We previously reported about the Senate Intelligence Committee’s plan to include a provision in the Intelligence Authorization Bill (S. 719) requiring federal employees working at intelligence agencies to sign a contract stipulating that they would forfeit their federal pensions if they violated non-disclosure agreements, agency pre-publication review regulations or disclosed information to the press, outside groups like Wikileaks, or even Congress. The provision will give the head of each intelligence agency broad discretionary power to decide what a "leak" is – which will be broadly defined to include complaints about violations of law, waste, fraud and abuse, or risks to public safety.
Yesterday, the Senate published the bill and Senator Ron Wyden (D-OR) issued a press release and floor statement announcing his strong opposition to this bill because it will chill employee rights to report wrongdoing at intelligence agencies and will not afford employees due process if they are accused of violating this provision. Senator Wyden stated:
It is unfortunately entirely plausible to me that a given intelligence agency could conclude that a written submission to the congressional intelligence committees or an agency Inspector General is an “unauthorized publication,” and that the whistleblower who submitted it is thereby subject to punishment under section 403, especially since there is no explicit language in the bill that contradicts this conclusion. Withholding pension benefits from a legitimate whistleblower would be highly inappropriate, but overzealous and even unscrupulous individuals have served in senior government positions in the past, and will undoubtedly do so again in the future. This is why it is essential to have strong protections for whistleblowers enshrined in law, and this is particularly true for intelligence whistleblowers, since, given the covert nature of intelligence operations and activities, there are limited opportunities for public oversight. But reporting fraud and abuse by one’s own colleagues takes courage, and no whistleblowers will come forward if they do not believe that they will be protected from retaliation.
Senator Wyden has also announced he will block the bill from coming to the Senate floor for a vote if it contains this harmful provision. It is unclear what support exists in the Senate for this provision, but Senator Wyden’s hold could be overridden if there are 60 votes in favor of passing this bill with the anti-whistleblower pension provision in it.
A copy of Sen. Wyden’s press release and floor statement is here.
Steven Aftergood has also posted an article in Secrecy News about the Senate’s proposal to strip pensions from federal employees who are accused of leaking. A copy of Aftergood’s article can be found here.
Although purportedly directed at punishing leakers of classified information, this provision also would strip pensions for any violation of a non-disclosure agreement and agency pre-publication review regulations. Those agreements and regulations require employees and former employees of intelligence agencies to submit for prepublication review by the agency any and all information that was acquired by the employee during the scope of their official duties prior to disseminating it to anyone outside the agency. In other words, employees and former employees would risk their pensions if they violated the non-disclosure agreement or prepublication regulations by revealing any information, regardless of whether it is marked sensitive or classified.
Even if an employee or former employee desired to disclose violations of law, that employee would, if this proposal became law, risk his or her pension because such information would fall within the scope of the non-disclosure agreement and be governed by the pre-publication review regulations.
Those familiar with whistleblowers know that federal employees who have the courage to speak out about misconduct and violations of law are often wrongfully accused of leaking information in retaliation for speaking the truth. If enacted, this provision would allow intelligence agencies to take it one step farther and strip an employee of his or her hard-earned pension if they are accused of leaking information (even non-classified information), and these penalties will apply to former employees who sign such an agreement after this bill is enacted.
The agency will be able to revoke the employee’s pension without having to go to court and without a trial and conviction of the employee for illegally disclosing classified information.
As a result, the "chilling effect" on federal employees will be immense. They already risk their careers to blow the whistle and have little, if any, legal remedies for getting their jobs back. Now they will be risking their pensions as well.
It is more important now than ever that your voice be heard in opposition to this proposal. Please TAKE ACTION and tell the Senate to remove this harmful language from the Intelligence Authorization Bill.
A copy of the bill, S. 719, is here.
A copy of the committee report, S. Rep. 112-12, is here.