Recently, Andrew Bakaj and my former counsel, Mark Zaid, responded to my critique of their first piece on the state of national security whistleblower protections, stating
We disagree, however, with Eddington’s position on our recent article, where we stated that, “it is only through cases like Ellard’s that senior officials will be forced to realize that reprisal comes with consequences and that seniority will have no bearing on an investigation’s outcome.” Eddington describes this as “magical thinking,” but that view is defeated by facts, our own casework and professional experiences, as well as our recent legal victories.
In reality, there is far less to their case than the authors assert.
While I congratulate Bakaj and Zaid on getting the Intelligence Community (IC) Inspector General (IG) to reverse a CIA IG decision involving one of their clients in an Equal Employment Opportunity (EEO) case, a future IC IG could chart a very different course. And the fact that the case apparently involved a security clearance issue does not guarantee that the same outcome can be obtained for those reporting waste, fraud, abuse, or criminal conduct, particularly under a different leadership at the IC IG office. The case of George Ellard, discussed at length in my original post, is ample proof of a real-world case in which a corrupt IG did real harm to real whistleblowers. Relying on the tender mercies of an IG office subject to internal subversion or even routine staff attrition is not a sound strategy for punishing, much less deterring, potential misconduct by an IG or an agency or department.
With respect to the Obama-era PPD-19 whistleblower process, Bakaj and Zaid state
Moreover, the individual is not a CIA Officer, but a former contractor with the CIA. This is significant because Eddington claims that IC contractors have no protection under PPD-19. Clearly, this is false. IC contractors are absolutely covered when the actions involve security clearances. In fact, not only has the IC IG underscored this protection, but clarified it in our above-referenced case to include protections for disclosing wrongdoing through the EEO process.
At the time I wrote my post, I was unaware of the case Bakaj and Zaid mentioned, and I found no reference to the case in the public domain at the time I wrote my piece. Even so, my caveat above applies, with an even more important clarification: IC contractors have no statutory protections in this area, despite the efforts of groups like the Government Accountability Project (GAP) and the Project on Government Oversight (POGO) to change the law to provide IC contractors with reliable legal shields.
And as Bakaj and Zaid know, the IC whistleblower protections codified in the 2014 Intelligence Authorization Act that they reference do not cover IC contractors. Given the huge number of IC contractors, and the extremely sensitive technical, programmatic, and policy work they do, this is a legal canyon, not a small loophole.
Indeed, as GAP’s Tom Devine noted in a joint press release upon the bill’s passage, the current deficiencies in IC whistleblower protection law go well beyond the “contractor protection canyon”:
Despite the Senate’s approval, Devine cautioned, “While a landmark first step, I couldn’t in good conscience reassure any whistleblower that the new rights make it safe to work within the system.” According to Devine, the weaknesses in the legislation that must be addressed in future versions are:
- Lack of protection against contradictory agency nondisclosure policies, forms or agreements, which are a safeguard in the WPEA’s “anti-gag” provision.
- Lack of hearings at an independent forum not controlled by the institution.
- Agency authority to justify actions with classified information denied to the employee.
- No employee rights to compel production of classified evidence that could make a difference in the case, except to prove that disclosures occurred.
- No employee rights to make congressional disclosures outside the select intelligence committees.
- No protection against security clearance actions of less than a year.
- A loophole permitting summary action by agency heads.
- An explicit ban on judicial review.
Not only do I wholeheartedly agree with Devine’s warnings to whistleblowers about the law’s limits and omissions, but I would go further. We need statutory mandatory minimum sentences, hefty fines (at least $100,000 per violation), and lifetime bars to federal reemployment or security clearance eligibility for those who engage in whistleblower retaliation—both to punish violators and deter those thinking about sand-bagging a whistleblower in their agency or department.
The available public record amply demonstrates that no administrative action by a self-interested and self-protective national security bureaucracy can provide IC whistleblowers (government employees or contractors) with the kind consistent, across-the-board protection—much less encouragement—that they need to help keep an overly secretive and often retaliatory-prone executive branch in check.
Bakaj and Zaid finish by making observations on their—and via inference, my—approach to these issues
While Eddington is entitled to believe our position is one of “magical thinking,” we think he is incorrect. We are realists who understand the system as it was developed and more importantly as it exists. Rather than simply criticize the laws and forego suggesting how modifications can be made, we strive to strengthen the laws already in place. But we also understand the reality of and difficulties with representing whistleblowers, regardless of whether they are in the Intelligence Community or elsewhere. Accordingly, we find it far more helpful to celebrate positive results as a movement for change than highlight negative deficiencies as predictors of doom.
Having served as a CIA military analyst for nearly nine years and a House staffer for over 10 (all of it working for Rep. Rush Holt (D-N.J.), a member of the House Permanent Select Committee on Intelligence (HPSCI)), I know the system as well as Bakaj and Zaid. Twenty-one years ago, I was a whistleblower. I was the subject of an unwarranted counterintelligence investigation in which those interviewed about me were asked, “Do you think Pat Eddington would allow his conscience to override his secrecy agreement?” The fact that I was able in my first piece to chronicle how many serious cases of whistleblower abuse remain two decades later only underscores the point that celebrating marginal advances in whistleblower protections is no strategy for ending the ongoing abuse.
Working for Holt, I repeatedly attempted to get an overly IC-friendly HPSCI to make many of the still-needed changes to provide real protections for IC whistleblowers. That Holt and I were blocked year after year by HPSCI only speaks to the gravity of the situation that remains today, as I noted in the Intercept last year. Contrary to Bakaj and Zaid, I’ve learned that harnessing controversy is essential, because it’s precisely what moves the legislative and policy needle in Washington. Edward Snowden is living proof of that—and of the need for other reforms that Devine, I, and others, continue to push for in the Trump era.