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How to design whistle-blower protection for the intel community

Dec. 9, 2012 - 02:27PM   |  
By STEVEN L. KATZ   |   Comments

There has been growing and systemic momentum in the importance of whistle-blower protection programs in the global business community, international development, democracy and governance, and the expansion of U.S. whistle-blower laws, regulations and practices.

The global private sector now unhesitatingly creates whistle-blower programs and compliance requirements as a first line of detection against fraud, corruption, safety problems, and illegal and improper conduct. The international community mandates whistle-blower legislation to fight corruption, including as a prerequisite to joining the European Union. The U.S. Agency for International Development includes assessments and establishment of whistle-blower programs as a cornerstone for democracy and governance around the world.

On Nov. 27, President Obama signed into law the Whistleblower Protection Enhancement Act. The law was 13 years in the making and arguably the first substantive revision of the 1989 Whistleblower Protection Act (WPA). However, employees in the intelligence community and those working with national security classified information are expressly excluded from the coverage under the Whistleblower Protection Act — enhanced or otherwise.

Will whistle-blowers from these agencies be able to come in from the cold?

Before either the passage of the Whistleblower Protection Enhancement Act or the outcome of the 2012 presidential election was a reality, President Obama on Oct. 10 issued an eight-page Presidential Policy Directive called “Protecting Whistleblowers with Access to Classified Information.”

The directive purports to ensure that “employees serving in the intelligence community or who are eligible for access to classified information can effectively report waste, fraud and abuse while protecting classified national security information.” It says that retaliation against employees in the intelligence community for reporting waste, fraud and abuse is prohibited.

Arguably, the directive is experimental, and perhaps Congress will be patient enough to see what the White House and the relevant intelligence, national security and accountability officials develop. This would be preferable to a reaction resulting in the defunding of activities in support of the directive.

The legal trajectory of the directive could be seen as artfully avoiding conflict with the WPA and Congress. That is because the directive creates more responsibilities than rights, and does so by establishing new personnel policies and review processes and rooting them “to the fullest extent possible” in the federal merit principles and prohibited personnel practices of the 1978 Civil Service Reform Act. The directive makes clear the applicability of all existing laws and executive orders governing the use and disclosure of classified information, and intelligence sources and methods.

The president’s directive should be implemented applying the same best practices we already know constitute a bona fide whistle-blower program, including that it exists to promote governance, not simply to manage whistle-blowers.

Leaders, agency heads, executives and managers play an essential role and must:

• Be committed to establishing a whistle-blower program and fostering a culture and climate to support whistle-blower rights and processes.

• Communicate from the top to promote education and training programs for employees and managers.

• Hold accountable those people who infringe on the principles and rights of whistle-blower protection.

• Correct wrongdoing as a result of whistle-blower allegations and investigations.

Handling whistle-blower complaints — and complaints of alleged retaliatory actions — requires true separation and independence of those people and offices that would play a role. To enable this:

• Whistle-blower protection programs must be clearly stated and defined in law, regulation, ethics, internal codes of conduct and performance management requirements with detailed procedures, rights, responsibilities and consequences.

• Complaints and allegations must be professionally, independently, objectively and confidentially investigated and reviewed.

• All organization officials and employees must be equally covered by and subject to the whistle-blower program and related laws, regulations, codes and practices.

• Consequences, decisions and results must be clear and enforceable.

U.S. whistle-blower laws rank as global best practices and rest atop the bedrock that, in a democracy, citizens are the governors and the governed. Yet even our constitutional guarantee of due process cannot be presumed, and it does not supersede the need for express and legally protected vigilance and self-correction.

Steven L. Katz served as counsel to the Senate Governmental Affairs Committee; chief counsel to the chairman of the Merit Systems Protection Board; and senior adviser to the comptroller general of the United States.

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