President-elect Donald Trump’s advisers want him to take on government bureaucracy the same way he approached his reality show: cut the fat and fire more federal employees.
Civil service laws were written to prevent freewheeling firing sprees and to protect federal employees’ rights, though many complain it prevents speedy removal of ineffective workers, creating the “forever” government bureaucrat. However, large segments of the intelligence community, including DIA, CIA, NSA, and most of the FBI are not entitled to these same protections, and some attorneys who represent those employees are particularly concerned.
“[Intelligence community] employees have little protection,” wrote Mark Zaid, an attorney who often represents members of the national security and intelligence spheres, in a tweet. He noted that some clients, blowing off steam and making dark jokes, threatened to leave the U.S. to hand over secrets to agents of foreign powers “because of mistreatment.”
While those conversations are “total rants,” it’s “common” to hear it, he said in a message to The Intercept. “I presume I talked them out of it,” he joked.
But that doesn’t make the tension and fear for job security less palpable. “It’s a significant concern,” he said.
Congress crafted the laws — including the Civil Service Reform Act of 1978, and other federal regulations — so that the intelligence chiefs could have flexibility in firing, to protect national security interests and maintain flexibility. Kel McClanahan, a national security attorney, says the intelligence community made a big push to Congress to retain their power to fire people by using the “national security” card.
The agencies’ message to lawmakers was, “Oh my god, national security, we wouldn’t want to jeopardize national security. … You couldn’t possibly understand the nuances of something vital like national security,” McClanahan said during a phone interview. “They got themselves exempted … because they could.”
While those exemptions might help national security officers move quickly — to replace a poorly performing employee — it gives the top spies broad powers to fire at will, and personnel have few rights to challenge it. That system, which allows intelligence community employees to be terminated quickly and without challenge, has been in place “for many years,” Zaid wrote. “The question is whether it will be utilized” even more under the new administration.
The range of cases involving intelligence officers being fired for unknown or arbitrary reasons is wide. In 2009, a Defense Intelligence Agency intelligence analyst was stripped of his security clearance without being told why. Though he eventually won a settlement in court, he did not get his security clearance back. A gay CIA employee was fired in 1988, and only won redress after the Supreme Court decided he had the right to challenge the issue on constitutional grounds, rather than procedural.
The broad latitude of the intelligence agencies to make personnel decisions is often at issue in whistleblower cases, including in Weber v. United States — a 2000 court case involving an Army engineer who lost his clearance and subsequently his job after alleging Army helicopters weren’t being equipped with proper protective gear. Human rights groups have consistently complained there are very few whistleblower protections for the intelligence community, especially its contractors, who make up a large segment of the work force.
Some employees of the Department of Defense and veterans have special rights to challenge negative personnel decisions in front of an additional review board, though that doesn’t guarantee you’ll be successful. John Parkinson, an Iraq War veteran who went through a contentious firing from the FBI after raising whistleblower complaints about his coworkers’ alleged sexual misconduct, has been fighting his removal in court for nearly a decade.
“For decades, large portions of the intelligence community have already lived under the threat of being fired at a moment’s notice,” wrote Brad Moss, another national security attorney who often represents whistleblowers, in a message to The Intercept. “Petty grievances, personality clashes, and bureaucratic turf wars are all part of the culture that permeates this flawed legal set up.”
If Trump expands those conditions to the rest of the federal government, he’s going to have a hard time building a workforce, Moss argues. “To pull back existing protections for the rest of the federal work force for no other reason than to puff out your chest is not going to make the federal government more efficient.”
McClanahan, however, offered a slightly different perspective on a Trump presidency’s possible use of pink slips. “He campaigned on the idea of running the government like a normal person,” he said. “If he stays true to that idea,” reform might be possible so that all federal agencies have the same workers’ rights.
But, even if not, he still thinks it’s more likely Trump would go after the heads of agencies rather than the worker bees, putting the impetus on the powerful to comply with Trump’s wishes. “If you get someone like Mr. Trump, who will fire people just for disagreeing with him, you might find the bureaucracy gets more responsive,” he said. “I’m waiting for the first agency to not do what he wants. If there is a head that gets chopped off for something minor, an agency head that gets canned, … then all the sudden the game as we know it is fundamentally different.”