This page shows textual changes in the document between the two versions indicated in the dates above. Textual matter removed in the later version is indicated with red strikethrough and textual matter added in the later version is indicated with blue.
Whistleblowing is "the act of reporting waste, fraud, abuse and corruption in a lawful manner to those who can correct the wrongdoing." Intelligence Communitycommunity (IC) whistleblowers are those employees or contractors working in any of the 17 elements of the IC who reasonably believe there has been a violation of law, rule, or regulation,; gross mismanagement,; waste of resources,; abuse of authority,; or a substantial danger to public health and safety. The IC has publicly recognized the importance of whistleblowing, and supports protections for whistleblowers who conform to guidelines to protect or a substantial danger to public health and safety. The essential distinction between whistleblowers generally and those in the IC (or those who otherwise have security clearances) is the concern for protecting classified information that may be involved in an IC-related incident or complaint. The IC has recognized that whistleblowing can save taxpayers' dollars, ensure an ethical and safe working environment, and enable timely responses for corrective action.
Whistleblowing protections for employees and contractors in the IC are extended only to those who make a lawful disclosure. They do not cover disclosures that do not conform to statutes and directives prescribing reporting procedures intended to protect classified information, such as leaking to the media or a foreign government. IC whistleblowing does not include a difference of opinion over policy, strategy, analysis, or priorities for intelligence funding or collection unless there is a reasonable concern over legality or constitutionality. Whistleblowing protections also do not protect against legitimate adverse personnel or security clearance eligibility decisions if the agency can demonstrate that it would have taken the same action in the absence of a protected disclosure.
Congress and the executive branch have defined in statute and directives procedures for IC whistleblowers to make protected disclosures that also provide for the security of classified information. The Director of National Intelligence (DNI) whistleblowing policy and guidance is publicly available and specifically addresses whistleblowerthe process andfor making protected disclosures and whistleblower protections for IC contractors, members of the Armed Forces, and federal employees. There are differing opinions, however, on whether the IC's internal processes have the transparency necessary to ensure adequate protections against reprisal, and whether protections for IC contractors are sufficient.
IC whistleblower protections have evolved in response to perceptions of gaps that many believed left whistleblowers vulnerable to reprisal. The first whistleblower legislation specific to the IC was the Intelligence Community Whistleblower Protection Act (ICWPA) of 1998. It was limited to specifying a process for an IC whistleblowerIC whistleblowers to make a complaint but offered no specific protections. The Intelligence Authorization Act for Fiscal Year 2010 included provisions for protecting IC whistleblowers, though these were general and subject to different standards ofSubsequent legislation included only general provisions for protecting IC whistleblowers with no additional guidance on standards for implementation. Presidential Policy Directive (PPD)-19, signed in 2012, provided the first specific protections in response to perceptions that IC whistleblowers remained vulnerable toagainst reprisal actions for making a complaint. The Intelligence Authorization Act for Fiscal Year 2014 codified PPD-19 provisions, and Intelligence Community Directive (ICD)-120 provided PPD-19 implementation policy. For members of the Armed Forces assigned to elements of the IC, Title 10 U.S. Code Section 1034 provides whistleblower protections. Department of Defense (DOD) implementing guidance for Section 1034 can be found in DOD Directive 7050.06, Military Whistleblower Protection.
Whistleblowing is "the act of reporting waste, fraud, abuse and corruption in a lawful manner to those who can correct the wrongdoing."1 Intelligence Community (IC) whistleblowers are those employees or contractors working in any of the 17 elements of the IC who reasonably believe there has been a violation of law, rule, or regulation,; gross mismanagement,; waste of resources,; abuse of authority,; or a substantial danger to public health and safety. The essential distinction between whistleblowers generally and those in the IC (or those who otherwise have security clearances) is the concern for protecting classified information that may be involved in an IC-related incident or complaint. The IC has recognized that whistleblowing can save taxpayers' dollars, help ensure an ethical and safe working environment, and enable timely responses for corrective action.
