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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.

Dissenters’ Digest for April 22-28

4:00 pm in Uncategorized by MSPB Watch

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.

Congress Troubled by Suspicious Death of Russian Whistleblower: Congress seeks to use legislative authority to punish Russian officials allegedly involved in the suspicious 2009 death of Russian whistle-blower and lawyer Sergei Magnitsky, according to the The Hill. NPR reports that the bill in question could complicate US-Russian relations, jeopardizing Hillary Clinton’s 2009 “reset” with the Russian government. However, a person interviewed by NPR said a “reset … with Russian society” is required instead. The story of Magnitsky’s death has been chronicled in an award-winning documentary. Elsewhere, Firedoglake takes on the Congress for selective concern about civil and human rights.

Below the Fold:

–A whistleblower conference is scheduled for May 20-22 in Washington, D.C.

–A recently-unearthed FAA powerpoint presentation says the FAA “must evolve our safety oversight system and embrace the view that industry — not the regulator — is responsible for ensuring safety,” despite decades-old law placing safety regulation as the FAA’s highest priority.

–The first criminal charges are filed in the Deepwater Horizon gulf oil spill.

–Bradley Manning’s trial continues to be shrouded in secrecy.

–The Non-Federal Employee Whistleblower Protection Act reports out of a Senate committee. The bill would expand whistleblower protections for federal contractors.

–The House of Representatives passes the DATA Act, which would create a five-member commission to oversee federal spending.

–Vermont becomes the third state to call for a constitutional amendment overturning Citizens United v. FEC.

–Green Party presidential candidate Jill Stein vows to pardon Bradley Manning as president.

–A Countrywide whistleblower laments the lack of accountability and ethics in the financial sector.

–A Missouri bill to restrict common law whistleblowing protections is passed in the General Assembly. The bill is sponsored by Rep. Kevin Elmer, who has a record of sponsoring discriminatory and birther legislation.

–The Securities and Exchange Commission was accused this week of blowing a whistleblower’s cover. The SEC responds.

–The summary judgment provision in the Whistleblower Protection Enhancement Act of 2012 comes under scrutiny.

–A federal employment attorney advises employees to violate the law when ordered to by superiors (notwithstanding their conscience or oath to the Constitution).

–The Make It Safe Campaign will hold a general membership meeting this Tuesday, May 1.

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