Posted by on October 15, 2012 in Blog

Last month Congress passed the Whistleblower Protection Enhancement Act (S. 743), aimed at protecting government employees who exposed waste and fraud from facing retaliation. The version of the bill that passed, however, was significantly watered down by the House Permanent Select Committee on Intelligence. The committee removed the protections to whistleblowers who work on matters of national security or have access to classified information. The Obama administration took steps toward correcting this gaping hole in the WPEA yesterday with a policy directive extending protections to those who expose waste, fraud, or illegality in agencies that work on national security matters.

The move by the Obama administration to extend whistleblower protections is a surprising one given the administration's record so far on the subject. The Obama administration has cracked down hard on whistleblowers in the national security realm, in a fashion that many have characterized as unprecedented. The administration has taken retributive action against many high profile whistleblowers such as Bradley Manning, John Kiriakou, and Thomas Drake. All have faced severe retaliation from the administration for exposing waste, mistreatment of detainees, and illegality in national security programs.

Waste, fraud, and civil liberties abuses have been a rampant problem in agencies such as the FBI and the Department of Homeland Security in recent years. Congress’s failure to protect whistleblowers in agencies related to national security severely undermined the government’s ability to identify wrongdoing in this country’s troubled counterterrorism efforts. The Obama administration’s policy directive makes the following changes to the WPEA:

  • An extension of free speech rights under the Whistleblower Protection Act (WPA), banning retaliation against intelligence community employees for disclosures within institutional channels, including their supervisors.
  • An extension of WPA free speech rights and protection against retaliation to all federal workers for decisions on access to security clearances.
  • An extension of anti-retaliation rights to intelligence committee employees for exercise of appeals and grievances.
  • A requirement that each agency issue consistent due process rights certified by the Director of National Intelligence, in intra-agency appeals of security clearance decisions.
  • A provision for "make whole" relief for those whose rights are violated, including reinstatement, reassignment and compensatory damages.
  • A requirement of agency programs for outreach, education, and counseling on the new rights.

The Obama administration’s policy directive is an important victory for the principle of whistleblower protection, but a policy directive is not permanent and does not replace the need for Congress to institutionalize whistleblower protections and due process rights for those with access to classified information. Government employees working on national security issues are frequently asked to walk fine lines with Americans’ civil liberties, making  it all the more important that employees can shed light on mistakes and deliberate abuse.

Whistleblowers have always been a crucial means of drawing attention to government malfeasance. If it were not for whistleblowers, the public would still be unaware of the offensive and inaccurate materials used to train FBI agents about American Muslims, and the materials would have never been purged. Whistleblowers like those who brought the FBI materials to light should not only be protected from retaliation, but celebrated as patriots.

Hopefully this policy directive will be followed by a more complete reversal of the administration's policy toward whistle-blowers. Unfortunately, President Obama will not have fully changed his tune on whistleblower protections until the "make whole" provisions of his new directive are applied to those who have already suffered under his administration.

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