Snowden Leak Highlights Few Whistleblower Protections for Intelligence Contract Employees

Mike Elk

Intelligence contractors like Edward Snowden have fewer whistleblower protections than any other government employees.

On Sun­day, The Guardian revealed that Edward Snow­den, a 29-year-old infor­ma­tion tech­nol­o­gy spe­cial­ist employed by the fed­er­al con­trac­tor Booz Allen Hamil­ton, was its source for a series of bomb­shell leaks regard­ing the Nation­al Secu­ri­ty Agency’s (NSA) sur­veil­lance appa­ra­tus. While Snowden’s leaks have raised a series of trou­bling ques­tions about Amer­i­cans’ pri­va­cy and the nation­al secu­ri­ty state, they also make clear how lim­it­ed the pri­va­cy and whistle­blow­er pro­tec­tions are for pri­vate con­tract employ­ees work­ing in the intel­li­gence sector.

Under cur­rent fed­er­al law, employ­ees work­ing for the fed­er­al gov­ern­ment have whistle­blow­er pro­tec­tions that pro­vide avenues for them to fol­low should they want to report poten­tial abus­es. As part of last year’s Whistleblower’s Pro­tec­tion Enhance­ment Act, rights for whistle­blow­ers were enhanced for many cat­e­gories of fed­er­al employ­ees, but intel­li­gence employ­ees were exclud­ed from cov­er­age under the act. Like­wise, intel­li­gence work­ers — both fed­er­al and con­tract employ­ees—were exclud­ed from whis­tle blow­er pro­tec­tions offered to mil­i­tary con­tract employ­ees under the most recent Nation­al Defense Autho­riza­tion Act (NDAA).

While fed­er­al work­ers employed in intel­li­gence gath­er­ing have less whistle­blow­er pro­tec­tions than oth­er fed­er­al work­ers, they are still able to raise their com­plaints with the Inspec­tor Gen­er­al of the agency employ­ing them or with mem­bers of Con­gress sit­ting on the Intel­li­gence Com­mit­tees. Under Pres­i­dent Barack Obama’s Pres­i­den­tial Pol­i­cy Direc­tive 19 (PPD-19) issued last Octo­ber, intel­li­gence work­ers direct­ly employed by the fed­er­al gov­ern­ment received enhanced whistle­blow­er pro­tec­tions against retal­i­a­tion. By con­trast, though intel­li­gence employ­ees employed for fed­er­al con­trac­tors like Booz Allen Hamil­ton are also allowed to report poten­tial abus­es to the Inspec­tors Gen­er­al of the agen­cies that con­tract with their employ­ers, they have no pro­tec­tions against employ­er retal­i­a­tion, such as being fired.

Intel­li­gence com­mu­ni­ty con­trac­tors have been shut out of all of the recent reforms,” says Angela Can­ter­bury, direc­tor of pol­i­cy at the Project On Gov­ern­ment Over­sight (POGO). They received no cov­er­age under the WPEA for fed­er­al employ­ees, the PPD-19 for IC civ­il ser­vants, and were carved out of the con­trac­tor whistle­blow­er pro­tec­tions in the NDAA — based on objec­tions from the Con­gres­sion­al intel­li­gence com­mit­tees — leav­ing them with no spe­cif­ic pro­tec­tions for whistle­blow­ing under the law. If you look at intel­li­gence con­trac­tors, they have no pro­tec­tions under any of the laws. It real­ly is an account­abil­i­ty loophole.”

The only recourse for con­science-strick­en employ­ees clas­si­fied like Snow­den have in these sit­u­a­tions is to hope their supe­ri­ors won’t fire them for report­ing abus­es. How­ev­er, with a com­pa­ny like Booz Allen that receives 98% of its $5.76 bil­lion annu­al rev­enue from the fed­er­al gov­ern­ment, there is a sub­stan­tial finan­cial moti­va­tion to not draw any atten­tion to abus­es by the fed­er­al government.

Where would a whistle­blow­er go first,” asks Don­ald Cohen, exec­u­tive direc­tor of the anti-pri­va­ti­za­tion group In The Pub­lic Inter­est. First, they [would] go up the chain of com­mand and [report­ing] it would­n’t be in the inter­est of the chain of com­mand. What is in the inter­est of the chain of com­mand is to keep qui­et and keep the con­tracts flow­ing. If you are in a pub­lic agency you may go up the chain of com­mand and you may run into the same road­blocks but it is clear what you can do from there.”

