There is a lot of discussion as to whether Edward Snowden, the NSA Whistleblower is a hero or a villain. If the government had established procedures under which intelligence employees could report wrongdoing and be protected from retaliation, Snowden would not have had to risk his freedom and career by releasing documentation of official misconduct to the press. However, there are currently no effective protections for workers in the intelligence community.
The intelligence community is exempt from Whistleblower Protection Act. Russell Tice spoke to MSNBC about this issue yesterday.
Mr. Tice states in the interview:
“The Whistleblower Protection Act does not apply to the intelligence community. They’re exempt from it. And most people in the intelligence community don’t realize that. So, you can’t even go to the Office of Special Counsel because they’re exempt from that, too, and the merit system protection board. So even if you use the Intelligence Community Whistleblower Protection Act, the only thing that gives you is the right to go to Congress. It doesn’t–it doesn’t have any teeth there to protect you against retribution from the agency that you’re reporting abuse on.”
In the past few days the Obama Administration has touted it’s October 10, 2012, Presidential Policy Directive which was designed to “protect” national security whistleblowers. At the time this directive was released the National Whistleblower Center strongly criticized it as failing to provide any real or substantive legal rights for national security employees. See NWC Press Release.
While the Directive appeared on its face to help national security whistleblowers by requiring these agencies to establish a process for whistleblowers to seek review of prohibited personnel actions, it actually insulated the government from any liability to whistleblowers and barred whistleblowers from relying on the Directive to enforce any legal rights. The closing paragraph explicitly limits the legal enforceability of any the rights or procedures established under the Directive:
This directive is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
The Directive also received a strong criticism from the whistleblower. See our previous post on this issue here: Presidential Policy Directive on Whistleblowers Draws Criticism
Yesterday the Washington Times published an article that featured an interview with Stephen Kohn, the Executive Director of the National Whistleblower Center. In this article Mr. Kohn renewed the NWC’s criticism of the directive and of the decrease in protection for intelligence workers under the Obama Administration.
Mr. Kohn told the Washington Times that the Directive is “window dressing, or worse because it doesn’t provide for judicial review and the agency head retains authority over the whistleblower at all times.” He went on to blame the Obama Administration for Mr. Snowden’s release of classified information stating “There is no avenue for a national-security employee to raise concerns about illegality and misconduct. Any avenue that exists is so heavily weighted against the whistleblower, we recommend against it.” Read the full text of the article.
Mr. Kohn also discussed the role of the First Amendment as it applies to whistleblower rights to inform the public of official wrongdoing on CNBC’s Closing Bell.