Whistleblowing protections for employees and contractors in the IC are extended only to those who make a lawful disclosure. They do not cover disclosures that do not conform to statutes and directives prescribing reporting procedures intended to protect classified information, such as leaking to the media or a foreign government. IC whistleblowing does not includeThe whistleblower protections do not apply to a difference of opinion over policy, strategy, analysis, or priorities for intelligence funding or collection unless there is a reasonable concern over legality or constitutionality. Whistleblowing protections also do not protect against legitimate adverse personnel or security clearance eligibility decisions if the agency can demonstrate that it would have taken the same action in the absence of a protected disclosure.
Congress and the executive branch have defined in statute and directives procedures for IC whistleblowers to make protected disclosures that also provide for the security of classified information. The Director of National Intelligence (DNI) whistleblowing policy and guidance is publicly available and specifically addresses whistleblower process and protections for IC contractors, members of the Armed Forces, and federal employees.2 There are differing opinions, however, on whether the IC's internal processes have the transparency necessary to ensure adequate protections against reprisal, and whether protections for IC contractors are sufficient.
IC whistleblower protections have evolved in response to perceptions of gaps that many believed left whistleblowers vulnerable to reprisal. The first whistleblower legislation specific to the IC was the Intelligence Community Whistleblower Protection Act (ICWPA) of 1998. It was limited to specifying a process for an IC whistleblower to make a complaint but offered no specific protections. The Intelligence Authorization Act for Fiscal Year 2010 included provisions for protecting IC whistleblowers, though these were general and subject to different standards of implementation. Presidential Policy Directive (PPD)-19, signed in 2012, provided the first specific protections in response to perceptions that IC whistleblowers remained vulnerable to reprisal actions for making a complaint. The Intelligence Authorization Act for Fiscal Year 2014 codified the PPD-19 provisions, and Intelligence Community Directive (ICD)-120 providedestablished a PPD-19 implementation policy. For members of the Armed Forces assigned to elements of the IC, Title 10 U.S. Code Section U.S.C. §1034 provides whistleblower protections. Department of Defense (DOD) implementing guidance for Section 1034 can be found in DOD Directive 7050.06, Military Whistleblower Protection.
The Intelligence Community Whistleblower Protection Act of 1998 (ICWPA)3 was intended to assist whistleblowers in the IC who are specifically excluded from the Whistleblower Protection Act of 1989. It should be noted that the ICWPA makes no explicit mention of members of the Armed Forces assigned to an IC element.4 It amended previous acts of Congress—the Central Intelligence Agency Act of 1949, and the Inspector General Act of 1978—to enable an IC government employee or contractor "who intends to report to the Congress a complaint or information with respect to an urgent concern" to report to the Inspector General (IG) of the employee's or contractor's IC agency.5 Congress noted that the absence of this provision in law previously "may have impaired the flow of information needed by the intelligence committees to carry out oversight responsibilities."6 Consequently, the ICWPA of 1998 defines formal processes for submitting complaints that ensure the protection of classified information that may be involved.:
Although the ICWPA provides a process for IC whistleblowers—employees and contractors—to securely report complaints to Congress via the relevant IC agency IG, it offers no specific provisions for protecting whistleblowers from reprisal or punishment.7
The IAA for FY 2010FY2010 (P.L. 111-259, §405) included the first general provisions for protection of whistleblowers as part of legislation that established the Office of the Inspector General of the Intelligence Community (OIGIC), headed by the Inspector General of the Intelligence Community (IGIC). Section 405(f)(3)(A)-(Ba)(1) of the IAA for FY2010 added a new Section 103H to the National Security Act of 1947. Section 103H(g) permitted lawful disclosures to the IGIC, but lacked the specificity of later whistleblower protection legislation and directives:
(3) The Inspector General [of the Intelligence Community] is authorized to receive and investigate, pursuant to subsection (h), complaints or information from any person concerning the existence of an activity within the authorities and responsibilities of the Director of National Intelligence constituting a violation of laws, rules, or regulations, or mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to the public health and safety. Once such complaint or information has been received from an employee of the intelligence community—
(A) the Inspector General shall not disclose the identity of the employee without the consent of the employee, unless the Inspector General determines that such disclosure is unavoidable during the course of the investigation or the disclosure is made to an official of the Department of Justice responsible for determining whether a prosecution should be undertaken; and
(B) no action constituting a reprisal, or threat of reprisal, for making such complaint or disclosing such information to the Inspector General may be taken by any employee in a position to take such actions, unless the complaint was made or the information was disclosed with the knowledge that it was false or with willful disregard for its truth or falsity.
