White House Issues Policy Directive Granting National Security Employees Whistleblower Protections

Here is a copy of the directive, obtained from federalnewsradio.com. Here is some background about what it entails:

GAP Praises President’s Action to Protect National Security Whistleblowers (Government Accountability Project)
Intelligence community employees to gain whistleblower protections (FederalNewsRadio.com)
President Obama Issues Landmark Directive for National Security and Intelligence Community Whistleblowers (Project On Government Oversight)

“Protected disclosure” is defined in this document as follows (emphasis added):

(5) The term “Protected Disclosure” means:

(a) a disclosure of information by the employee to a supervisor in the employee’s direct chain of command up to and including the head of the employing agency, to the Inspector General of the employing agency or Intelligence Community Element, to the Director of National Intelligence, to the Inspector General of the Intelligence Community, or to an employee designated by any of the above officials for the purpose of receiving such disclosures, that the employee reasonably believes evidences (i) a violation of any law, rule, or regulation; or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;

(b) any communication described by and that complies with subsection (a)(1), (d), or (h) of section 8H of the Inspector General Act of 1978 (5 U.S.C. App.); subsection (d)(5)(A) of section 17 of the Central Intelligence Agency Act of 1949 (50 U.S.C. 403q); or subsection (k)(5)(A), (D), or (G), of section l03H of the National Security Act of 1947 (50 U.S.C. 403-3h);

(c) the exercise of any appeal, complaint, or grievance with regard to the violation of Section A or B of this directive;

(d) lawfully participating in an investigation or proceeding regarding a violation of Section A or B of this directive; or

(e) cooperating with or disclosing information to an Inspector General, in accordance with applicable provisions of law in connection with an audit, inspection, or investigation conducted by the Inspector General,

if the actions described under subparagraphs (c) through (e) do not result in the employee disclosing classified information or other information contrary to law.

This raises an interesting question: why doesn’t this definition include the Office of Special Counsel as an authorized recipient of (presumably classified) information?

After all, OSC is authorized by law to receive classified disclosures. So where does it fit in with this new scheme? In fact, OSC appears only once, in a discussion regarding assessing the efficacy of provisions deterring retaliation, on page 5. Why not educate employees about the OSC option? The document calls on national security officials to provide guidance for individual officers or employees regarding what disclosures are protected (also on page 5).

For more on this issue, see the following:

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6 comments on “White House Issues Policy Directive Granting National Security Employees Whistleblower Protections”

Douglas Kinan October 11, 2012 at 7:19 am

You don’t believe this stuff, do you?

Whistleblowers will continue to be crucified and their lives destroyed no matter what.

If you don’t believe me, please stand by for the next whistleblower crucification.

________________________________
- mspbwatch October 11, 2012 at 8:34 am
  
  I wouldn’t be doing this if I thought that.
mspbwatch October 11, 2012 at 9:57 am

The roots of this directive come from the Civil Service Reform Act of 1978.

From 5 U.S.C. 2301(c):

(c) In administering the provisions of this chapter—

(1) with respect to any agency (as defined in section 2302 (a)(2)(C) of this title), the President shall, pursuant to the authority otherwise available under this title, take any action, including the issuance of rules, regulations, or directives; and

(2) with respect to any entity in the executive branch which is not such an agency or part of such an agency, the head of such entity shall, pursuant to authority otherwise available, take any action, including the issuance of rules, regulations, or directives;

which is consistent with the provisions of this title and which the President or the head, as the case may be, determines is necessary to ensure that personnel management is based on and embodies the merit system principles.

The agencies listed in 5 U.S.C. 2302(a)(2)(C) are:

(C) “agency” means an Executive agency and the Government Printing Office, but does not include—

(i) a Government corporation, except in the case of an alleged prohibited personnel practice described under subsection (b)(8);

(ii) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, and, as determined by the President, any Executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities; or

(iii) the Government Accountability Office.

Here’s the relevant legislative history.

