Talking points for Intelligence Community contractor whistleblower protection
The Make It Safe Coalition (MISC) is a nonpartisan, trans-ideological coalition of NGO’s committed to strengthening government accountability through whistleblower protection. MISC believes that Congress should swiftly restore best practice whistleblower protections for Intelligence Community (IC) contractors by supporting Senate Amendment (SA) 3711, introduced by Senator Claire McCaskill (D-MO) for inclusion in the National Defense Authorization Act (NDAA) for Fiscal Year 2015.
NEED: Currently IC contractors have no statutory protection against retaliation when they disclose government waste, fraud, abuse, gross mismanagement or a violation of law. Without action to restore rights enforceable through independent due process, they have only two alternatives to almost certain retaliation against which they are legally helpless: 1) remain silent observers of wrongdoing; or 2) make anonymous leaks to the media. Neither is the proper way to address abuses of power that betray the public trust. It is imperative that Congress quickly fill this accountability loophole.
HISTORY: In 2007 whistleblower rights enforceable through district court jury trials were enacted for all Department of Defense (DoD) contractors, including the Defense Intelligence Agency (DIA) and the National Security Agency (NSA). In 2009, stronger best practice rights were enacted for all government contract employees paid with stimulus funds, including other IC agencies like the Central Intelligence Agency (CIA). The whistleblower shield was so successful in deterring taxpayer waste and contractor abuse that the Council of Inspectors General for Integrity and Efficiency (CIGIE) proposed permanent expansion for all government contractors. Senator McCaskill introduced a whistleblower protection amendment for all government contractors, and won bipartisan Senate approval in the FY2013 NDAA. However, during the closing conference committee negotiations, best practice rights were enacted for all employees except those in the IC. In the aftermath, 10 U.S.C § 2409 provides permanent, best practice whistleblower rights to all Department of Defense contractors, except IC contractors. 47 U.S.C. § 4712 creates a four year experiment in those same rights for all other government contractor employees, again except for IC whistleblowers.
DEBUNKING MYTHS: Preexisting rights for IC contractors were removed, despite a proven track record that the law was working as intended and did not produce any adverse impacts on national security during its five-year lifespan. Based on the track record, there is no substantive policy argument for rolling back those existing rights. The loophole was justified on two grounds: 1) IC whistleblowers would flood the courts; and 2) judicial access inevitably would mean leaks of national security information. Neither can withstand scrutiny.
Contrary to predictions that intelligence whistleblowers would flood the courts, 25 cases were filed from 2008 through 2012 under the DoD contractor provision, including from the Intelligence Community. Under prior law that would be restored by the McCaskill amendment, most cases are resolved through investigations by the relevant agency Office of Inspector General (OIG).
The distrust of judicial security also has no empirical basis of reality. During the five years that NSA and DIA employees had best practice whistleblower rights, there is not even an allegation of national security leaks. The courts regularly must safeguard classified documents due to government exercise of the States Secrets Privilege, and through the Classified Information Procedures Act (CIPA) for criminal prosecutions.
OTHER PRECEDENTS: The NDAA EXPERIENCE is not unique. Since 1986 IC employees have been able to file False Claims Act lawsuits challenging fraud in government contracts, and to defend themselves in court against retaliation. That test has been passed without alleged side effects. Accountability should be extended beyond fraud, to cover waste and abuse as well. Similarly, 12 times since 2002 Congress has included best practice whistleblower protections as enforcement cornerstones of major remedial laws covering virtually the entire private sector, whether or not there is a government contract.  None have included IC loopholes. Again, there is no record even of alleged national security threats from these longstanding precedents. The same is the case for the Privacy Act, and constitutional tort actions. IC employee rights should not be canceled when the context is efforts to disclose alleged fraud, waste or abuse that could threaten either national security, or basic domestic freedoms.
PUBLIC POLICY IMPACT: Correcting this obvious void is essential for preserving our democracy, because the stakes could not be higher for our nation when dealing with Intelligence agency misconduct. The country cannot afford for IC contractors to remain silent with evidence of wrongdoing, whether the abuse breaches security, threatens freedom, spreads corruption, or all of the above. Importantly, Congress must be able to hear from insiders who have critical information regarding intelligence operations. Equally important, whistleblowers should have the legal right to safely bear witness to law enforcement officers and to work within institutional checks and balances. They report misconduct to make a difference, and those are the channels that deliver results.
SA 3711 also is the essential base for any serious effort to curtail classified media leaks. Six months after IC contractor rights were rolled back, NSA contractor Edward Snowden disclosed to journalists the U.S. government’s sweeping domestic surveillance programs. When asked why he didn’t go to the government first, he cited the severe retaliation that previous IC whistleblowers experienced when they worked through institutional channels without rights. The chilling effect for disclosing misconduct through proper channels is potent, and it inhibits Congress’ ability to conduct meaningful oversight.
The restoration of IC contractor whistleblower protections would help to safeguard billions of taxpayer dollars in government contracts, grants and reimbursements annually, and it would incentivize IC contractor whistleblowers to work within the system through legally protected public disclosures. There cannot be any doubt about the consequences from congressional action, or inaction, on whistleblower rights. In order to better protect taxpayer dollars, our country, and Americans’ privacy, Congress must restore whistleblower protections for IC contractors through passage of SA 3711.