2)(C)(ii), does not affect their right to make disclosures to the Office of Special Counsel.

As such, the ICWPA is not the only avenue to blow the whistle in the intelligence community. Though the WPA does not provide protections against reprisal to intelligence community employees, it does guarantee confidentiality, and an unfiltered channel to the National Security Advisor and relevant intelligence committees in Congress for intelligence-related disclosures. See 5 U.S.C. §§ 1213(h), (j).

Moreover, OSC recently accepted a disclosure from a former FBI employee (FBI is one of the agencies listed in 5 U.S.C. § 2302(a)(2)(C)(ii)), further demonstrating that disclosures by intelligence community employees may be made outside the ICWPA.

Update: In a YouTube video posted Dec. 18, OSC official Bruce Fong (at the 3:31 mark) said that

If your disclosure involves information that you believe might be prohibited from public disclosure, be very careful. You must use a protected channel in order to benefit from the protections of the whistleblower laws. So, if you have information in your disclosure that includes classified information, for example, make sure you use one of the protected channels. The office of inspector general is always a protected channel. So is the Office of Special Counsel. [Emphasis added.]

Whistle Suits (image: Truthout.org/flickr)

Dissenters’ Digest takes a look back at the week’s stories covering whistleblowers, watchdogs, and government accountability. Look for it every Saturday evening at www.mspbwatch.net/digest.

Federal Judge Strikes Down NDAA’s Indefinite Detention Provision: A federal judge in Brooklyn, New York struck down the indefinite detention provision of the National Defense Authorization Act, saying it constitutes an unconstitutional infringement on the First Amendment. The suit was brought by several journalists who feared their activities might fall under the reach of the law — substantially supporting al-Qaeda, the Taliban, or associated forces – without even knowing it, and facing indefinite detention for many years. The judge, Katherine Forrest, repeatedly offered government lawyers the opportunity to rebut the reporters’ fears, but they declined to do so.

Below the Fold:

–A Malaysian tribunal found George W. Bush, Dick Cheney, Donald Rumsfel, Alberto Gonzales, John Yoo, Jay Bybee, David Addington and William J. Haynes guilty of war crimes.

–The Washington Post editorial board calls on the Federal Aviation Administration to take whistleblowers’ complaints seriously.

–The ACLU is weighing in on behalf of Peter Van Buren, the State Department whistleblower who wrote a book and blog critical of his employer’s exploits in Iraq.

–A Homeland Security House subcommittee looks at corruption inside DHS.

–Employees at a nuclear waste site in Washington state are coming forward, saying too many shortcuts are being taken in the construction of a facility to dispose the waste.

–An FBI crime lab whistleblower’s 20 year campaign to expose and correct violations of defendants’ due process rights is beginning to bear fruit.

–House Oversight Chairman Darrell Issa is alleging the Federal Maritime Commission may be “an agency in crisis.”

–Union protectionism in 1994 may haunt whistleblowers and the Office of Special Counsel in 2012.

–Several whistleblowers and advocacy groups will host an annual conference in Washington, D.C., May 21-23.

Send tips to tips@mspbwatch.net.