National Whistleblower Day

Over the weekend the Daily Beast reported on a leaked draft investigative report that exposed the systemic failures in the flawed intelligence community whistleblower program. According to this report, late last year the Trump Administration put a lid on the finalization of an investigation of the whistleblower program failures by the Inspector General for all intelligence agencies. 

However, the leaked draft report reveals that the intelligence community has utterly failed to protect whistleblowers who work for the intelligence agencies—including the CIA and the NSA—and report waste, fraud, abuse, or criminality to the Inspector General, or to Congress as permitted by law. These findings should be neither shocking nor surprising to anyone who has followed the intelligence community’s continual lack of interest in protecting whistleblowers.

What should be shocking and disturbing to every American is that the Trump Administration has tried to bury an investigation revealing that legal protections for intelligence community whistleblowers are really a hoax. The statistics from the suppressed draft report demonstrate a complete failure in the intelligence community whistleblower program.

Reportedly, the Offices of Inspector Generals at 6 intelligence agencies received 190 allegations of whistleblower reprisal from 2010 through 2016. However, of those 190 complaints, only 61 were investigated, and of those 57 were ruled “unsubstantiated.”

Even worse, the Daily Beast further reports that:  “In the entire batch of 190 cases, only once did an OIG find in favor of the whistleblower. That was in a DIA case that took 742 days to complete. Other cases remained open longer. One complaint from 2010 was still waiting for a ruling.”

That’s right. Only one whistleblower prevailed out of 190 cases filed in six years.  That’s a success rate of about 0.05%.

There are three takeaways from this startling failure.

First, the intelligence community whistleblower program was created by President Obama after he broke his promise to support full due process rights for all federal employees, including access to courts and jury trials. The National Whistleblower Center predicted this program would fail because putting the agencies in charge of deciding whistleblower claims, without allowing employees to file in court and seek a jury trial, inevitably results in the agency denying any wrongdoing or reprisal. Everyone knew long ago that whistleblowers can’t win when there is no outside review of reprisal claims by courts and juries. It’s even worse when the intelligence agency that fired the whistleblower has final say in the case.

Second, the Trump administration has created an even bigger scandal by trying to suppress the investigation into the obvious failures of the intelligence community whistleblower program. On the one hand, President Trump talks a good game about the “Deep State” (i.e., the intelligence agencies and the FBI) being out to get him. But, on the other hand, here is a chance for Trump to actually do something to hold the intelligence community accountable and his administration is caught suppressing the investigative report that proves a systematic failure is crushing intelligence agency whistleblowers.

Third, there is a way out of this distressing place. If Trump really wanted to hold the so-called “Deep State” accountable he should join good government reformers in Congress and support real whistleblower reform.  While the intelligence community has repeatedly opposed legislation to provide real due process rights for all federal employees, including intelligence community whistleblowers, that very reform passed the House in 2009 with strong bipartisan support, including a majority of Republicans voting in favor.

In July 2009, a number of leading national security whistleblowers urged Obama to keep his campaign promise to support passage of full rights for intelligence community whistleblowers and all federal employees. As I pointed out in my 2009 testimony before the House Committee on Oversight and Government reform, in 1996 the GAO independently determined that letting intelligence community employees take legal claims to courts and juries did not risk revealing national security secrets because the courts were equipped to handle classified information. However, the intelligence community has defeated every effort to strengthen whistleblower protection and its influence over members of Congress to kill whistleblower reform is legendary.

Now that the weaker whistleblower program that the intelligence community wanted has proven to be a disaster, it is time for Congress and Trump to support the real reform that would provide full due process rights, with access to courts and juries, for all federal whistleblowers.