New Whistleblower Protection Law Introduced in Congress

Government hand holding whistle

Texas Republican Congressman Louie Gohmert has filed a long-overdue bill that takes aim at the illegal – but largely unpunished  -Washington practice of suspending, denying, or revoking a security clearance in retaliation for reporting instances of fraud, waste, or abuse in the federal government. Called the “Adam S. Lovinger Whistleblower Reprisal Act of 2018,” the bill is a reaction to the treatment of a government employee featured in an August Daily Intel.

Using security clearances to retaliate against whistleblowers goes largely unpunished because the law leaves such decisions in the hands of managers at federal agencies. “This often results in the retaliator -typically a senior agency official – avoiding consequences while the whistleblower is left to pick up the pieces of his or her career,” Lovinger’s attorney, Sean Bigley, said in a statement.

Bigley, whose firm deals exclusively in security clearance cases, is a frequent contributor to ClearanceJobs.

Gohmert’s bill aims to add some teeth into the law. If the Inspector General of the Intelligence Community were to find that a federal employee “directed, recommended, or materially furthered a reprisal,” that employee would face penalties of anywhere from a 14-day suspension, to removal from office and a 10-year debarment from federal employment.

Lovinger’s case is a mystery wrapped inside a riddle

In August, I wrote about the strange case of Adam Lovinger, an analyst in the the Pentagon’s private think tank, the Office of Net Assessment (ONA). Lovinger, who had been on a detail with the National Security Council (NSC), noticed at least a million dollars in contract payments going to two individuals: Stefan Halper, a 74-year-old American foreign policy expert now living in England, and Jacqueline Newmyer, president of Long Term Strategy Group.

Newmyer is often called “Chelsea Clinton’s best friend.” Halper, for his part, is suspected of being the FBI’s source inside the Trump campaign as it investigated the possibility of collusion with the Russian government.

Unable to find any deliverables that would justify such large payments, Lovinger raised his concerns with his superiors in the ONA. That’s when the retaliations began.

First, he was recalled from his NSC assignment despite an otherwise stellar performance. In March of this year, he learned that his Top Secret security clearance had been revoked. Unable to perform his duties without a clearance, Washington Headquarters Services placed him on administrative leave in April, where he remains.

Unfortunately, Lovinger is one of many

Bigley spoke to Daily Intel about the case. He said that Washington insiders have discovered that using a person’s security clearance is “low-hanging fruit,” since revoking one is so easy. Without this law, the lack of consequences for offenders could continue unabated.

“Ultimately, this is about a much bigger picture than just Lovinger,” he said. “The Lovinger case is ‘Exhibit A’ of the problem, but it’s happening in a lot of other cases that aren’t in the news,” particularly in the Department of Defense, which Bigley called “ground zero for the problem.” He said his firm has just accepted its fourth case of reprisal in the DoD in the past year.

The vast majority of the more than four million Americans with a security clearance work for or with the Pentagon.

Bigley said the department needs “to clean up their act and start addressing a culture that allows this type of stuff to happen.”

whistleblower protection is a bipartisan issue

Frankly, as good an idea as it is, Gohmert’s bill comes too late in the season to have much of a chance of passing this year. The House of Representatives will go into recess on Friday, as representatives go home for the last few weeks leading up to the November 6 election. They will return for a lame duck session of four weeks in November and December before adjourning until the new Congress convenes in January.

But Gohmert is sure to refile the legislation then, and one ought not rule out its chances in a likely Democratic-led House next year. Whistleblower protection is a serious issue for both parties, regardless of who is accused.

Working in Lovinger’s favor is the fact that he is a genuine whistleblower who followed the rules. He saw something that did not look right, and he told his bosses. He did not print out copies of the documents and send them to The Intercept like Reality Winner. He didn’t send gigabytes worth of classified information to Wikileaks like Chelsea Manning. And he didn’t publicly ruin years of National Security Agency work like Edward Snowden.

Lovinger worked within the system, and the system is screwing him. Gohmert’s bill may not help Adam Lovinger directly, but it will ensure that no overzealous federal manager can do to anyone else what the DoD did to him.

Tom McCuin is a strategic communication consultant and retired Army Reserve Civil Affairs and Public Affairs officer whose career includes serving with the Malaysian Battle Group in Bosnia, two tours in Afghanistan, and three years in the Office of the Chief of Public Affairs in the Pentagon. When he’s not devouring political news, he enjoys sailboat racing and umpiring Little League games (except the ones his son plays in) in Alexandria, Va. Follow him on Twitter at @tommccuin

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