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.

Continue Reading “No Right Without a Remedy”: Why NSA Whistleblower Protections Are Lacking

Washington, D.C.  January 21, 2015.  Today the U.S. Supreme Court ruled that former Air Marshall Robert MacLean was not “specifically prohibited by law” from disclosing information to the press about TSA’s plan to cutback on the number of air marshals during a terrorist alert.  Such a disclosure was against agency regulations.

The Whistleblower Protection Act prohibits individuals in positions of authority from taking a “personnel action” against a government employee when the employee makes a disclosure, which the employee reasonable believes to evidence a “substantial and specific danger to public health and safety, if such disclosure is not specifically prohibited by law.”     Continue Reading TSA Whistleblower Wins At Supreme Court

Yesterday the Supreme Court heard oral arguments in Department of Homeland Security v. MacLean.  This case arises under the Whistleblower Protection Act. The Whistleblower Protection Act prohibits individuals in positions of authority from taking a “personnel action” against a government employee when the employee makes a disclosure, which the employee reasonable believes to evidence a “substantial and specific danger to public health and safety, if such disclosure is not specifically prohibited by law.”  The issue before the Court is when a federal statute bars whistleblower from making disclosures that are “specifically prohibited by law,” does this bar also apply to disclosures prohibited by agency regulations?

Continue Reading Supreme Court Hears Arguments in TSA Whistleblower Case

New intelligence community whistleblower protections lacking

On July 7, 2014, President Obama signed the “Intelligence Authorization Act for Fiscal Year 2014.” This bill includes a section providing “Protection Of Intelligence Community Whistleblowers.” These protections specify that employees who divulge information about possible misconduct within their agencies to their Inspectors General or other designated intelligence offices will be protected.

Stephen M. Kohn, Executive Director of the National Whistleblowers Center released a statement urging intelligence agency whistleblowers to use these new protections with caution:

 “The whistleblower provisions passed in the Intelligence Authorization Act are a very small step forward. They are weak and essentially unenforceable. The provisions empower the President to exercise his discretion in determining the procedures to protect whistleblowers.  None of the protections mandated by the Whistleblower Protection Act (which covers other federal employees) are included. There is no provision permitting discovery or hearings, let along judicial review. The law does not ensure due process or even stipulate the remedies for which whistleblowers would be entitled if they were to miraculously prevail in a case.  The law does not provide for attorney fees to be paid to prevailing whistleblowers, who could go broke just trying to report fraud in government programs.”

 “Due to the lack of procedural protections, the law could easily morph into a bureaucratic trap leaving whistleblowers vulnerable and unemployed.  The law needs to be amended to have some teeth. In the meantime, we advise whistleblowers to use these new provisions with extreme caution, if at all.”

 It should also be noted that the new provisions do not cover intelligence agency contractors.

Washington, D.C. January 17, 2014. Today President Obama gave a much anticipated speech in which he addressed the National Security reforms his administration will put in place.  The reforms he identified are woefully shortsighted with regard to providing protection for National Security whistleblowers.  President Obama acknowledged the potential abuse that can arise from the NSA surveillance programs, citing the illegal surveillance of civil rights leader Dr. King.  However, he offered no meaningful way for patriotic whistleblowers to bring forward concerns and abuses taking place out of pubic view.  

The President of the National Whistleblower Center, Michael D. Kohn issued the following statement regarding President Obama’s reforms:

“Until President Obama recognizes the critical and essential role whistleblowers play in keeping us safe from illegal invasions of privacy and civil liberties, the changes to the programs under consideration are nothing more than short-term widow dressing.  

It is time that the President and Congress step up to the plate and work with the National Whistleblower Center and other public interest organizations to forge a framework that provides national security whistleblowers a meaningful avenue to air concerns and cure retaliation.  Congress and the President must do their jobs, and stop destroying the lives of civil servants who try to report misconduct. A free and open society deserves nothing less.”

There is significant historical precedent for the protection of whistleblowers demonstrating that such protections were strongly supported by the Founding Fathers. NWC Executive Director, Stephen Kohn, previously discussed this precedent in his New York Times Op-Ed, The Whistleblowers of 1777. Mr. Kohn is also the author of The Whistleblower’s Handbook: A Step by Step Guide to Doing What’s Right and Protecting Yourself  (Lyons Press, 2011). 

The National Whistleblower Center’s position on President Obama’s “Policy Directive" on National Security Whistleblowers is linked here.  

