Should contractors do national security work?

Joe Davidson
Columnist June 11, 2013

There are a ton of important questions raised by the national security disclosures leaked to The Washington Post and the Guardian news organizations by Edward Snowden.

Here’s one more: Should a contractor, paid by a private company, have access to the kind of top-secret information he leaked?

Joe Davidson writes the Federal Diary, a column about the federal workplace that celebrated its 80th birthday in November 2012. View Archive

Snowden worked for the Booz Allen Hamilton consulting firm when he disclosed information about government surveillance programs — programs that he and many others feel are an abuse of power.

Valid questions about the surveillance operations and over-classification of information aside for the moment, the release of certain national security intelligence — no matter how noble the motivation, no matter how important the cause — is against the law. Snowden knows he will have a price to pay.

Beyond his actions is a debate that has long simmered within the federal government. At the center of this debate is the definition of an “inherently governmental function.”

Bureaucratic speak, but it gets to fundamental questions: Should contractors do sensitive government work? If government surveillance is not inherently governmental, then what is?

“I, sitting in my desk, certainly had the authorities to wiretap anyone from you or your accountant to a federal judge to even the president, if I had a personal e-mail,” Snowden told the Guardian in a video interview.

Should any one person have that much power, particularly one not employed by the federal government?

In an attempt to clarify what inherently governmental means, the Office of Management and Budget issued guidance in 2011 that said: “The FAIR [Federal Activities Inventory Reform] Act defines an activity as inherently governmental when it is so intimately related to the public interest as to mandate performance by Federal employees.”

Federal employee unions have long argued too many contractors are doing work meeting that definition.

Snowden’s case “is yet another example of why outsourcing our national security to mercenary rent-a-cops is a bad idea,” said Lee Stone, a vice president of the International Federation of Professional and Technical Engineers. It represents many federal employees with security clearances, including some in the Defense Department.

“Contract personnel by definition are not employed by the federal government but rather by a company,” he added, “generally a for-profit corporation that answers primarily to its shareholders.”

Also, contractors don’t take the oath of office to “support and defend the Constitution of the United States,” as do federal employees, from the president to the lowest-paid civil servant.

“But it is wrong to state, or even assume, that all things ‘national security’ are, by definition, inherently governmental functions that must be performed exclusively by federal employees,” said Alan Chvotkin, executive vice president and counsel of the Professional Services Council, an association of government contractors. “Most national security functions do not involve government decision-making and can properly and appropriately be performed by contractor employees.”

The “best evidence” of that, he said, is the number of contractors doing classified work, but that data also support the union case that there are too many contractors in sensitive positions.

A report from the Office of the Director of National Intelligence indicates that more than 1 million contractors hold security clearances, though not all of them do secret work full time, in addition to 3.5 million employees.

That’s a lot of people to keep secrets. Maybe too many people for too many secrets.

Jeff Ruch, executive director of Public Employees for Environmental Responsibility, is one who believes government keeps too much information secret, making it “technically off-limits to the tax-paying public.”

Is it ever appropriate for government workers to disclose national security secrets?

Yes, said Ruch, explaining that one situation would be “where the material is improperly classified in order to cover up embarrassing but not truly compromising information.”

Jon Adler, president of the Federal Law Enforcement Officers Association, also said yes, “if they become aware of a corrupt unlawful practice and their knowledge is firsthand and not derivative of the scribble on a bathroom wall.”

But if workers disclose secrets, they risk big trouble.

“Maintaining a security clearance requires both government employees and contractors to uphold the law by not disclosing classified information at any level to anyone who does not hold the appropriate level of clearance to have knowledge of such information and is on a need to know,” said Joanna Friedman, a lawyer with the Tully Rinckey law firm. She represents intelligence agency employees. “Additionally, there is a public safety exception, which is likely the factor applicable” in Snowden’s case.

But even if a worker thinks release of certain information is best for public safety or in the public interest, “individual bureaucrats don’t get to decide what the law should be,” said Donald F. Kettl, dean of the University of Maryland’s School of Public Policy. “If they try to do so, they are prosecuted.”

Whistleblower advocates, like Angela Canterbury of the Project on Government Oversight, “encourage insiders with information about abuses of power and wrongdoing to consider the safe, legal channels available for disclosures, but sometimes there aren’t any.”

In those cases, she added, “sometimes public disclosures are the only option.”

Twitter: @JoeDavidsonWP

Previous columns by Joe Davidson are available at wapo.st/JoeDavidson.

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