A Better Whistleblower Law

I agree with virtually all of the arguments Jess and Christopher have offered regarding the many and serious problems with existing whistleblower protection law and bureaucratic mechanisms. Both of my colleagues argue that one channel must be made safe for whistleblower disclosures—the external channel, or “going public” with allegations. Christopher cites a 2014 Cleveland State Law Review article by Patrick Rahill as providing an example of a four-factor public interest defense for a national security whistleblower who elects to go to the press versus an agency or department inspector general. I’ll summarize Rahill’s test as follows:

Whistleblower mindset: Was the leak made in good faith or in bad faith?

Type of document leaked: Was the document hiding a legitimate or illegitimate secret?

Recipient of the leak: Was it a traditional or non-traditional publisher?

The public interest: Was the leak something that the average citizen would want to know about?

While Rahill’s discussion is an interesting one from an academic perspective, I found it largely unmoored from reality, especially in light of the many cases in which department or agency IG’s have proven unwilling to pursue whistleblower claims, or where the IG itself has been demonstrably corrupt.

For a “public interest defense” to ever become a legal and politically fact in the United States, it must be built on a solid, objective legal and political foundation. The good news is that the building blocks are already available.

Executive Order 13526

EO 13526, Classified National Security Information, is the current governing order regulating what can—and cannot—be classified. For our discussion here, it is Section 1.7(a) that is relevant and the text reads as follows:

In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to:

(1) conceal violations of law, inefficiency, or administrative error;

(2) prevent embarrassment to a person, organization, or agency;

(3) restrain competition; or

(4) prevent or delay the release of information that does not require protection in the interest of the national security.

The problem is that this language is contained in an executive order, not black letter law—and because of that it can be and is trumped by statutes like the National Security Agency Act of 1959, specifically Section 6(a) which states

Except as provided in subsection (b) of this section, nothing in this Act or any other law (including, but not limited to, the first section and section 2 of the Act of August 28, 1935 (5 U.S.C. 654) (repealed by Pub. L. 86-626, title I, Sec. 101, July 12, 1960, 74 Stat. 427)) shall be construed to require the disclosure of the organization or any function of the National Security Agency, or any information with respect to the activities thereof, or of the names, titles, salaries, or number of the persons employed by such agency.

I have written elsewhere about how NSA has used this provision to try to conceal waste, fraud, abuse and even criminal conduct committed years ago from ever seeing the light of day (that FOIA lawsuit of mine is now in mediation). One way to end the problem would be to take the Section 1.7(a) language of EO 13526 and make it law, with these key changes and additions (in boldface):

Section 1. Notwithstanding any other provision of law, in no case shall information be classified, continue to be maintained as classified, fail to be declassified, or otherwise deemed not releasable to the public in order to:

(1) conceal violations of law, inefficiency, or administrative error;

(2) prevent embarrassment to a person, organization, or agency;

(3) restrain competition; or

(4) prevent or delay the release of information that does not require protection in the interest of the national security; and

Section 2. Any record—whether designated a permanent or temporary record—which is inappropriately marked, designated or otherwise declared to be classified by an original classifying authority or their designee, or that is being withheld from public release under another statute, that meets any of the criteria in Section 1 shall automatically be considered illegally so designated, and the release of said illegally designated records shall be deemed in the public interest and lawful under the Constitution and the laws of the United States;

Section 3. Any release made pursuant to Section 2 must initially be made to either

1. the department or agency inspector general of the department or agency against whom the allegation and related disclosure pertain; or
2. the Intelligence Community Inspector General, unless the employee or contractor seeking to make such a disclosure has a good faith belief that the department or agency inspector general, or the Intelligence Community Inspector General, would not take seriously the allegation or protect the person seeking to make a disclosure; or
3. a Member of Congress or Congressional committee

Section 4. Upon confirmation of the receipt of said disclosure by

1. the department or agency inspector general of the department or agency against whom the allegation and related disclosure pertain; or
2. the Intelligence Community Inspector General; or
3. the Member of Congress or Congressional Committee;

any executive branch employee or contractor shall be held harmless for any subsequent disclosure of records inappropriately marked, designated or otherwise declared to be classified by an original classifying authority or their designee, or that is being withheld from public release under another statute, that meets any of the above criteria.

Section 5. The entity that receives a disclosure made pursuant to Section 2 shall, within 72 hours of the receipt of said disclosure, make public the fact that such a disclosure has been received, including the nature of the allegation and the department or agency involved.

Section 6. Should

1. no announcement by the entity in receipt of the disclosure and complaint made pursuant to this Act be forthcoming within 15 calendar days from the date of the disclosure; or
2. more than 180 days pass without the public release of the findings of any investigation conducted pursuant to a disclosure and complaint made pursuant to this act;

any executive branch employee or contractor shall be held harmless for any subsequent public disclosure of records inappropriately marked, designated or otherwise declared to be classified by an original classifying authority or their designee, or that is being withheld from public release under another statute, that meets any of the criteria in Section 1.

Thus, if the CIA were trying to hide a future torture program under the provisions of the CIA Act of 1949 (which exempts CIA operational files from disclosure under FOIA), the above language would make such an attempt illegal and its release to the press by a whistleblower a completely protected act if either the receiving IG or Congress failed to announce a public investigation within 15 days of the receipt of a disclosure. The legislative fix I’m suggesting thus neatly bypasses the need for a whistleblower “public interest defense” because the act of revealing waste, fraud, abuse or criminal conduct would itself be a clearly lawful action absent congressional action.

And what if an IG or Congress announced an investigation but slow-rolled it or otherwise tried to bury the issue? That’s why I included the language of Section 6.

If an IG or Congress failed to act and produce at least a preliminary report by 180 days after the initial disclosure, any executive branch employee or contractor—including the original whistleblower—could reveal the information to the press legally.

To be sure, a prospective national security whistleblower seeking to make a disclosure under the kind of statute proposed above would need to conduct due diligence by ensuring that their claim was thoroughly documented and tied to a specific, articulable violation of federal law or regulation. And the kind of anti-retaliation reforms I outlined in my original essay would need to be part of the overall legislative fix I’m proposing, as would a specific change in law that would instruct federal courts to give absolutely no deference to executive branch claims about disputed information being properly classified. Taken as a package, though, I think what I’m proposing might solve many of the problems that each of us have written about.