8Section 405 does cover contractors in addition to federal employees of IC elements:
The Inspector General [of the IC] shall have access to any employee, or any employee of a contractor, of any element of the intelligence community needed for the performance of the duties of the Inspector General."89
An employee of an element of the intelligence community, an employee assigned or detailed to an element of the intelligence community, or an employee of a contractor to the intelligence community who intends to report to Congress a complaint or information with respect to an urgent concern may report such complaint or information to the Inspector General.9
Section 425(d) of the IAA for FY2010 also amended the Central Intelligence Agency Act of 1949 clarifying existing protections against reprisals against CIA employees who make lawful disclosures to the CIA Inspector General.10
PPD-19, Protecting Whistleblowers with Access to Classified Information, signed by President Obama on October 10, 2012, provided the first executive branch protections for IC whistleblowers. PPD-19 specifically protects some employees in the IC (it specifically excludes members of the Armed Forces)11 eligible for12 with access to classified information, from personnel actions taken in reprisal for making a lawful disclosure.1213
PPD-19 defines a protected disclosure as,
a disclosure of information by the employee to a supervisor in the employee's direct chain of command up to and including the head of the employing agency, to the Inspector General of the employing agency or Intelligence Community Element, to the Director of National Intelligence, to the Inspector General of the Intelligence Community, or to an employee designated by any of the above officials for the purpose of receiving such disclosures, that the employee reasonably believes evidences (i) a violation of any law, rule, or regulation; or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
Title VI of the FY 2014FY2014 IAA (P.L. 113-126) codified provisions of PPD IAA (P.L. 113-126, codified as 50 U.S. Code, Section 3234), Protection of Intelligence Community Whistleblowers, codified provisions of PDD-19 and provided the first expansive statutory protections for IC whistleblowers against personnel or security clearance actions made in reprisal for protected disclosures.1416
First signed in 2014, and updated on April 29, 2016, ICD-120, Intelligence Community Whistleblower Protection, provides IC implementing guidance for PPD-19. ICD-120 provisions include the following:
Section 1034 of Title 10 U. S. Code Section 1034 Code provides protections against personnel actions taken in retaliation for protected communications by members of the Armed Forces.2224 The Office of the DNI cites this legislationstatute as applicable to members of the Armed Forces assigned to the IC elements.2325 Section 1034—unlike the ICWPA, which makes no mention of applicability to the Armed Forces—does not provide a process for making a protected communication that also protects classified information. Section 1034
Coverage of contractors in existing IC whistleblower protection legislation is inconsistent. The ICWPA of 1998, which provides for a process for reporting a whistleblower complaint, does cover contractors, as do protections in Section 405 of the IAA for FY 2010FY2010, and Title VI of the IAA of 2014. However PDD, PPD-19 and ICD-120 do not mention contractors. There have been twothree subsequent efforts in Congress to address the gap in perceived coverage, culminating on January 19, 2018, when Congress passed P.L. 115-118, an amendment to the Foreign Intelligence Surveillance Act of 1978, which included Section 110 provisions to address perceived gaps in protections for IC contractors..
Senator McCaskill introduced S. 2002 on October 24, 2017. It was referred to the SSCISenate Select Committee on Intelligence (SSCI) and no further action was taken. S. 2002 would have provided protections for IC employees—to include applicants, former employees, contractors, personal services contractors, and subcontractors—from being "discharged, demoted, or otherwise discriminated against" as a consequence of making a protected disclosure. It also includesincluded provisions for a process for making a complaint.
