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Congress Considers Proposed Protections for Intelligence Community Whistleblowers

The United States House Oversight and Reform Subcommittee on Government Relations is considering proposed changes to protections available to U.S. Intelligence Community (IC) whistleblowers.

The Subcommittee’s January 28, 2020, public hearings received testimony from David K. Colapinto, National Whistleblower Center, Glenn A. Fine, U.S. Department of Defense, Elizabeth Hempowicz, Project on Government Oversight, Michael E. Horowitz, U.S. Department of Justice, and Paul Rosenzweig, R Street Institute.

The witnesses emphasized that whistleblowers’ disclosures should be pursued – not the whistleblowers personally – and that the whistleblower’s motive, whether benign or otherwise, should not determine whether the whistleblower’s disclosure is valid. Each stressed the need for greater and more robust whistleblower anonymity and confidentiality protections.

The witnesses recommended:

  • Broadening avenues through which protected disclosures can be made, and eliminating bureaucratic and process bottlenecks that slow the ability to bring information forward;

  • Rebalancing burdens of proof to give whistleblowers greater parity with civilian whistleblowers;

  • An expansive definition of adverse personnel actions to include public harassment, retaliatory investigations, and security clearance actions;

  • Establishing anonymity and confidentiality protections to address outing of whistleblowers by any individual who learns of the whistleblower’s identity; and

  • Granting testimonial subpoena power to enable the inspectors general (IGs) to conduct thorough assessments of both the whistleblower’s disclosure and the investigations of retaliatory personnel actions.

As a further deterrent, the witnesses recommended restoring claimants’ rights to pursue civil remedies for violations of the disclosure-without-consent rule, and to provide damages for whistleblower confidentiality breaches. Claimants should be allowed, the witnesses urged, access to federal courts and jury trials after exhausting administrative remedies up through the Merit Systems Protection Board (MSPB) on retaliation claims. Pointing to the deterrent effect in Title VII employment discrimination cases that grant the right to jury trial, the witnesses urged a similar arrangement to better protect federal whistleblowers. They testified that persistent, unresolved issues with the current claim adjudication process (in which the MSPB is the sole forum of last resort) leave whistleblowers vulnerable and send a message that they are not protected by the system.

Finally, on process delays at MSPB, the witnesses noted that not only does the MSPB lack a quorum of standing members (since January 2017), but it lacks any members whatsoever due to executive and legislative branch inaction. Further, even when the board is up and running, an estimate shows that the MSPB would need at least three years to address the existing backlog of more than 2,000 cases, not considering the nearly 60 cases added to the backlog each month.

Jackson Lewis P.C. © 2020

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About this Author

Bert Ware Employment Attorney Jackson Lewis Law Firm
Of Counsel

Bert H. Ware is Of Counsel in the Boston, Massachusetts, office of Jackson Lewis P.C. His practice focuses on representing employers in workplace law matters, including preventive advice and counseling. Mr. Ware has extensive experience as in-house and outside counsel in delivering strategic and tactical advice, counseling, and guidance to C-Suite and other senior executives, HR professionals, and staff support function executives concerning a very broad range of employment-related issues.

Mr. Ware’s in-house and private practice experience includes the...

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