At President Obama’s news conference Friday, he gave the impression that his executive order could have protected Edward Snowden against retaliation for disclosing sensitive information had the government contractor just done it the right way.
That’s not quite correct.
Snowden is taking refuge in Russia after leaking secrets about the U.S. government’s massive collection of telephone and other information about Americans and foreigners. He faces prosecution if Uncle Sam can ever get him.
Here’s what the president said: “So the fact is, is that Mr. Snowden has been charged with three felonies. . . . If the concern was that somehow this was the only way to get this information out to the public, I signed an executive order well before Mr. Snowden leaked this information that provided whistleblower protection to the intelligence community — for the first time. So there were other avenues available for somebody whose conscience was stirred and thought that they needed to question government actions.”
Here’s the problem: The document Obama signed, a presidential policy directive, PPD-19, does not cover government contractors. Snowden once was employed by the CIA, but he was working for Booz Allen Hamilton — a private firm with a National Security Agency contract — when he released details of the massive surveillance program to The Washington Post and the Guardian in Britain.
If you parse Obama’s comments finely enough, each sentence is true. Yet, he clearly implied Snowden was protected by an executive order. That’s not true, say experts in the field. (It also was a presidential directive, instead of an executive order, but they have the same impact, so there’s no point quibbling.)
Obama “badly misled the American people,” said Stephen M. Kohn, executive director of the National Whistleblowers Center.
There are thousands upon thousands of federal contractors who have security clearances but relatively little protection if they disclose waste, fraud or abuse in government programs. Retaliation by supervisors against whistleblowers is real in Uncle Sam’s operations, as Obama’s policy directive indicates.
But that directive covers only “any employee serving in an Intelligence Community Element.” The operative word here is “employee.”
Furthermore, added Kohn, “none of the procedures were effective at the time” of Snowden’s disclosures, which first appeared in June. The policy directive said administrative actions to implement it were to have happened within 270 days — that’s nine months — from the date the PPD was issued Oct. 10. That would have been in July.
Whistleblower advocates said they have seen no signs that the directive is being enforced.
When asked if the directive has been implemented, the White House did not answer. But it contends that contractors do have whistleblower protections.
Although contractors are not mentioned in the policy directive, White House spokesman Eric Schultz said, “The president’s recent directive provided unprecedented and widely praised protection to whistleblowers in the intelligence agencies. It also provided a road map to guide those agencies as they devise specific policies to implement the president’s directive. Other federal laws specifically referenced in the directive prohibit retaliation against federal contractors. The bottom line is that Mr. Snowden could have lawfully raised his concerns without making unauthorized disclosures.”
Nonetheless, excluding contractors from the PPD’s text “is a remarkable and obviously intentional oversight, given the significant number of contractors who now work within the intelligence community,” said Mark Zaid, a Washington lawyer who represents national security whistleblowers. “This is a gap that desperately needs to be closed, as I often have contractors coming to me with whistleblower-type concerns and they are the least protected of them all.”
Workers, in this case contractors, staffing programs crucial to the safety and security of the nation have few protections against retaliation if they decide to report abuse of those programs.
“They are a workforce of people with whom we entrust our nation’s deepest secrets, but give them no protections if they want to disclose wrongdoing,” said Danielle Brian, executive director of the Project on Government Oversight.
The White House disagrees.
Yet, the “other avenues” Obama mentioned are filled with dangerous detours, according to whistleblower advocates.
Tom Devine, legal director of the Government Accountability Project, a whistleblower advocacy organization, lists one client after another “who tried to work within proper channels,” spending “countless hours” with inspector general offices in the NSA and the Defense Department.
The result? Devine said the Justice Department considered the clients to be leak suspects and “all then endured daybreak FBI raids in which 10 to 20 agents terrorized their families, ransacked their homes and seized property that still hasn’t been returned.”
Still, Zaid said he has his clients “go through the motions to cover all bases so that we could say, ‘We tried.’ ”
What result could Snowden have expected had he covered the bases and his butt by approaching an inspector general’s office or congressional committees?
“Candidly,” Zaid said, “he likely would have been frustrated immensely with the lack of results from either, given the current posture.”
Previous columns by Joe Davidson are available at wapo.st/JoeDavidson.