On March 18, 2015, Senator McCaskill introduced S. 794. It was referred to the SSCI and no further action was taken. The bill would have amended Section 2409 of Title 10 U.S. Code §2409(e) by extending protections for contractor employees on a contract with DOD or other federal agencies to contractor employees on a contract with an IC element who comply with an existing lawful process for making a whistleblower complaint, to include protection of classified information that is part of a court action.28
On January 19, 2018, Congress passed P.L. 115-118, an amendment to the Federal Intelligence Surveillance Act of 1978. Section 110 amended Section 1104 of the National Security Act of 1947 by providing protections for IC contractor whistleblowers.31 Section 110 amended existing whistleblower protections to enable IC contractors to make lawful disclosures to the head of the contracting agency (or an employee designated by the head of that agency for such purpose), or to the appropriate inspector general of the contracting agency, as well as to the DNI, IGIC, and the congressional intelligence committees (or members of the committees). These protections are similar to those for IC employees under Title VI of the IAA for FY2014 (P.L. 113-126). That legislation, however, included no provisions for contractors. Section 110 provides unambiguous protections for IC contractors making a lawful complaint against any retaliatory personnel action involving an appointment, promotion/demotion, disciplinary or corrective action, detail, transfer or reassignment, suspension, termination, reinstatement, performance evaluation, decisions concerning pay, benefits, awards, education, or training. The protections extend to lawful complaints involving, a violation of any Federal law, rule or regulation (including with respect to evidence of another employee or contractor employee accessing or sharing classified information without authorization); or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.32 These protections extend to contractors of the FBI—including contractors of the IC element of FBI, the Intelligence Branch—similar to the protections for IC employees and contractors under the Section 3234 of Title 50, U.S. Code, as amended.33 Section 110 also amended Section 3341(j) of Title 50, U.S. Code, to include protections for IC contractors who make lawful whistleblower disclosures against retaliatory revocation of their security clearances. House Amendment 89430
Section 110 of P.L. 115-118, Whistleblower Protections for Contractors of the Intelligence Community
2934
Author Contact Information
1. |
Daniel Coats, Director of National Intelligence, "IC Leadership Support," Introducing IC Whistleblowing, at https://www.dni.gov/ICIG-Whistleblower/. |
|||||
2. | ||||||
3. |
Title VII of the Intelligence Authorization Act for Fiscal Year 1999, P.L. 105-272 §§701-702. |
|||||
4. |
See below in this report. |
|||||
5. |
The ICWPA defines an "urgent concern" as |
|||||
6. |
P.L. 105-272, §701. |
|||||
7. |
Subsequent legislation that specifically prohibits actions taken in reprisal for an IC employee making a lawful disclosure (a disclosure that adheres to the 1998 ICWPA process for making a complaint while protecting classified information) underscores the perception that the ICWPA process alone did not constitute a protection for a whistleblower against adverse personnel action. |
|||||
8. |
|
|||||
|
||||||
P.L. 111-259 §425(d). The provisions for prohibiting reprisal actions for lawful whistleblower disclosures to the CIA Inspector General can be found in 50 U.S.C. §3517(e)(3)(A)-(B). |
||||||
In addition to excluding members of the Armed Forces, PPD-19 otherwise does not define employee, and does not include any reference to IC contractors. To some this is an important omission. The following year, 2013, Edward Snowden, a Booz Allen Hamilton contractor working at the National Security Agency, leaked classified documents to the media claiming there were no protections for someone with his status as a contactor to submit a whistleblowing complaint. The ICWPA of 1998, which provides for a process for submitting a whistleblowing complaint (but does not specify protections against prohibited reprisals), applies to contractors as well as federal IC employees. See Joe Davidson, "No Whistleblower Protections for Intelligence Contractors," The Washington Post, June 19, 2013, at https://www.washingtonpost.com/politics/federal_government/no-whistleblower-protections-for-intelligence-contractors/2013/06/19/dc3e1798-d8fa-11e2-a9f2-42ee3912ae0e_story.html?utm_term=.3319c1b46f47. |
||||||
The Directive pertains to all elements of the IC with the specific exception of the Federal Bureau of Investigation (FBI). |
||||||
Adverse personnel actions might include demotion, transfer, termination, suspension, lower performance evaluation or punitive changes in duties and responsibilities. |
||||||
|
16.