Not only do intel­li­gent con­tract employ­ees have few­er whistle­blow­ing pro­tec­tions, but the pri­vate cor­po­ra­tions that employ them also have few­er legal restric­tions when it comes to elec­tron­i­cal­ly mon­i­tor­ing and sur­veilling employ­ees. Accord­ing to Paul Secun­da, a labor law pro­fes­sor at Mar­quette Uni­ver­si­ty, fed­er­al work­ers direct­ly employed by the fed­er­al gov­ern­ment receive at least some pro­tec­tions from the 4th Amend­ment against search­ing their com­mu­ni­ca­tions, even on fed­er­al equip­ment, with­out first estab­lish­ing rea­son­able cause.

Indeed last year, the FDA was caught employ­ing a sophis­ti­cat­ed elec­tron­ic sur­veil­lance sys­tem to mon­i­tor dis­grun­tled FDA employ­ees who were com­mu­ni­cat­ing with Con­gres­sion­al staffers, jour­nal­ists, fed­er­al Inspec­tors Gen­er­al (IGs), and the Office of Spe­cial Coun­sel (OSC) regard­ing prob­lems with the design of a med­ical device. Fol­low­ing an inves­ti­ga­tion, last June the OSC released a Mem­o­ran­dum For Exec­u­tive Depart­ment and Agen­cies,” [PDF], which not­ed that:

agency mon­i­tor­ing specif­i­cal­ly designed to tar­get pro­tect­ed dis­clo­sures to the OSC and IGs is high­ly prob­lem­at­ic. Such tar­get­ing under­mines the abil­i­ty of employ­ees to make con­fi­den­tial dis­clo­sures. More­over, delib­er­ate tar­get­ing by an employ­ing agency of an employee’s sub­mis­sion (or draft sub­mis­sions) to the OSC or an IG, or delib­er­ate mon­i­tor­ing of com­mu­ni­ca­tions between the employ­ee and the OSC or IG in response to such a sub­mis­sion by the employ­ee, could lead to a deter­mi­na­tion that the agency has retal­i­at­ed against the employ­ee for mak­ing a pro­tect­ed dis­clo­sure. The same risk is pre­sent­ed by an employ­ing agency’s delib­er­ate tar­get­ing of an employee’s emails or com­put­er files for mon­i­tor­ing sim­ply because the employ­ee made a pro­tect­ed disclosure.

How­ev­er, since con­trac­tors are employed by pri­vate cor­po­ra­tions, arbi­trary search­es by cor­po­rate enti­ties on cor­po­rate prop­er­ty are legal, thus mak­ing it sig­nif­i­cant­ly more dif­fi­cult for whistle­blow­ers to pass on infor­ma­tion with­out being detect­ed by the cor­po­ra­tions employ­ing them.

Look at Snow­den him­self, look at what he had to do,” says Secun­da. He could­n’t rely on the 4th Amend­ment. He basi­cal­ly had to flee the coun­try. If he had still been an employ­ee of the CIA, he would have been a pub­lic employ­ee with pro­tec­tions against unrea­son­able search and seizure. He would have at least the­o­ret­i­cal­ly had more robust pro­tec­tions under the law. Giv­en that he was no longer employed by the CIA, giv­en that he was employed by Booz Allen, he does not fall under that state action doc­trine against unrea­son­able search and seizure by the state.”

Already, more than one-third of the 1.4 mil­lion peo­ple in the Unit­ed States with top secret secu­ri­ty clear­ance are employed as pri­vate con­trac­tors. With few­er pro­tec­tions afford­ed to them, pri­vate con­trac­tors, many whistle­blow­er advo­cates wor­ry, could receive an even larg­er share of this type of work.

There is not the same lev­el of account­abil­i­ty. We have a sit­u­a­tion where the intel­li­gence com­mu­ni­ty is large­ly run by con­trac­tors,” says POGO’s Can­ter­bury. Per­haps we should look at the influ­ence of the prof­it motive. Look at a com­pa­ny like Booz Allen where 98% of their rev­enue is from the fed­er­al gov­ern­ment. Are they going to rec­om­mend things in the nation­al inter­est or things that are impor­tant to their bot­tom line?”

Mike Elk wrote for In These Times and its labor blog, Work­ing In These Times, from 2010 to 2014. He is cur­rent­ly a labor reporter at Politico.
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