Briefing Memo On IC Whistleblower Campaign

Below is a briefing memo on the intelligence contractor whistleblower campaign. You can view it as a PDF here.

Ramping Up Pressure to Restore Whistleblower Protections for All Government Employees

Government contractor employees who blow the whistle on waste, fraud, abuse of authority, gross mismanagement or a violation of law should be honored and protected, not disgraced and left vulnerable. However, intelligence community government contractors were stripped of whistleblower protections in 2012 and now are defenseless in the face of retaliation. The protection they need: an independent due process hearing or day in court.

That is why the Make It Safe Coalition has launched a campaign to demand that Congress quickly fills this accountability loophole by providing intelligence contractors with safe channels to report government wrongdoing.

Past protections

In 2008, Congress enacted rights for some intelligence contractors, such as U.S. Department of Defense (DoD) contractors, including those who work for the Defense Intelligence Agency and the National Security Agency (NSA). These protections worked well from 2008-2012, and the U.S. Senate, with bipartisan support, approved expansion of the safeguards to all government contractors in the FY 2013 National Defense Authorization Act (NDAA). However, the closing conference committee stripped all intelligence whistleblower protections from the bill before passing it.

The protections for intelligence contractors were removed despite a track record showing that the law was working as intended and did not produce any adverse impacts on national security during its five-year lifespan. Based on this record, there is no substantive policy argument for continuing to deny intelligence contractors whistleblower protections. Contrary to concerns that court access would cause national security leaks, none even have been alleged. Predictions were made that intelligence whistleblowers would flood the courts, however just 25 cases were filed from 2008 through 2012 under the DoD contractor provision, including from the intelligence community.

Six months after intelligence contractor rights were rolled back, NSA contractor Edward Snowden disclosed the U.S. government’s sweeping domestic surveillance programs. When Snowden talked about his experience blowing the whistle, he said, “The charges they brought against me, for example, explicitly denied my ability to make a public-interest defense. There were no whistleblower protections that would’ve protected me – and that’s known to everybody in the intelligence community. There are no proper channels for making this information available when the system fails comprehensively.” Snowden also went on to cite the nightmares of previous whistleblowers who were harassed when they worked through institutional channels without protections.

The system should empower employees like Snowden with legal safeguards if they blow the whistle within the system of government checks and balances. No one should have to circumvent the law to fight government illegality or wrongdoing. Without protections, they either can remain silent or go to the media anonymously.

Legislative fight for whistleblower protections

That is why the Make It Safe Coalition – made up of 75 organizations nationwide – is working with congressional champions to help pass SA 3711, an amendment to the FY14 NDAA that would restore the strong, uniform whistleblower protections for intelligence contractors who disclose waste, fraud, gross mismanagement or a violation of the law. The amendment was introduced by U.S. Sen. Claire McCaskill (D-Mo.), who has been the leading voice for intelligence contractor whistleblower protections over the years.

If passed, this legislation would give intelligence whistleblowers incentives to work within the system, thus protecting taxpayer money from waste, fraud, abuse and misuse. The proposed system would allow employees to file a complaint and grant them protection from retaliation or termination. In an absence of protection, we can only expect leaks to continue.

Whistleblowers often are the only witnesses to abuses of power that betray the public trust. That is why the Whistleblower Protection Enhancement Act of 2012 received unanimous congressional approval to strengthen anti-retaliation rights for federal employees, and contractor whistleblower protections (outside of the intelligence community) passed shortly thereafter. However without adequate protections for intelligence contractors, it is likely that they will remain silent in the face of misconduct.

NSA whistleblower Edward Loomis speaks out

Edward Loomis, a career NSA employee and then contractor from 1964 to 2007, is a leading voice in the Make It Safe Coalition campaign to restore intelligence contractor whistleblower protections. He was retaliated against by the NSA after reporting through internal channels an ineffective surveillance program that wasted taxpayer dollars and violated constitutional rights to privacy.

“For having filed a fraud and waste hotline complaint against NSA with the Department of Defense Inspector General in 2002, along with three others, our names were surrendered to the FBI under the guise we were considered suspects for the leak revealed in a New York Times warrantless surveillance article. The release of our names immediately focused the leak investigation on us, and we each were subjected to humiliating home searches and the seizure and removal of many personal records and recoded media. Also our security clearances were immediately ‘suspended,’ thus terminating all access to continuing work as private contractor consultants in the intelligence community,” explained Loomis.

“Permitting such actions to persist, as was done with the exclusion of contractor whistleblower protections in the National Defense Authorization Act of 2013, will only encourage other whistleblowers to employ tactics used by Edward Snowden – to secretively exfiltrate evidence and publicly expose wrongdoing since no legitimate and trusted option is otherwise available.”

Next steps and more information

The Make It Safe Coalition will continue to ramp up the pressure on lawmakers to vote in favor of SA 3711 in the next few months through direct meetings with lawmakers and staffers, and petition drives.

In October, 49 organizations sent a letter to Congress calling on legislators to restore whistleblower rights for intelligence contractors. Read the letter.

Visit the Make It Safe Coalition website for more background information on the intelligence contractor whistleblower protection campaign.

Find more information about Loomis.

View a list of Make It Safe Coalition members.

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