The intelligence community’s top lawyer said Thursday that giving contractors whistleblower protection is “complicated.”
Robert Litt, general counsel for the director of national intelligence, said a contractor “isn’t working for the government,” and as a result, under current law: “The government doesn’t straight out have the authority to say whether that person can be fired; that’s up to the contractor.”
The lack of whistleblower protection for intelligence community contractors has become a central issue in the debate over whether Edward Snowden, then working at the National Security Agency as a contractor for Booz Allen Hamilton, did the right thing in taking his concerns about surveillance programs — and a trove of documents — to journalists. Public figures including Hillary Clinton have incorrectly asserted that Snowden would have been protected from reprisal had he gone through proper channels.
Litt was correct in saying that whistleblowers who work as contractors for intelligence agencies can be fired, silenced, or otherwise retaliated against for blowing the whistle with almost no legal protections.
But it doesn’t have to be that way. Congress gave contractors within the intelligence community strong whistleblower protections for five years without any problems, before unceremoniously cutting them off in 2012.
Many activists and lawmakers have been trying to salvage those rights ever since.
During a panel session with other top government lawyers at the American Bar Association’s 25th annual “Review of The Field of National Security Law,” Litt listed some of the legal protections available for civil servants who report concerns to overseers like the inspector general or Congress. He pointed to a 2014 legal directive issued by the director of national intelligence, which says the government can’t snatch away security clearances from contractors who raise complaints through official channels. But he admitted that other protections don’t necessarily apply. “That’s a little more complicated problem,” he said.
Contractors, however, play a huge role in the intelligence services. There are literally too many for the government to count, although as a frame of reference, a total of 483,263 contractors held top-secret clearances in 2012.
In the fiscal year 2008 National Defense Authorization Act (NDAA), lawmakers included strong protections for all Department of Defense contractors, including those working for the Defense Intelligence Agency and the NSA. Those protections ranged from the right to challenge retaliation after lodging a complaint, all the way to launching a district court jury trial to defend those rights. Sen. Claire McCaskill, D-Mo., the senator behind the amendments, said whistleblower protections are “our best shot at stopping the waste and fraud in our military contracting.”
Protections were expanded to CIA and other intelligence contractors paid with stimulus funds the following year, as part of the stimulus legislation.
These programs were so successful that the Council of Inspectors General for Integrity and Efficiency actually proposed that every government contractor be afforded the same robust protections permanently.
“Despite red herrings that whistleblowers would flood the courts and there would be a rise in national security leaks, neither event occurred. There is no credible policy argument for denying protections to intelligence contractors who safely disclose waste, fraud and abuse,” Shanna Devine, the legislative director at the Government Accountability Project, told The Intercept.
But when Congress was debating the NDAA for fiscal year 2013, one group actually lost their protections: intelligence contractors. While the bill was sold as a win for contractors on the whole, continuing “the trend toward greater protection for whistleblowers,” it actually backtracked those rights for some.
Jesselyn Radack, a former ethics adviser to the Justice Department and attorney for several high-profile whistleblowers, told Mother Jones at the time that the bill showed “Obama is still giving whistleblowers baby pats on the head while screwing us on the other side.”
Nearly 50 organizations banded together to form the Make It Safe Coalition following the passage of the 2013 bill, and sent a letter to Congress asking lawmakers to “quickly restore whistleblower rights for government contractors who work in the intelligence community.”
McCaskill introduced a bill to bring back whistleblower protections in March. When she asked Director of National Intelligence James Clapper during a Senate hearing in September if the legislation should move forward, Clapper replied, “Absolutely, Senator,” saying “whistleblowers absolutely must be protected so they are induced or motivated to go within the channels, knowing that they’ll be protected.” But the bill hasn’t made it out of committee.