The New Whistleblower's Handbook

by Stephen Kohn

  If an employee has both a whistleblower case and a discrimination case, the two causes of action can be consolidated into one lawsuit filed in U.S. District Court. This is an extremely important procedural right. After an employee exhausts his or her administrative remedies under Title VII and the Whistleblower Protection Act, the two causes of action can be joined. This procedure is known as a “mixed case.” The rules governing mixed cases are complex, and were explained in detail in the case of Bonds v. Leavitt decided by the U.S. Court of Appeals for the Fourth Circuit. The “mixed case” process is the only way a federal employee can have his or her whistleblower case heard in federal court. All other whistleblower cases must be pursued through the Office of Special Counsel/Merit Systems Protection Board process. For employees who suffer retaliation or discrimination based on both whistleblowing and their protected status, the mixed case procedure provides these workers with the strongest whistleblower protections (i.e., access to federal court).

  ENVIRONMENTAL WHISTLEBLOWERS

  The environmental whistleblower laws have been successfully used by employees at the Environmental Protection Agency and other government departments as an alternative to the Whistleblower Protection Act. The scope of a protected disclosure can be broader under the environmental laws than under the WPA. Additionally, the procedures used to adjudicate environmental whistleblower cases are more employee-friendly then those used by the Merit Systems Protection Board. The decision to use environmental whistleblower laws to defend jobs and careers is a viable option for employees who may raise concerns over hot-button environmental issues, such as global warming, environmental risks associated with energy production, or lead in drinking water.

  Federal employees successfully used the environmental laws as far back as the early 1990s. But it was not until 2006 that the issue of federal-employee coverage was finally decided. In Erickson v. EPA, the U.S. Office of Legal Counsel, that provides binding guidance to administrative agencies on legal matters, informed the U.S. Department of Labor that federal employees could file cases under the Clean Air Act, Safe Drinking Water Act, Superfund, and the Solid Waste Disposal Act. All of these laws are administered by the U.S. Department of Labor and are discussed in Rule 4. These laws permit federal employees to have their cases investigated by OSHA (as opposed to the Office of Special Counsel) and have their cased tried by a statutory Administrative Law Judge. These ALJ’s have job protection similar to federal judges, and have a reputation for competence and independence. Final decisions of the Labor Department are subject to judicial review in the Courts of Appeal. Remedies include reinstatement, back pay, compensatory damages, punitive damages under the Safe Drinking Water Act, and attorney fees and costs. The biggest drawback to the environmental laws is their short statute of limitations —a mere 30 days.

  National Security and Intelligence Agency Whistleblowers

  In 1978, when Congress was on the verge of passing the comprehensive whistleblower law covering all federal employees, powerful intelligence agencies wanted to exclude their employees from any protection. They wanted to silence their whistleblowers. Compromises were made in the final version of the Civil Service Reform Act, and the bill that was presented to President Jimmy Carter to sign on October 13, 1978, contained a glaring exemption.

  The law covered all federal agencies except the Federal Bureau of Investigation (FBI), the Central Intelligence Agency (CIA), the Defense Intelligence Agency (DIA), the National Security Agency (NSA), the National Geospatial Intelligence Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office. The president was also given the authority to exempt from the WPA “any agency or department” whose “principal function” concerns “the conduct of foreign intelligence or counterintelligence activities.”

  This exemption had, and continues to have, a terrible impact both on national security whistleblowers and the public’s right to know about abuses within these excluded agencies.

  After 1978 the nonintelligence federal agencies slowly started to adjust their management practices and workplace culture to accommodate whistleblower rights. The intelligence arms of the government did not. Because would-be whistleblowers at intelligence agencies had no rights, the agencies covered under the exemption had no reason to become whistleblower-friendly.

  In addition to not having legal protections, national security whistleblowers also risk losing their security clearances. Losing clearance renders future employment in law enforcement impossible.

  The first well-known national security whistleblower was Daniel Ellsberg, who worked for a government contractor (the Rand Corporation) and had access to top-secret government documents regarding the Vietnam War. After month of reflection over whether to release these highly explosive documents, he eventually leaked the “secret history” of the Vietnam War to the press. He provided the New York Times and Washington Post more than seven thousand pages of classified documents known as the Pentagon Papers. Although these papers exposed systemic abuses of authority that surrounded the United States’ involvement in the Vietnam War, Ellsberg was indicted for leaking confidential information and faced criminal charges that could have resulted in a 117-year prison sentence. But his case was dismissed because of prosecutorial misconduct. In other words, no judge or jury ever weighed in on the legality of Ellsberg’s actions, or the consequences he would face if found guilty. In the middle of his trial, some of the worst abuses of the Watergate era surfaced, resulting in a dismissal of all criminal charges. Ellsberg was a free man.

