National Security Whistleblowers

The New York Times headline inspired retired Environmental Protection Agency staffer William Sanjour to write to the editor.

The headline read: “Whistle-Blower Did the Unexpected: She Returned to Work”

Why are you surprised that a whistle-blower went back to work?” he wrote in a letter posted Wednesday. “I was a whistle-blower at the Environmental Protection Agency and went back to work for 20 years and continued to blow the whistle, as did several of my whistle-blowing colleagues. That’s the law.”

The law he refers to is the Whistleblower Protection Act and Sanjour relied on it as a long-time critic of his own agency.

The Times story he refers to was about Tricia Newbold, a White House security office staffer. This weekend, she told Congressional investigators that senior White House officials overruled security staff and granted clearances to 25 employees.    
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Reality WinnerOn June 26th, National Security Agency (NSA) whistleblower Reality Winner pleaded guilty in federal court, agreeing to 63 months in prison in plea agreement for a single charge of espionage. Winner’s case has made national headlines throughout the past year after she was arrested in June 2017 for leaking NSA documents regarding a Russian hack in the 2016 election to a news outlet. Ms. Winner was arrested under the Espionage Act, a federal law that was created for spies, not whistleblowers.
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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. 
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Picture this: while at work you become aware of conduct that you believe is unethical, illegal, or qualifies as government waste, fraud, or abuse. You decide you want to blow the whistle. But before you act, be careful! Most corporate and government networks log traffic. Your work computer and phone are not private. When you use a company or department computer, assume everything you do is monitored. These computers are an easy way for your employer to determine you are the whistleblower.

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The White House announced today that President Obama commuted the prison sentence of whistleblower Chelsea Manning. Manning was convicted of stealing and disseminating government documents and videos to WikiLeaks.
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In a brief 3-page report dated September 15, 2016, the House Intelligence Committee concluded that Edward Snowden “was not a whistleblower” because there were “laws and regulations in effect at the time” that “afforded him protection” and he failed to exercise those whistleblower rights.  The Committee report specifically cited the Intelligence Community Whistleblower Protection Act of 1998 (IC WPA) that does permit employees, like Snowden, to make disclosures of wrongdoing to Congress if certain other conditions are met.
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Washington, D.C.  May 7, 2015.  The Second Circuit Court of Appeals ruled today that the National Security Agency’s (NSA) telephone metadata collection program, which gathers up millions of phone records on an ongoing daily basis, is illegal.

NSA whistleblower Edward Snowden first revealed documents confirming the illegal program’s existence in June of 2013.

The government

In January the U.S. Office of Special Counsel (OSC) proposed a rule that it claims would extend protections under the Civil Service Reform Act and the Whistleblower Protection Act to employees of federal contractors.  However, as my previous blog on this proposed rule stated, the unintended consequences of this rule may cause more harm than good for employees of federal contractors.

On Monday, March 23, the National Whistleblower Center (NWC) filed comments on the proposed rule. The submission by the NWC cautioned OSC stating “we believe that part of the proposed rule should be modified to ensure that employees of contractors are aware of their rights under the False Claims Act, and the part pertaining to disclosure of classified information should be withdrawn until further clarification about the use and handling of classified information is provided.”
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On January 22, the Sam Adams Associates for Integrity in Intelligence (Sam Adams) selected retired NSA Technical Director William “Bill” Binney to receive its 2015 award for integrity in intelligence. The award was presented  at a ceremony in Berlin, Germany.

As a 36-year intelligence agency veteran, William Binney resigned from the NSA in 2001 and became a whistleblower after discovering that elements of a data-monitoring program he had helped develop were being used to spy on Americans. Binney explained that he “could not stay after the NSA began purposefully violating the Constitution.”  
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Washington, D.C. January 22, 2015. Today the U.S. Office of Special Counsel (OSC) proposed a rule that it claims would extend protections under the Civil Service Reform Act and the Whistleblower Protection Act to employees of Federal contractors.  However, the unintended consequences of OSC’s proposed rule may cause more harm than good for employees of federal contractors.

This rule may cause confusion and interfere with other preexisting rights contractors have under other laws.  OSC should reconsider whether such a rule is even necessary given that employees of contractors already have stronger whistleblower protections under state and federal law than federal employees.  In any event, if the proposed rule is enacted it should be amended to make sure this confusion or weakening of other rights does not occur.    
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