President Obama has done what Congress has not: Extend whistleblower protections to national security and intelligence employees.
A new presidential policy directive says employees "who are eligible for access to classified information can effectively report waste, fraud, and abuse while protecting classified national security information. It prohibits retaliation against employees for reporting waste, fraud, and abuse."
With this directive, issued last week, Obama hands national security and intelligence community whistleblowers and their advocates an important victory in their frequently frustrating efforts to expand protection against retaliation for federal employees who expose agency misconduct.
Protection for intelligence and national security workers was not included, as advocates had hoped, in the Whistleblower Protection Enhancement Act that passed the House last month and now awaits action in the Senate. Retaliation can come in different forms, including dismissals, assignments or revocation of security clearances.
Obama instructed agencies, including the CIA, to establish a review process, within 270 days, that allows employees to appeal actions in conflict with the directive that affect their access to classified information.
Angela Canterbury, director of public policy for the Project on Government Oversight, an advocacy group, said "this unprecedented Presidential Policy Directive is leveled at the endemic culture of secrecy in the intelligence community (IC) and the dearth of accountability it fosters. The directive prohibits retaliation for protected disclosures by IC employees; prohibits retaliatory actions related to security clearances and eligibility for access to classified information and directs agencies to create a review process for related reprisal claims; mandates that each intelligence agency create a review process for claims of retaliation consistent with the policies and procedures in the Whistleblower Protection Act (WPA); provides significant remedies where retaliation is substantiated, including reinstatement and compensatory damages; and creates a review board of Inspectors General (IGs) where IC whistleblowers can appeal agency decisions."
These measures do not only protect free-speech rights, advocates say. The provisions also make unauthorized leaks of sensitive information less likely by creating a proper avenue for whistleblowers.
But for all it does, the directive "only is a landmark breakthrough in principle," according to another organization, the Government Accountability Project (GAP).
"Until agencies adopt implementing regulations, no one whose new rights are violated will have any due process to enforce them," said Tom Devine, GAP's legal director. "Further, there are only false due process teeth on the horizon," because, according to GAP, regulations to enforce whistleblower rights will be written by the same agencies that routinely are the defendants in whistleblower retaliation lawsuits.
Both Canterbury and Devine praised Obama's action, while calling on Congress to make his order the law. "President Obama has kept his promise to national security whistleblowers...," Devine said. "This law is no substitute for congressional action to make the rights permanent, comprehensive, and enforceable through due process teeth."
Obama's promise was in the administration's September 2011 "National Action Plan" for transparency and open government. It said "if Congress remains deadlocked, the Administration will explore options for utilizing executive branch authority to strengthen and expand whistleblower protections."
National security whistleblower protections are not in the legislation now before Congress because the Republican leadership of the House Permanent Select Committee on Intelligence (HPSCI) opposed them.
Committee Chairman Mike Rogers, R-Mich., "dragged his feet, never held a hearing, and never fully explained his concerns," Canterbury said. "This put the House co-sponsors in a tough spot. They ultimately removed all of the intelligence-related provisions so that Rogers would relinquish his hold and they could move the bill."
Under Rogers, according to Devine, "for two years HPSCI has refused to engage in serious discussions on national security whistleblower rights, either with the public or even Republican offices seeking a consensus."
Rogers' committee staff did not respond to requests for comment.
Though happy about Obama's directive, whistleblower advocates are not totally pleased with the way the administration has, in some cases, treated whistleblowers. Canterbury said she is "truly gratified and grateful" for the directive, but noted "we also have been critical of this Administration's prosecutions of so-called leakers under the Espionage Act. We have raised concerns about the possible infringement of rights and the chilling effect on would-be whistleblowers of the aggressive prosecutions and certain post-WikiLeaks policies."
Obama's directive does a lot to balance those concerns. At the same time, Canterbury, Devine and other advocates will continue to push Congress to follow the president's lead by approving legislation with national security whistleblower protections.
"The President has done his share with this landmark breakthrough," Devine said. "Congress needs to finish what he started."