  Oddly enough, Ellsberg would become one of the first beneficiaries of the Watergate scandal. During Ellsberg’s criminal case, the Court learned that officials working for President Richard Nixon had engaged in gross misconduct in a covert campaign to discredit Ellsberg. The White House had established a clandestine “plumber’s unit” designed to “plug leaks,” and their first illegal operation was to break into Ellsberg’s psychiatrist’s office to obtain information that could discredit him in the eyes of the public. They wanted to find dirt, and they figured the best place to start was with his psychiatrist, where they might learn his most private and embarrassing secrets. Once the break-in was exposed, the government’s case collapsed. It was this misconduct that would result in the dismissal of the criminal charges against him.

  The Ellsberg case did not set legal precedent protecting future national security whistleblowers. In the Pentagon Papers case, which arose directly out of Ellsberg’s disclosures, the Supreme Court weighed in on whether the Nixon administration could obtain an order halting two newspapers from publishing the classified documents Ellsberg had released. The Court sided with the newspapers, refused to halt the presses, and permitted the New York Times and Washington Post to print the classified material. In that case a number of Supreme Court justices wrote concurring opinions addressing the potential liability of the leaker. These justices sent a clear warning that the United States could use criminal laws to prosecute anyone involved in releasing classified information. They warned that although the newspapers could publish the material, the person who leaked the information could be prosecuted.

  Justice Potter Stewart (who joined with the Court majority in permitting the New York Times to publish the Pentagon Papers) drew a sharp distinction between the right of the news media to publish information and the right of a whistleblower to disclose information. The government could not obtain a court order stopping the New York Times from publishing the Pentagon Papers, but the executive could prosecute the “leaker” for violating government secrecy laws. Justice Stewart wrote: “Congress has the power to enact specific and appropriate criminal laws to protect government property and preserve government secrets. Congress has passed such laws, and several of them are of very colorable relevance to the apparent circumstances of these cases.”

  Ellsberg escaped conviction only because of prosecutorial misconduct. Other whistleblowers have not been so lucky. More recently there have been numerous indictm
ents and convictions of intelligence agency employees who illegally released classified top secret information, including Edward Snowden, who was indicted under the Espionage Act, and Thomas Drake and John Kiriakou, who were convicted of illegally releasing classified information when they tried to expose official misconduct in the NSA and CIA.

  “Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. On public questions, there should be ‘uninhibited, robust, and wide-open’ debate.”

  Justice William Douglas, U.S. v. New York Times

  (Pentagon Papers case)

  The Ellsberg case highlighted the lack of legal protections for national security whistleblowers. When Ellsberg wanted to expose the scandal he uncovered, there was literally no government agency equipped to address his concerns. The government itself had committed the misconduct, and there was no one in the government able or willing to confront the scandal he had uncovered. Many other whistleblowers who work in intelligence agencies feel the same way and, like Ellsberg, turn to the news media as their best outlet for revealing the “truth.” The stakes in these cases are immense. When the government lies to justify a military action, innocent lives and the credibility of U.S. foreign policy are risked. When the government hides behind its power to classify information as “secret” to violate the law outside public view, it is nearly impossible for citizens to know what their government is doing, and to properly exercise their right to vote as an informed citizenry. Yet there is a strong legal consensus supporting the government’s ability to classify information and prevent it from unauthorized release.

  When Edward Snowden released classified information on the National Security Agency’s illegal domestic spying program, a national debate erupted as to whether his actions were justified. Some argued that he was a whistle-blower, others labeled him a “leaker,” while yet others considered him a traitor. But one part of this debate was clear. The legal protections afforded employees like Snowden, who wanted to expose illegal government actions, were grossly deficient. It was brutally clear that honest employees working in agencies like the CIA or NSA faced a terrible dilemma if they witnessed misconduct. Without adequate legal protections, blowing the whistle could have catastrophic repercussions. Whistleblowers could lose their jobs, security clearances, and possibly even their freedom.

  But whistleblowers were not the only losers. By not establishing a safe and protected channel for employees to blow the whistle, it was only a matter of time before an employee would engage in “self-help” and make disclosures with the intent of exposing wrongdoing but that also harmed national security. The legal protections in place at the time Snowden released his documents to the press were a lose-lose-lose situation. Snowden lost because his disclosures were illegal, and he faces years in prison or a prolonged exile from his homeland. The public loses because most employees will remain silent, even if they know of abuses the public should learn about. The agencies lose, as it was only a question of time before an employee like Snowden would become upset with abuses he or she witnessed and engage in self-help whistleblowing—taking his concerns outside any proper channel and giving them directly to the press.

  The Protection of Intelligence Community Whistleblowers Act of 2014

  In the wake of the Snowden case, Congress took some basic steps to fix the problem. Tucked into the Intelligence Authorization Act for Fiscal Year 2014 was the first federal law providing a semblance of protection for national security whistleblowers. The law, entitled Protection of Intelligence Community Whistleblowers, codified at 50 U.S.C. Section 3234, is very simple (and very weak).

