Presidential Policy Directive on Whistleblowers Draws Criticism

A recent White House directive on national security whistleblowers has sparked a major dialog in the whistleblower community. You can read the National Whistleblowers Center’s press release on the directive here.

Below is a full-text analysis from the Whistleblower Support Fund’s Linda Lewis (originally published here).

On Wednesday, President Obama signed a new Presidential Policy Directive (PPD-19) entitled, “Protecting Whistleblowers with Access to Classified Information.”

The presidential policy directive aims to ensure intelligence and national security employees are able to legally report agency wrongdoing and be protected from retaliation for doing so. (Federal News Radio).

When I first heard about the directive, I was hopeful that whistleblowers with security clearances might finally get needed protections. But, as I pored over the directive’s details, I became disappointed. I am not a lawyer, so perhaps I missed something of potential benefit. I am quite familiar, though, with the federal bureaucracy’s past responses to whistleblowers with security clearances.

The new directive tasks “various components of the intelligence community” with creating internal procedures for reviewing adverse personnel actions taken against employees who report wrongdoing within their organization, and gives them until July 2013 to do that. The “protections” laid out in the direction will not apply to personnel actions taken before that time.

The President directs intelligence agencies to provide their employees with a review process for adverse actions taken against them. That, alone, is inadequate to really protect employees from retaliation. When agencies write the rules, the rules benefit the agencies. A good example of this is the Department of Agriculture’s procedure for appealing security clearance revocations. It severely limits the evidence an employee can present in defense and bars the employee from even appearing before the agency panel that renders a decision. Worse still, an agency may fail to provide even the thin protections that exist on paper.

The new directive does give employees alleging retaliation the right to request an external review by a panel of inspectors general. This offers some benefit, although inspectors general are sometimes as reluctant to protect whistleblowers as the agencies they oversee. But, once this panel has completed its review, their findings go to the agency head for a final decision as to providing relief to the whistleblower. This undermines the benefit, if any, provided by the inspectors general review. A typical agency reprisal consists of revoking a whistleblower’s security clearance and, by law, the authority to revoke a clearance lies with the head of the agency. The President’s directive thus tasks the same official responsible for revoking a whistleblower’s clearance with deciding that the revocation was improper. That’s not very likely, although miracles do happen.

What the new directive does is give intelligence community whistleblowers lots of process without substantially changing the result. Most likely, the “reviews” will materialize as retaliatory investigations of the employee (now given the cover of a presidential directive) giving agencies an opportunity to supplement their smear files while ignoring evidence and witnesses favorable to the employee. Potentially, the whistleblower would emerge from the process worse off than when it began.

The directive provides no right to external review, i.e., for appeal to a federal court, and denies its “protections” to disclosures an employee makes outside the organization. That would include Congress, although employees supposedly have an existing right to take disclosures to Congress (with restrictions for classified disclosures).

If there is any potential benefit for whistleblowers in the new directive, the lack of retroactivity in the directive will give agencies an incentive to step up adverse personnel actions against whistleblowers prior to July 2013. And, if Mitt Romney wins in November, all bets are off.

I found no language in the directive that clearly applies it to security clearance holders who are not employed in the “Intelligence Community.” The President’s memo does not mention agencies like the Food Safety and Inspection Service where virtually all senior managers are required to hold security clearances. Those employees, it seems, exist in a black hole where the light of justice does not reach. On the other hand, the stated “protections” in the new directive are largely illusory.

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