“I had reported these clearly problematic programs to more than 10 distinct officials, none of whom took any action to address them. As an employee of a private company rather than a direct employee of the U.S. government, I was not protected by U.S. whistleblower laws, and I would not have been protected from retaliation and legal sanction for revealing classified information about lawbreaking in accordance with the recommended process.
“It is important to remember that this legal dilemma did not occur by mistake. U.S. whistleblower reform laws were passed as recently as 2012, with the U.S. Whistleblower Protection Enhancement Act, but they specifically chose to exclude intelligence agencies from being covered by the statute. President Obama also reformed a key executive whistleblower regulation with his 2012 Presidential Policy Directive 19, but it exempted intelligence community contractors such as myself. The result was that individuals like me were left with no proper channels.”
— Former National Security Agency contractor Edward Snowden, in testimony submitted to the European Parliament, released March 7, 2014
A reader wondered about these claims by NSA leaker Edward Snowden, given that President Obama has said that Snowden had “other avenues” to get information out. Obama, at an August news conference, specifically said that “I signed an executive order well before Mr. Snowden leaked this information that provided whistleblower protection to the intelligence community — for the first time.”
The reader requested a fact check of Snowden’s repeated assertion that, as a contractor, he was not entitled to the protections of the various whistleblower statutes. “It would be useful in forming an opinion about Mr. Snowden to know whether his assertion is accurate,” the reader wrote.
Obviously, The Washington Post has reported extensively on the top-secret documents that Snowden disclosed, as our colleague Barton Gellman was one of the original recipients who brought them to light.
This involves legal issues, so it can get complicated — and it is open to interpretation. There also is the question of how it works in theory, and in practice.
First, while most federal workers fall under the Whistleblower Protection Act of 1989, there is a separate law called the Intelligence Community Whistleblower Protection Act, but it is generally regarded as fairly weak. It allows for national-security whistleblowers to release classified information to an inspector general or member of a congressional intelligence committee, but actually does not protect whistleblowers from retaliation, legal experts said.
Indeed, Thomas Drake, who was a senior executive at the NSA and followed the rule book in terms of reporting abuse to Congress, actually faced prosecution, though eventually the original 10 felony counts were dropped. He eventually pleaded to a misdemeanor but served no jail time.
At about the time Obama signed the Whistleblower Protection Enhancement Act of 2012, which revised the 1989 law, he also issued the document that both Snowden and Obama cited — Presidential Policy Directive 19 — that is designed to protect whistleblowers with access to classified information. Section A of the PPD specifically prohibits retaliation, and Section B prohibits retaliation by taking away an employee’s access to classified information.
The PPD includes a number of definitions but never defines the word “employee.” But does that mean it specifically exempted “contractors,” as Snowden says?
As it happens, Dan Meyer, the person responsible for coordinating policy regarding PPD19 in the intelligence community, recently offered his own interpretation regarding its impact on contractors. On Feb. 25, he spoke at Georgetown University’s Center of National Security and the Law, and we were directed to his remarks by Elizabeth (Liza) Goitein, co-director of the liberty and national security program at New York University’s School of Law.
The relevant part starts at the 40-minute mark. Here’s what Meyer said, stressing that he was offering his own interpretation:
Section B covers security clearances, all agencies that have security clearances throughout the government, not just the intelligence community. And if you read the executive order cited in Section B, it covers contractors. So, until someone tells me otherwise, contractors are covered under section B of PPB19…. Section A is where those people [major whistleblowers] are, who come forward on very important issues. You only have two or three of those a year; you have a lot of work to do. So under Section A, there is no executive order referenced in there that would allow me to go to find a contractor provision. So right now I am looking at Section A, and until we get the guidance from DNI [Director National Intelligence] policy staff, which will be coming out shortly, I don’t see contractor protection under Section A. But what I do see under Section A is a pretty robust section for doing IC [intelligence community] investigations.
Meyer went on to note that “even if you do get coverage under something like Section A, and there could be action in the next couple of months that could do something like that, the challenge becomes how do you get the remedy” for alleged retaliation, especially when dealing with a corporate entity.
Robert Turner, associate director at the center for national security law at the University of Virginia School of Law, believes that as a practical matter, Snowden should have gone to oversight committees or the inspector general without much fear of retaliation. “I am very confident that had he gone to the Hill committees or the NSA or DOD or ODNI IGs, it would have been difficult for anyone to engage in retribution against him without considerable personal cost,” he said. “I can’t imagine that there is anyone in a senior position in D.C. dealing with the Intelligence Community who does not understand that Congress would be outraged if it learned of retaliation against a legitimate whistleblower.”
The Pinocchio Test
We told you it was complicated. Based on Meyer’s interpretation — and he should know — Snowden is incorrect that contractors were specifically exempted under PPD19, since at least Section B would seem to apply. But Section A — which protects against retaliation — does not appear to cover contractors. Drake’s experience is certainly a cautionary tale for any would-be whistleblower in the intelligence realm.
In the end, we are going to award Snowden a single Pinocchio, but it’s more like ½. He cannot quite make the blanket claim that there are no protections for contractors, but he may have been correct in believing that there appear to be no clear protections, especially from retaliation.
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