Critics of leakers have often argued that whistleblowers have legitimate channels through which they can report their grievances, but in the murky world of intelligence, it’s hard to know how many complaints are filed, and what, if anything, happens as a result. Now, the House Permanent Select Committee on Intelligence says it sees “dozens” of such complaints every year.
The committee will not disclose details on individual cases, however.
“We receive whistleblower-type complaints both through the [Intelligence Community inspector general] — which includes complaints filed through the Intelligence Community Whistleblower Protection Act — and via individuals who approach the committee directly,” said Jack Langer, communications director for Committee Chair Rep. Devin Nunes, R-Calif. Those complaints number in the “dozens” each year, he added.
The legal process for whistleblowing has been at the center of renewed debate following public disclosures made by Edward Snowden in 2013. Snowden, who worked as an NSA contractor, insists he tried to raise complaints internally, but eventually gave up on the system, for fear of reprisal or dismissal.
Government officials have argued that various legal avenues were fully available to Snowden, and would have been a better option.
The House intelligence committee dropped a blistering three-page summary of its investigation into Snowden last week. In the report, the authors suggest the committee “routinely” receive complaints, and that Snowden’s failure to approach them nullifies his status as a legitimate whistleblower.
There isn’t, however, a public record of statistics on how many whistleblower complaints that Congress receives from the intelligence community; the Senate Intelligence Committee did not respond to request for comment.
The law provides for a “secure means” for intelligence community employees to raise an “urgent concern” to Congress, according to the Department of Defense inspector general. Employees can file a complaint through classified servers online or going directly to the committee; contractors can also file complaints, but they must be assigned to projects within the Defense Intelligence Agency, the National Security Agency, the National Reconnaissance Office, or the National Geospatial-Intelligence Agency.
Employees and contractors working for the Central Intelligence Agency are also covered by the law, but report to their own inspector general, or the Office of the Director of National Intelligence.
The complaint needs to be about something serious or flagrant — legal abuse, perjury, or an illegal action, and should “not include differences of opinion concerning public policy matters,” the Pentagon inspector general website reads.
“The majority of whistleblower complaints that are brought to the attention of the congressional intelligence committees are heard and addressed in relative obscurity,” Bradley Moss, a national security attorney who has represented whistleblowers, but is a critic of Snowden’s leaks, tells The Intercept. “This is arguably how the system was designed to work, as the complaints generally involve classified information and the process permits the complaint to be heard without exposing the information itself to unauthorized individuals.”
The official whistleblowing system “is by no means a perfect process, as protections against retaliation remain legally flawed,” Moss wrote in an email. “But it should surprise no one that there are numerous people who blow the whistle on things without raising a public stink about it.”
A separate but important question, however, is whether anything results from those complaints.
When asked whether these official channel grievances have led to any reforms, or whether those whistleblowers are retaliated against, Langer said he could not comment on individual cases, “though we take allegations of retaliation — both as the subject of a claim and following a claim — extremely seriously.”
However, Congress doesn’t have much legal power to protect intelligence community employees from such retaliation. The Pentagon’s inspector general website concedes Congress cannot “grant special statutory protection for intelligence community employees from reprisal for whistleblowing.”
In most cases of personal or professional retaliation, it ends up being the whistleblower’s problem, says Tom Devine, the legal director for the Government Accountability Project. “The problem is that whistleblowers making most complaints proceed at their own risk,” he said in an interview. “There are no independent due process protections for any intelligence community whistleblowers. And contractors don’t even have the right to an independent investigation unless there’s security clearance retaliation.”
Devine was referring to additional legal provisions for whistleblowers explained in Presidential Policy Directive 19, which created a system for informal independent inspector general investigations following intelligence community employees’ claims of retaliation.
Yet proving retaliation is difficult, even for employees not working for intelligence agencies.
The Department of Defense inspector general published the results of one investigation on Thursday, in which an employee working at the Defense Information School claimed he was retaliated against for reporting a coworker for mishandling personally sensitive information. The inspector general concluded the incidents were unrelated, though the subject still disagrees, according to the report.
Contractors, like Snowden, have even more limited protections; they are not protected against retaliation, except when it concerns the loss of their security clearance.
Even the intelligence community’s top lawyer, Bob Litt, told a room of national security attorneys in Novembers that it’s “complicated” to actually protect intelligence community contractors. “The government doesn’t straight out have the authority to say whether that person can be fired; that’s up to the contractor,” he said.
Meanwhile, whistleblower protection laws have rarely been used in practice. According to a report by the Office of the Director of National Intelligence, between 1999 and 2009, only 10 complaints or disclosures were filed under the law, and less than half were deemed credible by the inspector general.
Those safeguards used to exist, however. Congress in 2008 gave strong protections to all Department of Defense contractors, including the right to challenge retaliation after filing a complaint and launch actual legal proceedings to defend those rights. Those protections were stricken with no explanation from the National Defense Authorization Act in 2013. The director of national intelligence, James Clapper, has suggested in public testimony that renewing those protections is absolutely necessary — but attempts to salvage them in Congress have languished.
What remains unclear is whether employers are aware of complaints, making it possible to retaliate. Moss say companies normally don’t get involved when employees raise sensitive concerns to Congress.
However, none of the defense and intelligence contracting companies contacted by The Intercept — Booz Allen Hamilton, Northrup Grumman, Lockheed Martin, Raytheon, and several others — chose to comment on the issue. Northrup Grumman’s spokesman referred queries to the Department of Justice, which said it has no involvement in the issue.
While concrete numbers are hard to come by, Levine of the Government Accountability Project suggested he was surprised to hear how few complaints the House Intelligence Committee purportedly receives each year. “Almost every governmental institution receives dozens of complaints if not more. It actually sounds a little low to me,” he suggested. “It’s not unusual to complain to the government.”
His organization, which represents whistleblowers, “gets dozens of complaints every month.”