Whistleblowing with a Security Clearance
Many people believe that there is catch-all protection available for whistleblowers. In fact, whistleblowers are protected from retaliation in only very narrow and limited circumstances. Whistleblowers with security clearances are at greater risk for greater consequences. In many cases, the loss of security clearance can result in the loss of a job. Whether or not a whistleblowers clearance is protected depends on a variety of complex factors. If you believe you have a claim, you should contact a lawyer.
What protection do government employees with security clearances have?
The loss of a security clearance can have detrimental consequences on a person’s career. In most cases it will even result in the loss of a job. This is one of the greatest risks facing whistleblowers who have a security clearance. In the past, the Supreme Court has issued opinions making it ok for the issuing agency to revoke a clearance without stating why they are doing so. In fact, only minimal due process is required when an agency revokes a security clearance. Therefore, this remains a major vulnerability in the law.
Intelligence Community Whistleblowers
The Whistleblower Protection Act does not extend to members of the Intelligence Community. However, there have been a number of steps taken to afford employees with security clearances some protection.
In 2012, President Obama issued Presidential Policy Directive 19 in order to help facilitate whistleblowing while protecting sensitive national security information. The directive applies to members of the Intelligence Community but it doesn’t protect against public disclosure. PPD-19 provides for employees to report to their supervisors and eventually to the Congressional Intelligence Committees only. Additionally, the directive does not apply to armed services personnel in most cases. PPD-19 extends to complaints about fraud, waste and abuse.
Intelligence Community whistleblowers are also protected by the Intelligence Community Whistleblower Protection Act (ICWPA). This act only applies to employees who are members of the Intelligence Community. The act allows employees who report urgent concerns about classified information to Congress certain protections. Generally, when an employee intends to report a problem to Congress they should first report the problem to the Inspector General. The employee should report to Congress only by approved security clearance means and only to members of either the Permanent Select Committee on Intelligence of the House of Representatives or the Select Committee on Intelligence of the Senate. 5 USCS Appx 8H.
Another consideration for potential whistleblowers is that disclosure of national security sensitive information may still lead to criminal prosecution even where adverse personnel actions are not allowed.
How are employees of Government Contractors with Security Clearances protected?
Government contractor employees are often in an even more difficult position than government employees with security clearances. There remains some debate as to whether PPD-19 is applicable to government contractors but if it does it is questionable who they should report to seeing as their supervisors are not necessarily members of an agency covered.
The ICWPA covers contractors to the NSA, CIA, DIA, NGA, NRO, or FBI. However, these employees are only covered if the President has declared them to be operating primarily in the area of intelligence or counterintelligence gathering. Government contractors should file complaints with the Inspector General of the appropriate agency. Disclosures made to the public or any other agency are not covered. 5 USCS Appx 8H.
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