From H. Conf. Rep. No. 95-1717, Oct. 5, 1978, page 129 (http://mspbwatch.files.wordpress.com/2011/11/h-conf-rep-no-95-1717.pdf)

The conference substitute in section 2301(c) provides that in administering the provisions of this chapter the President shall have the same authority as contained in the Senate bill to take action to insure that personnel management is based on and embodies the merit system principles. With respect to any entity in the executive branch which is excluded under section 2302, the head of that entity must, pursuant to authority otherwise available, and subject to the inherent executive powers of the President, take action which is consistent with the provisions of this title and which the agency head determines is necessary to insure that personnel management in that entity is based on and embodies the merit system principles.

See also Senate Conf. Rep. No. 95-1272, Oct. 4, 1978, page 129 (http://mspbwatch.files.wordpress.com/2011/11/s-rep-no-95-1272.pdf); House Rep. No. 95-1403, July 31, 1978, page 16 (http://mspbwatch.files.wordpress.com/2011/11/h-rep-no-95-1403.pdf); Senate Rep. No. 95-969, July 10, 1978, page 19 (http://mspbwatch.files.wordpress.com/2011/11/s-rep-no-95-969.pdf).
mspbwatch October 11, 2012 at 11:31 am

I left a message with OSC’s communications director, Ann O’Hanlon, and asked if OSC was involved in the directive. 202-254-3600.

I also emailed the public affairs officer for the Director of National Intelligence, Shawn Turner (shawn.turner@dni.gov) and asked if OSC was involved and if not, why.

Also, the following instruction is available on OSC’s website, https://www.osc.gov/oscefile/:

You are currently on an OSC Unclassified Internet Site. As such, the information you are viewing is designed to convey only information pertaining to the filing of disclosures that do not contain classified information. You may not disclose classified information or file or submit a classified disclosure form via the Disclosure of Information form (OSC Form 12) on this web site. If your disclosure concerns both classified and unclassified information, you can submit unclassified information using the disclosure form and make arrangements to submit the classified information to OSC in accordance with governing laws and regulations.

If you are seeking to make a disclosure involving classified information, you can report this information to OSC using appropriate secure channels. If you have questions about how to disclose classified information to OSC or would like to make arrangements to submit a disclosure containing Secret or Top Secret classified information, you may contact OSC’s Disclosure Unit at 1-800-572-2249 (unsecured line).
mspbwatch October 11, 2012 at 3:33 pm

Apparently this directive doesn’t “grant” protections so much as promises them.

From a press release by the National Whistleblowers Center:

http://www.webwire.com/ViewPressRel.asp?aId=162475

Directive Lacks Due Process and Real Legal Protections

Washington, D.C. October 11, 2012 – Yesterday, the Obama Administration issued a Presidential Policy Directive designed to “protect” national security whistleblowers. The National Whistleblowers Center recognizes the Directive as a small step forward, but strongly criticizes it as failing to provide any real or substantive legal rights for national security employees.

The Directive appears on its face to help national security whistleblowers by requiring these agencies to establish a process for whistleblowers to seek review of prohibited personnel actions. However, the last paragraph (Section G) insulates the government from any liability to whistleblowers and bars whistleblowers from relying on the Directive to enforce any legal rights. This closing paragraph explicitly limits the legal enforceability of any the rights or procedures established under the Directive:

“This directive is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person”

Under the Directive, the final decision of an agency head to fire a whistleblower is not subject to review, meaning that whistleblowers cannot challenge the decision of the agency in court or otherwise.

Stephen M. Kohn, the Executive Director of the National Whistleblower Center, issued the following statement:

“The Directive fails to provide whistleblowers with any new enforceable legal rights. In fact, the Directive specifically states that it does not ’create any right or benefit’ for whistleblowers. This section renders the Directive toothless. We are concerned that national security employees may think that this Directive gives them some much-needed protections when it does not”

“The NWC is concerned that this toothless policy will be used to justify Congress’s failure to enact legal protections for national security whistleblowers”
mspbwatch October 11, 2012 at 7:00 pm

See this thread for real-time comments, including POGO audaciously calling the directive a “victory” for whistleblowers: http://my.firedoglake.com/mspbwatch/2012/10/11/white-house-issues-policy-directive-granting-national-security-employees-whistleblower-protections/

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