Features, frontpage, Online — September 29, 2014 at 9:01 pm

Protecting Whistleblowers and Secrets in the Intelligence Community

Daniel D’Isidoro*

Introduction

Members of the intelligence community receive different whistleblower protections than most federal employees, in large part due to the classified nature of their work. Though recent reforms have sought to shore up whistleblower protections, regulatory gaps remain. The following piece explores some of those gaps through examples, and suggests reforms to address them. Needed reforms include providing financial incentives to whistleblowers who identify massive fraud or waste in government programs; giving employees an expedited means to lawfully report to Congress; and creating an Office of Special Counsel for the Intelligence Community to act as an advocate for whistleblowers.

 

I. Background

In 1978, Congress passed major civil service reform affecting federal employees that increased the authority of the Office of Special Counsel (OSC).[1] The OSC is an investigative agency that seeks to protect federal whistleblowers from reprisal and other prohibited personnel practices, and it also has the authority to petition the Merit Systems Protection Board (MSPB), a quasi-judicial board empowered to hear and adjudicate appeals of certain personnel actions, to order an agency to take corrective action.[2] More than a decade after the reforms of the Civil Service Reform Act of 1978, there was a sense that the laws still did not protect whistleblowers, so Congress passed the Whistleblower Protection Act of 1989 (WPA)[3] and in 2012, Congress expanded these protections with the passage of the Whistleblower Protection Enhancement Act.[4]

These laws do not apply to employees of the intelligence community agencies, who are subject to the Intelligence Community Whistleblower Protection Act of 1998 (ICWPA).[5] The ICWPA created a process for employees and contractors of agencies within the intelligence community to report to Congress a matter of “urgent concern,”[6] but it did not protect these employees from retaliation by their agency.[7] In October 2012, President Barack Obama sought to change this when he issued Presidential Policy Directive 19 (PPD-19), which prohibited retaliation against intelligence community employees for reporting waste, fraud, and abuse to Congress, and it required the heads of the intelligence community agencies to develop personnel policies providing employees a review process for personnel actionswhen there is an allegation of reprisal.[8] The directive also created an External Review Panel where employees alleging reprisal could request further review outside of the agency by a panel of Inspectors General.[9]

 

II. Case Studies

A. Thomas Drake: Reporting Fraud

Thomas Drake believed that the NSA was wasting billions of dollars on a surveillance program called Trailblazer that did not work and did not adequately protect the privacy of Americans.[10] He tried to use the appropriate channels to complain about the program; however, the NSA did not abandon the program until 2006 after several articles had appeared in The Baltimore Sun criticizing the Trailblazer program and other management inefficiencies at the NSA.[11] When Trailblazer was abandoned, it had cost the taxpayer $1.2 billion.[12]

In 2001, the NSA hired Drake specifically to assist the agency to catch up with the e-mail and cell phone revolution.[13] Drake had serious concerns about the use of a program, known as Trailblazer, and he followed the proper procedures within the ICWPA by reporting his concerns to his supervisors, the NSA’s Inspector General, the Department of Defense Inspector General, and the Congressional intelligence committees.[14] He saw no results using these channels, so he disclosed evidence of what he considered to be massive waste, mismanagement, and illegality to a reporter for The Baltimore Sun.[15] Beginning in January 2006, The Baltimore Sun published a series of articles about problems at the NSA, including a story about the failed Trailblazer program and its staggering costs.[16] Drake initially garnered the attention of government investigators because they believed that he might have been the source for the December 2005 article in The New York Times that revealed a government wiretapping program.[17] After a search of his home and his computer, investigators uncovered the fact that he had been the source for The Baltimore Sun; however, Drake contended that he had not released any classified information.[18]

In 2008, Drake was forced out of his job at the National Defense University where the NSA had assigned him.[19] On April 14, 2010, the United States indicted Drake on five counts of willful retention of national defense information in violation of the Espionage Act, obstruction of justice, and four counts of making a false statement.[20] If convicted, Drake faced a possibility of thirty-five years in prison.[21] Ultimately, the government dropped the more serious charges against him and Drake agreed to plead guilty to a single misdemeanor count of exceeding his authorized use of an agency computer, and the Department of Justice stated that they would not oppose a sentence under which Drake served no prison time.[22]

Whether or not one believes that Drake was a criminal or a whistleblower, it is undisputed that the Trailblazer program that he railed against within the agency and to Congress, and eventually to the press, was a massive failure that cost the American taxpayers more than one billion dollars.[23] His subsequent prosecution is unlikely to encourage other employees in the intelligence community from sharing their concerns about massive waste and abuse in secret government programs.

