On One-Year Anniversary of Snowden Disclosures, IC Contractors Lack Whistleblower Protections

Today marks the one-year anniversary of the first media report based on National Security Agency (NSA) contractor and Government Accountability Project (GAP) client Edward Snowden's disclosures. The whistleblower's revelations sparked a necessary debate over privacy and constitutional rights, and continue to expose the agency's intrusive and unconstitutional surveillance programs.

However, critics continue to proclaim that the whistleblower should have "worked within the system" to report the government's domestic surveillance program. This is a disingenuous and false suggestion. Snowden repeatedly raised concerns internally. More importantly, under current law, intelligence community (IC) government contractors lack any effective rights against retaliation when they report government waste, fraud, and abuse.

On this lack of protections, GAP Legal Director Tom Devine commented:

Intelligence contractor whistleblowers' only chance to defend themselves is in a hearing controlled by the same institutions retaliating against them. That was not always the case. Just six months before Snowden's disclosures began, the House Intelligence Committee removed existing protections for certain IC contractors. Repression is the primary factor causing classified media leaks, because there is no safe legal alternative.

GAP National Security & Human Rights Director Jesselyn Radack, who serves as legal counsel to Snowden, stated:

The best way for the government to stop leaks is to enact meaningful and effective whistleblower protection. It is appalling that a year after Snowden's history-changing disclosures, national security and intelligence contractors still have no viable channels through which they can expose fraud, waste, abuse and illegality.

Background and Need for Reform

Under current law, Intelligence Community (IC) government contractors remain defenseless in terms of genuine protection - an independent due process hearing or day in court - when they blow the whistle on government waste, fraud, abuse of authority, gross mismanagement or a violation of law. But whistleblowers are often the only witnesses to abuses of power that betray the public trust. It is imperative that Congress quickly fills this accountability loophole by providing IC contractors with safe channels to report government wrongdoing. In the absence of adequate protections, whistleblowers will likely remain silent observers of wrongdoing or resort to media disclosures.

Congress has recognized this principle twelve times since 2002 by including best practice whistleblower protections as enforcement cornerstones of major remedial laws. However, the most recent protections passed in the National Defense Authorization Act for FY13 cover all government contractors except those in the intelligence community, which were removed at the insistence of the House Permanent Select Committee on Intelligence (HPSCI). These protections included preexisting rights for defense contractors with access to classified information. Additionally, the Stimulus Law included model IC whistleblower protections for all recipient contracts of stimulus spending. However, those protections expired as stimulus spending came to an end. Recently, Presidential Policy Directive 19 included limited IC contractor rights.

Congressional champions are preparing an IC contractor whistleblower bill that would restore these rights and offer strong uniform whistleblower protections for contractors who disclose waste, fraud, gross mismanagement or a violation of law. If passed, this legislation would safeguard billions of taxpayer dollars in government contracts, grants and reimbursements annually, and it would incentivize IC contractor whistleblowers to work within the system. In its absence, we can only expect leaks to continue if HPSCI continues to successfully deny protections for whistleblowers that work through legal channels.

We only know enough to contemplate the current NSA reform because of public whistleblowing by Snowden, an intelligence contractor who had no specific protections for making legal, nonpublic disclosures. Importantly, Congress must be able to hear from insiders who have critical information regarding intelligence operations, whether the misconduct breaches security, threatens freedom, spreads corruption, or all of the above.

One of the great lessons of the Snowden disclosures has been that members of Congress have not been adequately overseeing these programs. Contractors on intelligence operations must have real protection for legitimate whistleblower disclosures made to Congress, congressional staff with appropriate security clearance, or government watchdogs. Further, it is not adequate only to protect disclosures made to the intelligence committees. Such a monopoly in information needed to conduct congressional oversight does not exist in any other context in the federal government.

There cannot be any doubt about the consequences from congressional action, or inaction, on whistleblower rights. Without authentic legal protections for making disclosures to Congress and government watchdogs, enforcement of the Constitution and privacy rights will remain an honor system for agencies that have been secretly abusing their power. To identify government abuse, Congress must extend best practice whistleblower protections to IC contractor workers.