  First, the law covers the intelligence community, including employees who work with such highly secretive agencies as the CIA and NSA.

  Second, it contains a very narrow definition of protected activity. Employees are given the right to blow the whistle (make a “lawful disclosure”) to the following organizations or people: (1) the Director of National Intelligence; (2) an employee designated by the Director of National Intelligence to receive whistleblower complaints; (3) the Inspector General of the Intelligence Community; (4) the head of the employing agency (e.g., the Director of the CIA); (5) an employee designated by the head of an intelligence agency to receive whistleblower complaints; (6) the Inspector General of the agency that employs the whistleblower; (7) a congressional intelligence committee; and (8) a member of a congressional intelligence committee.

  Third, to be protected under this law, a whistleblower must make a disclosure to one or more of these eight entities. Generally speaking, it is best to go to the top—and make sure the head of your agency knows you are a whistleblower. As a practical matter, the more top agency officials or members of Congress learn of a whistleblower’s allegations, the harder it is for an agency to cover up misconduct.

  The law defines a protected disclosure as any information “the employee reasonably believes evidences (1) a violation of any Federal law, rule, or regulation; or (2) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”

  Fourth, the law prohibits an agency from retaliating against the employee and prohibits a broad number of adverse actions, including an appointment, promotion, or any disciplinary action; a detail, transfer, or reassignment; a demotion, suspension, or termination; a negative performance evaluation; a decision concerning pay, benefits, or awards; or any other significant change in duties, responsibilities, or working conditions.

  This sounds pretty good . . . but:

  Unlike every other whistleblower law enacted over the past three decades, the intelligence agency law does not permit the employee to seek judicial review of an adverse determination. National security whistleblowers cannot get access to court in order to ensure that the minimum rights afforded them under the Protection of Intelligence Community Whistleblowers Act are enforced. The president of the United States is given the authority to approve the procedures that will be made available to whistleblowers. The law simply states: “The President shall provide for the enforcement of this section.” The failure to include in the law the specific procedures national security whistle-blowers can utilize to protect their rights, in combination with the lack of judicial review, renders the law seriously defective, to say the least.

  Another defect in the law is equally glaring. It does not stipulate the remedies available to the whistleblower. There is no statutory right to reinstatement, back pay, compensatory damages, or attorney fees. The relief available under this law is up to the president or the intelligence agencies delegated with authority to rule on these cases. The lack of independent or judicial review permits the fox to guard the chickens. The law sets a very low bar for whistle-blower protection. The Intelligence Community Whistleblower Protection Act is among the weakest whistleblower laws passed by Congress in the past fifty years.

  In addition to the Intelligence Community Whistleblower Protection Act, there are a few other options available to national security whistleblowers. Courts have long recognized that the freedom of speech protected under the U.S. Constitution was intended to protect citizens who exposed government misconduct and crimes committed by those holding political power. However, these same courts recognized the right of the executive power to keep national security–related information secret. In the Pentagon Papers case, Supreme Court Justice Thurgood Marshall echoed the warning: “In these cases, there is no problem concerning the President’s power to classify information as ‘secret.’ . . . Nor is there any issue here regarding the President’s power as Chief Executive and Commander-in-Chief to protect national security by disciplining employees who disclose information and by taking precautions to prevent leaks.”

  In other words, under Supreme Court precedent, the First Amendment rights of national security whistleblowers will always be balanced against the government’s need to maintain secrecy in its military, co
unterterrorism, and counterintelligence programs.

  PREPUBLICATION REVIEW

  After the Pentagon Papers rulings, the next major intelligence agency whistle-blower case to come before the U.S. Supreme Court was Snepp v. United States. Frank W. Snepp III was a former CIA employee who published a book exposing problems within that agency. Even though Snepp’s book did not contain classified information, the Court upheld the right of intelligence agencies to review, prior to publication, its employees’ (and former employees’) publications. In Snepp the Court affirmed the constitutionality of a prepublication clearance process utilized by various national security institutions, including the FBI and CIA. Although the Court ruled against Snepp, it did affirm that the U.S. Constitution and the Bill of Rights applied to federal employees working at the CIA and other intelligence agencies, although those rights could be limited. The Snepp decision established procedures employees who have access to classified information can use to make their whistleblower concerns public.

  Under these clearance rules, intelligence agents may publish nonclassified information about their agencies (including information concerning official misconduct), but first they must provide a copy of their publications to their employer and permit their employer reasonable time to ensure that classified information is not revealed. If an employee disagrees with the classification decision, he or she can obtain judicial review. Once in court, the whistleblower can ask a federal judge to review the censored material and make a decision as to what information can be publicly released. The judge has the authority to review the information in camera (i.e., secretly) and can then independently rule whether, in light of the First Amendment, the government can censor the whistleblower’s disclosure. The burden of proof is on the government, not the whistleblower. Both the executive agencies and the courts are required to expedite the adjudication of these cases. This procedure can be used by both current and former employees.