Presidential Policy Directive 19 is a Directive that creates administrative procedures “protecting” employee-whistleblowers who work for U.S. intelligence agencies, including the NSA, CIA, DNI and the Defense Intelligence Agency. When first announced by President Obama in late 2012, the Directive was met with mixed reviews. Some public interest groups praised the President for taking this initiative, while others strongly condemned the measure.

The White House has repeatedly pointed to the Directive as part of its defense of the President’s handling of the Edward Snowden matter.   For example, at an August 9, 2013 press conference President Obama said:

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.

Attorneys associated with the NWC litigate cases on behalf of employee-whistleblowers, many of which have direct impact on national security. Based on these experiences we have learned what protections must exist in order to give courageous and highly vulnerable employees a fighting chance to protect their jobs. Unfortunately, the Directive lacks any of these provisions.

Continue Reading Where We Stand on Obama’s “Policy Directive” On National Security Whistleblowers

On Monday July 22, Stephen Kohn was interviewed by Kim Williams of 2SER Sydney, Australia. Mr. Kohn discussed NSA Whistleblower Edward Snowden. Mr. Kohn explained how the United States has left National Security employees with little options for reporting wrongdoing as they have no whistleblower protections. He also gave a brief history of whistleblowing in the United States and compared how the U.S. Government treats whistleblowers much differently today than the Founding Fathers did during the War of Independence.  The segment is entitled “Whistleblowers: under the microscope.” Listen here.

There is significant historical precedent for the protection of whistleblowers demonstrating that such protections were strongly supported by the Founding Fathers. Mr. Kohn previously discussed this precedent in his New York Times Op-Ed, The Whistleblowers of 1777. Mr. Kohn is also the author of The Whistleblower’s Handbook: A Step by Step Guide to Doing What’s Right and Protecting Yourself  (Lyons Press, 2011).  

Request Based on Credible Evidence of Illegal 
Conduct Raised by Whistleblower Edward Snowden


Washington, D.C. June 13, 2013. Attorneys at the National Whistleblower Legal Defense and Education Fund (“NWLDEF”) sent a letter to United States Attorney General Eric Holder requesting that he open a formal investigation into criminal conduct by the Director of National Intelligence James Clapper and others. The request is based in part on the allegations raised by NSA whistleblower Edward Snowden indicating that the DNI lied in testimony to Congress. 
 
The request cites Snowden’s June 9 interviews with the media where he raised credible and specific credible evidenced documenting that the March 12, 2013 testimony given by General Clapper to the Senate Select Committee on Intelligence was false.
 
Stephen Kohn, who co-authored the letter and is also Executive Director of the National Whistleblowers Center, stated, “General Clapper and other executives at the Office of the Director of National Intelligence and the National Security Agency are not above the law. Although the use spying tactics applied abroad may be beyond the bounds of U.S. law enforcement, the actions and statements of General Clapper and associates before the U.S. Congress must conform to U.S. law. It is incumbent upon the Attorney General to hold executives within the Obama Administration fully accountable to the law.”
 
Kohn added, “No person may give false statements to the U.S. Senate, even under the guise of National Security. The title of Director of National Intelligence does not enable General Clapper to create a ‘truth-free zone’ when he testifies under oath before Congress.”
 
Important Links:
 

Continue Reading Whistleblower Group Requests Attorney General Holder to Open Criminal Investigation of DNI James Clapper for False Statements to Congress

There is a lot of discussion as to whether Edward Snowden, the NSA Whistleblower is a hero or a villain. If the government had established procedures under which intelligence employees could report wrongdoing and be protected from retaliation, Snowden would not have had to risk his freedom and career by releasing documentation of official misconduct to the press. However, there are currently no effective protections for workers in the intelligence community.

The intelligence community is exempt from Whistleblower Protection Act. Russell Tice spoke to MSNBC about this issue yesterday.

Mr. Tice states in the interview:

“The Whistleblower Protection Act does not apply to the intelligence community. They’re exempt from it. And most people in the intelligence community don’t realize that. So, you can’t even go to the Office of Special Counsel because they’re exempt from that, too, and the merit system protection board. So even if you use the Intelligence Community Whistleblower Protection Act, the only thing that gives you is the right to go to Congress. It doesn’t–it doesn’t have any teeth there to protect you against retribution from the agency that you’re reporting abuse on.” 

Watch the interview

In the past few days the Obama Administration has touted it’s October 10, 2012, Presidential Policy Directive which was designed to “protect” national security whistleblowers. At the time this directive was released the National Whistleblower Center strongly criticized it as failing to provide any real or substantive legal rights for national security employees. See NWC Press Release.

Continue Reading NSA Whistleblower Case Highlights Lack of Protection for Intelligence Employees