Quartz’ Heather Timmons writes, “Government employees in agencies that face steep budget cuts or a massive shift in direction under [President Trump’s] administration have been contacting lawyers who specialize in representing whistleblowers, to see what their rights are under the law.” Perhaps it’s a good time for a quick review of whistleblowing and protections.
WHAT IT IS
Let’s begin with what whistleblowing in federal government is not. It’s not leaks. In other words, providing the media information about in-fighting in your office, differences in opinion, and the like at whatever level are not blowing the whistle. That’s probably just leaking. And beyond whatever protections the First Amendment may afford—a completely different question—it’s not whistleblowing.
Whistleblowing in the federal government is a fairly precise action defined in both law and policy. That’s why when most talk about “whistleblowing,” they’re talking about “protected” whistleblowing. In short, if the communication doesn’t meet some pretty strict requirements, it’s not guaranteed protection under federal law.
According to the Department of Defense, protected whistleblowing is “disclosing information which the discloser reasonably believes evidences: a violation of law, rule, or regulation, gross mismanagement, gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” That’s it—five categories protected by law. Advises the DoD IG, “Those contemplating blowing the whistle on alleged wrongdoing within the Defense Department are best advised to understand the context of their actions and the legal protections available, before they blow the whistle. Some actions, for instance, are not protected because they are illegal.”
IN THE INTEL COMMUNITY
If you’re a cleared professional working in the intelligence community, blowing the whistle is a little more complicated, and a little more risky. The Intelligence Community Whistleblower Protection Act (ICWPA) of 1998 protects “employees, or contractor employees, of the Defense Intelligence Agency, National Geospatial-Intelligence Agency, National Reconnaissance Office, and the National Security Agency.” Again, there are very specific requirements that a whistleblower must meet in order to be protected.
First, the individual making the report must be a civilian, military, or contracted employee of one of the four DoD intelligence agencies. Further, the whistleblower’s communication must be of “urgent concern,” which means it falls within one of three categories. The urgent concern has to be about a “serious or flagrant problem, abuse, violation of law or Executive Order, or deficiency relating to the funding, administration, or operations of an intelligence activity involving classified information.” It’s important to note that “differences of opinion concerning public policy matters” are not urgent concerns. Another example: Knowledge of a government official lying to Congress—by commission or omissions—qualifies as an urgent concern.
However, as New York University’s Brennan Center for Justice reports, “Contrary to popular belief, the fact that a person’s disclosures might be protected under the WPA, ICWPA, or PPD-19 does not constitute a defense against criminal prosecution. It merely shields the employee from being fired or other forms of adverse personnel action.” All of which is to say that blowing the whistle—and protections from retaliation in the aftermath—is no black and white matter.
The best advice for any government worker—especially those in the complex world of the intelligence community—before treading into the grey world of whistleblowing is to get the advice of a trusted agent.