 

B. Robert MacLean: Protecting Vital Programs

Federal air marshal Robert MacLean was not an intelligence employee, but his story sheds light on a major weakness of the ICWPA in allowing employees and contractors to report urgent concerns to the Congressional intelligence committees.[24] MacLean disclosed information to the press that was going to have immediate consequences, and if an employee in the intelligence community came across similar information, under the ICWPA, it could take as long twenty-one days before that employee could lawfully report to the Congressional intelligence committees.[25]

In July of 2003, MacLean and all other air marshals had received a briefing from Transportation Security Administration (TSA) that there was a “potential plot to hijack U.S. Airliners.”[26] That same month, TSA sent a text message stating that all “RON” (Remain Overnight) missions up to August 9, 2003 would be canceled.[27] This meant that for more than ten days, no air marshals would fly on long cross-country flights, which were considered the most vulnerable flight missions.[28] After receiving the text, MacLean complained to his supervisor and the Inspector General because he was concerned that the suspension of overnight missions created a danger to the flying public; however, he was told that nothing could be done.[29] Unsatisfied with this response, MacLean disclosed the contents of the text message to the media.[30] MSNBC published an article criticizing the TSA’s decision to suspend overnight missions until August 9th and several members of Congress joined in the criticism.[31] Senators demanded an explanation from the TSA, which initially claimed that budget constraints had prompted their decision. Congressional pressure mounted, and the TSA reversed its directive within hours.[32] While MacLean’s identity as the source to the media was not yet known, Senator Barbara Boxer expressed thanks to the air marshal “who came forward and told the truth about what was going on . . . and [brought] this issue into the spotlight.”[33]

At first, this appeared to be a classic success story in a whistleblower case, since an agency reversed an initially poor decision that potentially jeopardized the safety of Americans, after an employee disclosed that decision to the media.[34] The TSA did not have the same view and in 2005, when they discovered that MacLean was the source of this leak, he was fired because his contact with the reporter “constituted an unauthorized disclosure of sensitive security information.”[35] MacLean appealed his firing by arguing that his disclosure was protected whistleblowing activity.[36] He lost his appeal before the MSPB where they found that the “disclosure fell outside the WPA because it was ‘specifically prohibited by law.’”[37] In April 2013, the Federal Circuit overturned the MSPB’s determination that MacLean’s disclosure was prohibited by law, finding that MacLean’s disclosure was only prohibited by an agency regulation, not a congressional statute.[38] The Federal Circuit explained, “Congress changed the language ‘specifically prohibited by law, rule, or regulation’ in the statute’s draft version to simply ‘specifically prohibited by law,’ because Congress was concerned that the broader language would authorize agencies to adopt internal regulations to discourage an employee from coming forward with allegations of waste, fraud, or abuse.[39] The Federal Circuit vacated the MSPB’s decision and remanded back to the Board to determine whether MacLean’s disclosure qualifies for WPA protection.[40] The United States appealed the Federal Circuit’s decision to the Supreme Court, which granted certiorari and scheduled oral arguments for November 4, 2014.[41]

It is unclear whether or not MacLean will get his job back with the TSA, but it is clear that Congress appreciated his disclosure because it allowed them to pressure the TSA to reverse course on its decision to cease overnight missions.[42] More broadly, his situation highlights that when an agency is about to make a bad decision that threatens the safety of Americans, the best way to remedy that is to notify Congress.[43] Our laws should encourage whistleblowers to report to Congress, which may effect positive change while also securing sensitive or classified information.

 

C. Edward Snowden: Reporting Suspected Unlawful Conduct

As detailed and complicated as whistleblower protection laws are, is it fair to expect federal employees and contractors in the intelligence community to understand and navigate these rules on their own?[44] With much of their work being classified, these employees risk prosecution if they disclose any concerns about their work with anyone outside of their organization.[45]

In June 2013, The Washington Post began publishing articles about the NSA’s classified surveillance programs that targeted metadata held by major internet companies like Google, Yahoo, and Microsoft, as well as telephone call records from companies like Verizon and AT&T.[46] Metadata refers to information about the times, places, devices, and participants in electronic communication, but not the content of the communication.[47] Soon after these stories broke in The Washington Post and the British newspaper and web site, The Guardian, Edward Snowden, a former CIA computer technician who had recently worked as a contractor for the NSA, revealed himself as the source of the leaks.[48] Snowden stated that he decided to disclose the classified programs because “the public needs to decide whether these programs and policies are right or wrong.”[49] Within weeks of revealing himself as the source of the leaks, Snowden was charged with violating the Espionage Act.[50]

