Whistleblower law expands protection to US intelligence agents

(By Deutsche Welle) US President Obama has signed into law expanded whistleblower protections that cover intelligence agents for the first time. But the protections still do not apply to contractors, such as ex-NSA analyst Edward Snowden.

Five years after vowing to strengthen whistleblower rights, President Barack Obama has extended statutory protections to intelligence agency employees who report abuse, closing a major gap in a law at least ostensibly designed to shield federal workers from retaliation.

Part of the Intelligence Authorization Act of 2014, the provisions would protect intelligence agency employees from retaliation if they report waste, fraud or abuse to designated entities. Those entities include superiors at the agency in question, one of the inspector general watchdogs, and the House and Senate intelligence committees.

For the first time, intelligence agency employees can use whistleblowing as an affirmative defense if they suffer retaliation; for example, if their security clearance is taken away. In addition, they are protected from retaliation for cooperating with an investigation or providing testimony under oath. They can also appeal to an internal administrative board to have their grievances redressed.

“It’s a significant precedent,” Shanna Devine, the Government Accountability Project’s legislative director, told DW. “No time before in history have there been enforceable statutory protections for intelligence community government employees.”

Continue reading

Advertisements

Drake: ‘There was no protection against reprisal’

(By Deutsche Welle) Former NSA senior executive Thomas Drake blew the whistle on a failed surveillance program called Trailblazer. He tells DW that the US whistleblower laws failed to protect him from retaliation within the NSA.

DW: When you decided to blow the whistle on waste and abuse at the NSA, at that time what sort of procedures were you required to follow and to whom did you have to report?

Thomas Drake: They call them proper channels. Within an agency there are administrative procedures in which you can report to your chain of command; you can go to the inspector general, the office of the inspector general for the agency; or you can also go to the office of general counsel. Generally, in matters like this you go to the chain of command and/or the office of the inspector general. In my case, I went through every channel within the agency.

The huge elephant in the room is what happens if you happen to work in the Department of Defense / national security arena. That’s where it’s far more problematic.

At the time that your case was unfolding, the law was the Intelligence Community Whistleblower Protection Act. Under that law, what kind of protections were you afforded or were you supposed to be afforded?

There technically aren’t any protections. When I went to Congress and also the Department of Defense Office of the Inspector General, [the Intelligence Community Whistleblower Protection Act] was the act that I invoked on a regular basis – every time I had formal communication with any officer, agent, investigator, or staffer.

By the way, this act also covered at the time both contractors and employees of parts of the intelligence community – it’s important to note [that] it’s not everybody because the military has its own inspector general chain of command; it has its own military whistleblower protection act, just to be very clear here.

The problem was they retaliated. I was reprised against severely within the proper channels, meaning I was identified as a troublemaker and there’s a whole story behind that. But the fact remains, I was authorized to report through the proper channels but there was no protection per se against reprisal or the threat of reprisal, even though it’s prohibited.

Continue reading

US whistleblower laws offer no protection

(By Deutsche Welle) The White House says that Edward Snowden should have reported his concerns within the NSA, instead of revealing surveillance programs to the press. But who exactly do US whistleblower laws protect?

Some eight months before Edward Snowden leaked classified NSA programs to the press, US President Barack Obama issued an order extending whistleblower protections to employees of America’s intelligence agencies. The White House often cites this fact when addressing the three felony charges against Snowden, in total carrying a maximum sentence of 30 years in prison. Two of those charges fall under the 1917 US Espionage Act.

In his January speech on NSA reform, President Obama said that he did not want to “dwell on Mr. Snowden’s actions or his motivations.” But five months earlier, the US commander-in-chief had already made clear that he did not view the 30-year-old as a whistleblower or patriot, saying that Snowden had failed to use official, non-public “proper channels” to express his concerns about NSA surveillance.

But Snowden has said that Obama’s extension of whistleblower protections to the intelligence community, under Presidential Policy Directive 19 (PPD-19), does not cover government contractors. Before his disclosures, Snowden was an employee of the company Booz Allen Hamilton, which contracted with the National Security Agency.

“If I had revealed what I knew about these unconstitutional but classified programs to Congress, I could have been charged with a felony,” Snowden said in a live, online question and answer session last Thursday.

Continue reading

Obama turns WWI-era law against leakers

(By Deutsche Welle) During WWI, President Wilson signed off on the Espionage Act, in a bid to keep a lid on German spies in the US. But 96 years later, President Obama is using the act to aggressively prosecute leaks to the press.

The Obama administration has cracked down hard on national security leaks to the press over the past four years, dusting off the almost 100-year-old Espionage Act to pursue prosecutions against leakers in seven cases, twice the number of any other presidency combined.

At the end of last month, Bradley Manning became the first successful Espionage Act conviction under the Obama administration. Manning was WikiLeaks’ source for some 700,000 diplomatic cables and battlefield reports, the largest single leak of secret information in US history. Edward Snowden, who leaked several secret National Security Agency surveillance programs to the press, is the latest leaker to be charged under the act.

Signed into law in 1917, the Espionage Act criminalizes the transmission of defense information, which could cause injury to the US or give advantage to a foreign nation, to unauthorized people. According to Stephen I. Vladeck, an expert on national security law, the language of the act makes no distinction between old-fashioned espionage by foreign spies and whistle-blowing government abuse to the press.

“For better or worse, the Espionage Act is the American statute that best fits the crime of wrongfully disclosing national security information to someone who’s not entitled to receive it,” Vladeck told DW via email.

“Whether we’d call it leaking, whistle-blowing, or classic espionage, the statute treats all three as the same offense – and so the government understandably gravitates toward it in any case where it can,” he said.

Continue reading

AP accuses Justice Department of ‘unprecedented intrusion’

(By Deutsche Welle) The US Department of Justice secretly seized two months of telephone records from the Associated Press (AP) in 2012. This comes amid a crackdown by the Obama administration on whistleblowers and leaks.

AP President and Chief Executive Officer Gary Pruitt has accused the Justice Department of infringing on the freedom of the press, after the department revealed that it had seized records from more than 20 separate AP phone lines.

“There can be no possible justification for such an overbroad collection of telephone communications of the Associated Press and its reporters,” Pruitt wrote in a letter addressed to Attorney General Eric Holder on Monday (13.05.2013).

“These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to the AP’s newsgathering operations and disclose information about AP’s activities and operations that the government has no conceivable right to know,” Pruitt went on to say.

The records seized by the Justice Department cover the period of April and May 2012, listing outgoing calls from the work and personal phone numbers of AP reporters. AP offices in New York, Washington, D.C., and Hartford, Connecticut were affected by the records seizures.

It’s unclear whether the government also obtained records of incoming calls and how many journalists were affected, according to the AP. More than 100 journalists work in the offices where records were targeted.

Pruitt said the Justice Department informed the AP of the seizures in a letter received on Friday. But the notification came after the subpoena had already been issued and the phone records seized. That means the AP had no chance to challenge the Justice Department’s move.

“To be secretly seizing two months of phone records for reporters and editors at the AP is just a serious interference with First Amendment, freedom of the press, and constitutional rights that are enshrined in our constitution,” Jesselyn Radack, the national security and human rights director at the Government Accountability Project, told DW.

Continue reading