"No Right Without a Remedy": Why NSA Whistleblower Laws Are Lacking

Earlier this month Stephen M. Kohn, executive director of the National Whistleblower Center, attended a roundtable discussion with the National Security Agency (NSA) Inspector General (IG) Robert Storch. The meeting served as an avenue for the IG to hear comments on the NSA’s whistleblower program.

In attendance was Andrew Snowdon, NSA whistleblower coordinator and Office of the Inspector General (OIG) counsel, as well as representatives from the American Civil Liberties Union, Project on Government Oversight, and Government Accountability Project, among others.

When explaining his commitment to strengthening whistleblower protections in the NSA, the IG stated, “there is no right without a remedy.”

Unfortunately, as the NSA whistleblower law currently stands, rights are only nominal. The law provides neither statutory attorney fees nor judicial review of Agency decisions. Additionally, there is no authorization for back pay, lost wages, compensatory damages, or reinstatement for the whistleblower. This is unlike other federal agencies’ policies covered under the Whistleblower Protection Act (WPA). Intelligence community agencies are excluded from WPA jurisdiction.

“There are bare minimum requirements for a real whistleblower program,” said Mr. Kohn. “Working under the current law raises serious issues as to whether the whistleblower can ever be truly protected,” he continued.

Mr. Kohn suggested that when informing whistleblowers of their rights, the NSA should make clear that 1) contractor employees have protections under the False Claims Act and 2) that a proffer agreement could be available to them. This would send a clear message that the NSA is interested in obtaining information, not targeting informants. It could also open the door to a discussion about immunity from criminal prosecution, a status that would encourage more individuals to openly and honestly come forward with information.

Mr. Kohn also strongly urged the IG to conduct an organization-wide climate survey to better understand knowledge and attitudes toward whistleblowing. Once this baseline is established, the program can set-up indicators to measure improvement.

Without strong, internal channels for reporting information in the NSA, the agency is incentivizing individuals to stay silent about possible problems. This is a lose-lose situation. There is great potential for whistleblowers and the NSA to cooperate, if protected avenues were available for reporting.

The NSA’s weak whistleblower protections are unsurprising. The intelligence community at-large has historically viewed whistleblowers as a threat, rather than a potential partner. In the wake of massive 21st century information leaks (e.g. the Chelsea Manning and Edward Snowden leaks), the Obama Administration Executive Order 13587 established the Insider Threat Program, whose mission is to “promote the development of effective […] programs within departments and agencies to deter, detect, and mitigate actions by employees who may represent a threat to national security.”

The Insider Threat Program has most certainly had a chilling effect on whistleblowing activity in the intelligence community. A compounding effect on whistleblowing is the Trump Administration’s aggressive stance on “leakers.” Attorney General Jeff Sessions’ comments and subsequent memo on the topic leave little doubt that the Administration is seeking to curb, not broaden, whistleblower protections.

NSA Whistleblower Coordinator Snowdon stated during the roundtable that “it is part of our job to distinguish between the two. Sometimes it’s difficult to tell.” Given the climate of hostility toward “leakers,” it is critical that the NSA does not conflate leakers with whistleblowers.

If the NSA Inspector General truly intends to strengthen whistleblower protections, he should make a public statement and testify before Congress that the OIG is committed to protecting whistleblower rights, and that it supports legislation to bolster those protections. Until such remedial measures the NSA legal framework, NSA whistleblowers are without rights.