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.
As a contractor, if your client a “military person or Government employee” doesn’t like you, complains or says get rid of some and so. The contractor is GONE. There is no debate. The person representing Government also says if the contractor company “plays ball” in regards to bending over and doing what they’re told.
Obama is a dark knight when it comes to intelligence and secrecy! He is not quite as evil as Hillary or he would have already had Snowden killed. Hillary, the bitch, Clinton will have no compunction towards those who thwart her.
Yeah, he’s a real hero of mine for not murdering Ed. Hooray for that guy who’s prez…
Hillary is all piss and wind. If she gets voted in there is no way on Earth she can command the men really running the show. She is no Thatcher, the Iron Lady, she is more Snatcher, the Screeching Harpy.
Contrary to popular belief, whistleblowers get screwed most of the time. If they work for/in govt. it’s almost guaranteed. Their lives are destroyed by endless litigation, frozen assets, scrutiny of all aspects of their lives. Most of the protections actually protect the concept but not the individual. Usually after the “blow”, the persons mental health is questioned. After all if they are “mental”, how are they to be believed? Then it goes from there, finances, mates, friends , are all discredited. Motive? etc. There is a good book about this by C. Fred Alford that goes into the whole system, a very good read! After all, how can one “blow” on illegal activity if it’s illegal to do so? So Hillary telling Eric Snowden to come home is a total joke, and he is a hero! I just saw a person on TV talking about Chelsie/Bradly Manning and thoroughly ripping on her security clearance. After all she got 35 years and was held with no rights before her court marshal. Blowers rarely win out, the only ones ever talked about are the good outcomes which are rare indeed.
Whistleblowers NEVER win. Outside of the security industries where obviously the penalties are insanely severe a whistleblower will lose their careers in their industry sectors by blowing. Even if they are successful they will be marked as a tell-tale and do-gooder and their career will falter and die. Seen it happen in the Finance sector.
I think you’re forgetting that they’re not above (below) debasing whistleblowers too or making up evidence or making them look like spies/traitors/crazy people/et al. Only the LUCKY ones only get to lose their careers and get marked as a ‘tell-tale do-gooder’. I’m not talking about the borderline conspiracy nutters, either, ZeusEtAl: A number of journalists and scientists have not only had their careers ruined but have had their lives left in shambles. It’s harder to dig these stories up (and I’m not talking about “targeted individuals” either, or visitors of ‘fringe sites’ or believers in perhaps questionable theories) especially in the scientific industries — a lot of ‘commissioned studies’ with ‘unliked results’ have hurt peoples’ careers, as well. I’ve been thinking it might be a rather interesting idea to write a book about the effects whistleblowing has on wider aspects of peoples’ lives. Hatfield, Jewell, et al, that journalist during the Contra affair, and several dozens of others have had their lives ruined by whistleblowing investigations and coverups alone — in a way Ed Snowden, Chelsea Manning and the like got off ‘easily’ (I use this term with no small amount of scorn). Snowden was dubbed a Russian spy, Manning was dubbed a mentally ill transsexual, and so on… but the ones in the public eye often also get supporters. I’m not saying if I were a whistleblower I’d want to be in the public eye OR not in the public eye — but I think we underestimate the (a) number of whistleblowers that exist and (b) underestimate the damages simply because places like the MSM so rarely cover them (or know about them or have interest in making anyone know about them — or get paid off to not cover them (even with families fighting steadfastly to clear the names of their loved ones (see the LSD experiments during MKULTRA, followed by a ‘fall’ out a hotel window — website by family still, I believe, fully available via a quick websearch).
I think you’re also giving too much credit to most of the world for calling whistleblowers ‘do-gooders’. A lot more of them are deemed anything but.
Seen it happen in most sectors (including finance in the 90s, too — perhaps we’re thinking of some of the same cases — you’re a writer too, yes? Might be an interesting idea to compare some case notes and maybe come up with a running list/blog to flesh out into something like a book?).
BTW, man, you are one verbose dude.
Nothing is complicated when you’re not accountable or responsible for delivering anything except tomorrow’s copy. Journalists take note.
Hear Hear!
Journalists get to sing their twittering songs and fly away.
That’s like saying “dismantling the US government and building a new democratic model need not be complicated”.
Sure, if no one with enormous power, a huge and well-armed military and police, a complete disregard for the sanctity of life, and a total desire to spy on and control every human being on the planet is determined to resist, it will be a piece of cake! They may even give out little whistles with a knowing wink and a “Go right ahead and give it a blow anytime!” But not like Monica Lewinski. That was a suck.
