Note: this post has been significantly changed since publication to add additional content and make it easier to read.
The Government Accountability Project and the Project on Government Oversight are united in their efforts to get S. 743 and H.R. 3289, the Whistleblower Protection Enhancement Act, passed through Congress. However, in the course of doing so, they are making false statements regarding the bill’s scope and the current state of the law. It would be one thing to dismiss this as ignorance or error, but this issue is one that’s been brought to their attention before, and which GAP addressed before in a manner that contradicts their current position.
The statements in question are as follows:
[GAP]: If Lieberman really cared about stopping “leaks,” his law would distinguish between legitimate whistleblowing and politically-motivated “leaking.” Even better, instead of focusing on who made what information public, Congress should focus on providing safe, effective channels for whistleblowers to bring complaints. [Emphasis added]
[POGO]: It is vital that whistleblowers have strong protections for legally exposing wrongdoing. One way to do that would be for Congress to finally pass the Whistleblower Protection Enhancement Act (H.R. 3289/S.743), which among other things, would provide intelligence community workers safe, legal channels for disclosures of wrongdoing, and give them some protections for doing so. This bill passed through the Senate on May 8, 2012, and the House companion bill has passed the Oversight and Government Reform Committee, and awaits consideration by the House. [Emphasis added]
The reason why this is false is twofold. First, the WPEA would not provide any safe channels for the disclosure of classified information (by safe I mean confidential from one’s employers). There is nothing in the WPEA that assures such confidentiality. What the WPEA does, through Section 119, is slightly modify the Intelligence Community Whistleblower Protection Act of 1998. That law provided a mechanism for intelligence community employees to make disclosures of classified information to Congress. However, they must make the disclosure to their agency’s Inspector General, who then notifies the agency head before the information is passed off to Congress. The only thing WPEA would do is create a board to handle any (inevitable) retaliation complaints by intelligence community whistleblowers. See this for more information.
Second, a safe, legal channel already exists to disclose classified information, one which GAP/POGO don’t tell you about: the Office of Special Counsel.
In 1978, Congress passed the Civil Service Reform Act, which created the OSC. OSC is charged by law with accepting disclosures of violations of law, gross mismanagement, gross waste of funds, abuse of authority, and specific and substantial danger to public health or safety.
However, if the disclosure is prohibited by law, it can only go to an Inspector General, the agency head or his representative, or the Special Counsel.
This implies that OSC can receive classified information. Indeed, GAP thought so, in 2006 (page 5).
Moreover, OSC is the only agency that must guarantee confidentiality to the whistleblower, absent extenuating circumstances. This means that any intelligence community employee can disclose classified information to OSC without his bosses knowing about it. And, if the information deals with foreign intelligence or counterintelligence, it must go to the National Security Advisor and the intelligence committees in Congress directly.
WPEA would not affect this scheme whatsoever.
So why are GAP and POGO making the statements above?
I don’t know, but it might have to do with trying to capitalize on the current leak hysteria to pass WPEA, or maybe it has to do with the fact that the OSC option is unknown and they’ve done little historically to tell the public about it while whistleblowers needlessly throw away their careers blowing the whistle to the press.
But one thing is certain: their statements don’t hold up to scrutiny, and as good government groups, they need be honest with the public.