Presidential Policy Directive (PPD)-19, Protecting Whistleblowers with Access to Classified Information, The White House, October 10, 2012, at https://www.va.gov/ABOUT_VA/docs/President-Policy-Directive-PPD-19.pdf. |
The provisions under this legislation cover all IC elements except the Intelligence Branch of the Federal Bureau of Investigation (FBI/IB). See 50 U.S.C. §3234(a)(2)(B). |
||||
The scope of personnel actions covered by the legislation includes |
||||||
50 U.S.C. §3341(j). Coverage for this legislation on protections against retaliatory revocation of security clearances includes all elements of the IC—including the FBI/IB—in addition to other |
||||||
50 U.S.C. §3341(b)(7). |
||||||
A private right of action |
||||||
The ICD-120 provision protecting against personnel actions made in retaliation for a lawful disclosure covers all elements of the IC with the specific exception of the FBI. See ICD-120(E)(1)(d), at https://www.dni.gov/files/documents/ICD/ICD%20120%20-%20IC%20Whistleblower%20Protection%20(29%20Apr%202016).pdf. |
||||||
See ICD-120(E)(1)(b)(4). Protections for members of the Armed Forces against personnel actions made in reprisal for a lawful disclosure are covered by 10 U.S.C. §1034. See |
||||||
"Employee" is defined to include |
||||||
This |
||||||
See Office of the Director of National Intelligence, "What Are My Protections?" at https://www.dni.gov/ICIG-Whistleblower/protected.html. See also DOD Directive 7050.06, Military Whistleblower Protection, April 17, 2015. |
||||||
10 U.S.C. §1034
(i) The threat to take any unfavorable action. (ii) The withholding, or threat to withhold, any favorable action. (iii) The making of, or threat to make, a significant change in the duties or responsibilities of a member of the armed forces not commensurate with the member's grade. (iv) The failure of a superior to respond to any retaliatory action or harassment (of which the superior had actual knowledge) taken by one or more subordinates against a member. (v) The conducting of a retaliatory investigation of a member. |
||||||
10 U.S.C. §1034(c)(4)(E). |
||||||
10 U.S.C. §1034(e)(3)(A). |
||||||
10 U.S.C. §1034, note ("Uniform Standards for Inspector General Investigations of Prohibited Personnel Actions and Other Matters |
||||||
10 U.S.C. §2409(e)(1) currently excludes contractor employees of IC elements. See Joe Davidson, "No Whistleblower Protections for Intelligence Contractors," The Washington Post, June, 19, 2013, at https://www.washingtonpost.com/politics/federal_government/no-whistleblower-protections-for-intelligence-contractors/2013/06/19/dc3e1798-d8fa-11e2-a9f2-42ee3912ae0e_story.html?utm_term=.3319c1b46f47. |
||||||
|
P.L. 115-118, §110. 32.
|
|
50 U.S.C. §3234(c)(1)(A)-(B). The previous paragraph of §3234 governing lawful disclosures by IC agency employees differs from that for the paragraph for contractor employees only in one word: Contractor employees may disclose "gross mismanagement" while agency employees may disclose "mismanagement." 33.
|
|
See §110(b)(1)-(5) of P.L. 115-118. |
See Department of Defense Appropriations Act for Fiscal Year 2015 (H.R. 4870, 113th Cong.), Title VII, Amendment Offered by Mr. Holt, pp. H5466-H5467. |