Face it, Jenna, you won’t get a better-paid job as a jounralist somewhere else when you are more grown up by sort of hedging a bit on these sort of sensitive stories so that maybe, you know, like, that Hillary and Hayden and co aren’t mad at you, like, because you never, like, said, like, anything hurtful or controvertial, right? You are at THE INTERCEPT, more commonly known as Glenn Greenwald’s Treacherous & Unpatriotic Propaganda Rag by everyone else in the uncivilized world of America.
In for a penny, in for a pound.
Something more along the lines of “Giving Intelligence Contractors Whistleblower Protection is about as likely as God coming down from Heaven and sorting this unholy fucking mess out as whistleblowing and questioning superiors is about as Anathema to the Intel agencies and government as, well, nothing else actually. It is Numero Uno in The Things We Most Hate Round Here. We tell more secrets to the Russians and Chinese than we ever let these people even come close to farting in code to their mothers. We only use contractors BECAUSE they have less rights and are easier to abuse and throw into the pits of Hell if they even suggest blowing their nose, let alone a whistle. In fact, we’ve banned them from looking at pictures of actual whistles and even owning a referee’s whistle, that’s how paranoid we are about it”.
I only say this because Glenn Greenwald is constantly saying journalists need to be honest and know their facts.
“THE INTERCEPT, more commonly known as Glenn Greenwald’s Treacherous & Unpatriotic Propaganda Rag by everyone else in the uncivilized world of America.”
Um, actually NOT known as such by “everyone else”. Just you.
I don’t think it is treacherous at all, I think it great. It is a joke name, silly girl, you kind of missed the point and have not read anything else I have written.
I think the time has passed for neutrality and hiding behind a journalist badge. These are all human constructs, not written in stone by the gods. America is threatening the freedom of the entire world by controling the internet, assassinating at will, deploying its armies across the globe, and creating havoc and discord.
America has TRILLIONS of dollars of oil it can now exploit and its current regime WILL STOP AT NOTHING to get that. The first move is to destroy Russian-supporting OPEC countries and threaten the rest and get the price of oil back up into a profitable state.
If it is successful it will destroy the American heartland by fracking its fresh water into oblivion, so it now has a police force capable of silencing resistance back home.
It is TIME TO STOP IT, not write bullshitty articles as part of a career in journalism.
I have watched on YouTube the American and British media trying to tear Glenn apart, he is not a popular figure with the powers-that-be and neither is The Intercept.
I recently watched Jenna’s interview with Elliott Hill for LipTV and both he and I were rather incredulous at her “maybe”ing and hedge-sitting on some rather obvious facts, and I feel she is doing this to avoid offending the powers-that-be rather than for journalistic neutrality, which are different things. If for example America assassinates someone with a drone, you can’t report it as “maybe the US” to be neutral, but you can to suck up and avoid angering the Masters of the Universe.
I think she is doing that here by not directly saying there is no chance the NSA and their political allies would ever make whistleblowing easy on their watch. She avoids challenging those in power by putting forward a harmless hypothesis dressed up as a realistic suggestion against their entrenched stance.
Whistleblower laws are just another unenforceable law that lawyers are afraid to tackle. Whistleblowers are targeted; their livelihood, credibility and lives are destroyed by the corporations and government they try to expose. I’m a Army veteran, whistleblower, targeted individual. I am stalked/ harassed 24/7, blacklisted, fired, my residents illegally entered, evidence stolen, my VA medical card stolen, personal items tampered with and vandalised. This is what happens to whistleblowers in America that expose government, corporate and law enforcement corruption.
It gets worse Rick.
@ Phill Ferro
Phil Ferro
Nov. 6 2015, 4:43 p.m.
Of course whistleblower protection is complicated because the BAR Association is the most dangerous to our rights! They want everything complicated because BAR members make their living on people’s complications.
_>Hi Phil! That is one of the good reasons why the protection of whilstleblowers is comlicated. There are far more. Too numerous to list. You think we will ever see a flat tax system…. even if it were a high flat tax? Not happening even if the 99 pay 70% flat tax. You must keep in mid the tax system is far more an issue on the corporate side. Very large and wealthy corps avoiding $90B/ year paints a negative picture of Ameri-INC-certainly not a Rockwell.
U.S.A. is also not going to stop spying on everyone, none of the other branches of government will intervene, the temporary programs to keep the moronic civilians in check will eventuall fail, nor will the congress ever demand or receive an honesty, and eventually the USA.
Of course whistleblower protection is complicated because the BAR Association is the most dangerous to our rights! They want everything complicated because BAR members make their living on people’s complications.
@rrheard-Let’s hear more bullshit you BAR jock sniffer…..