By Noah Roos
The federal government has grown increasingly reliant on contractors. Notably, in the aftermath of 9/11, the Intelligence Community (IC) faced increased demand for its services, so the IC turned to contractors to assist in handling the higher workload. Congress worried about the IC’s dependence on contractors, so it sought to limit the activities that can be delegated to contractors. However, while Congress has focused on curtailing contractor power, it has neglected until recently to give IC contractors protections equal to those available to IC employees.
The lack of safeguards for IC contractors is even more striking when one considers that IC workers as a whole have less protection than workers in other parts of the federal government. Under the Whistleblower Protection Act of 1989 (WPA), whistleblowers are protected from retaliation for making disclosures provided the disclosures are not prohibited by law or concern classified information. Federal whistleblowers can essentially disclose to anyone, but they have multiple ways to ensure protection against retaliation for their disclosures. For example, whistleblowers can petition the Merit Systems Protection Board for relief against retaliation. Whistleblowers can also take their case to the Office of Special Counsel, which has multiple avenues to combat allegations of reprisal. Non-IC agency heads are required to inform their workers about the whistleblower protections available to them. In the Whistleblower Protection Enhancement Act of 2012 (WPEA), Congress also created a Whistleblower Protection Ombudsman to educate federal workers about their protections. The WPEA also broadened the definition of a protected disclosure and expanded available protections.
By contrast, the Intelligence Community Whistleblower Protection Act of 1998 (ICWPA) governs the whistleblowing process for IC workers. While non-IC whistleblower protections focused on safeguards for whistleblowers, the ICWPA focused on the process by which information is disclosed. Disclosures made by IC whistleblowers are treated differently than those made by non-IC whistleblowers because of the confidential nature of the information being disclosed. The ICWPA only protects the IC worker if he makes his disclosure to an inspector general (IG), who then transmits the disclosure to Congress via the Director of National Intelligence (DNI). The ICWPA never laid out any specific protections against reprisal, so later statutes and regulations were needed to fill this gap, creating an administrative process for IC whistleblowers to contest retaliatory personnel actions and clearance determinations. Until the passage of the Foreign Intelligence Surveillance Reauthorization Act of 2017, IC employees had more safeguards than IC contractors. For instance, it was not clear if IC contractors could use the process in cases of personnel action. Interestingly, contractors were explicitly allowed to use the process to contest clearance determinations.
The IC is less protected in its whistleblowing than the rest of the federal government. Federal workers can essentially disclose however they please, with multiple ways to contest retaliation. However, the laws governing whistleblowing in the intelligence community were more concerned with the process by which a disclosure is made while whistleblower protections were an afterthought. IC whistleblowers only have the administrative process for protection, and IC contractors could not fully avail themselves of the process until recently. It remains to be seen if the IC whistleblowing procedure will continue to be feasible, given interference with the IGs and the DNI’s ability to prevent disclosures from reaching Congress.