Snowden’s disclosures of the U.S. government’s surveillance programs sparked a debate in the country as to whether he had harmed national security by revealing some of the methods that the intelligence community uses to gather information or whether he was acting as a legitimate whistleblower who was exposing abuses by government agencies.[51] As a contractor employee with the NSA, the ICWPA would have applied to Snowden.[52] Therefore, while it is not clear whether he ever did, Snowden could have used the ICWPA process to report an “urgent concern” to the Inspector General of the NSA.[53] The law defines “urgent concern” as a “serious or flagrant problem, abuse, violation of law or Executive order, or deficiency relating to funding, administration, or operations of an intelligence activity involving classified information.” Had Snowden availed himself of the ICWPA, he could have reported his concerns to the Inspector General of the NSA, who would have had fourteen calendar days to determine whether the complaint was credible, and if so, the complaint would be forwarded to the head of the NSA.[54] The head of the NSA would then have had seven calendar days to transmit the complaint to the Congressional intelligence committees along with any comments he considered appropriate.[55] If the Inspector General did not find Snowden’s complaint to be credible, Snowden could have directly approached the intelligence committees, so long as he followed the direction on how to contact the committees.[56]

It is possible that Snowden’s specific complaints may have fallen outside the statute’s definition of urgent concern, if the surveillance programs were lawful pursuant to a Congressional authorization and/or a court order from the Foreign Intelligence Surveillance Court.[57] The definition of “urgent concern” specifically excludes “differences of opinions concerning public policy matters;” therefore, had Snowden reported his complaint to the Inspector General, the Inspector General may have determined that the agency’s programs were not abusive, nor unlawful and that the complaint was merely a “difference of opinion” on how to conduct surveillance activities.[58] In interviews, Snowden “said he had raised complaints both in Hawaii and at the N.S.A. headquarters at Fort Meade, Md., about ‘real problems with the way the N.S.A. was interpreting its legal authorities;’” but the NSA released what it said was the sole internal email from Snowden from April 8, 2013.[59] In the released email, Snowden does not reference any of the NSA’s surveillance programs, but rather he asks the NSA’s Office of General Counsel for clarification on the hierarchy of laws that govern the NSA’s activities.[60]

Regardless of whether the Inspector General found the complaint to be credible, Snowden could still have reported his concerns directly to the intelligence committees.[61] Based on the statements of Senator Dianne Feinstein, chairman of the Senate Select Committee on Intelligence, this avenue may have worked out better for Snowden since she has called for a “full review” of United States intelligence programs, while rejecting any suggestion that Snowden receive clemency.[62] It is not clear whether Snowden knew about the ICWPA process when he decided to disclose classified materials to the media. There are many government officials, including former Secretary of Defense Robert Gates, who believe that Snowden is a traitor, rather than a truth-telling whistleblower.[63] Regardless of Snowden’s true motivations, there are many employees and contractors for intelligence community agencies, who could benefit from having an advocate within the intelligence community that would advise them on the legal definition of “urgent concern”[64] and the proper reporting mechanisms if they have such a concern.[65]

 

III. RECOMMENDATIONS

A. Reward Whistleblowers in the Intelligence Community Who Identify Abuse

It is inevitable that money will be spent on programs that agencies eventually abandon.[66] However, due to the classified nature of government programs in the intelligence community, there is even a greater risk of ineffective programs continuing for long periods of time, since so few people know about each program, and the few that do may have little interest in disclosing a program’s ineffectiveness if the program provides their job.[67] Therefore, Congress should encourage employees in the intelligence community to disclose evidence of wasteful programs, so that an agency can eliminate ineffective programs and better steward tax dollars.

One of the most effective methods for encouraging whistleblowers in the United States has been under the False Claims Act (FCA), which allows ordinary citizens who discover fraud involving government funds to file a claim on behalf of the government and receive an award for their effort.[68] Since Congress revised the FCA in 1986, the number of claims filed have increased dramatically and a “successful whistleblower gets up to 30 percent of the recovery of treble the fraud, plus the fines.”[69] In fiscal year 2010, the government recovered $3 billion from civil cases alleging fraud.[70] One concern about a potential award to employees who report fraud or waste is that it will lead to meritless claims; however, under the FCA this has not been a large problem.[71] And as some of the largest awards have arisen in the defense industry, one can assume that similar instances of fraud and waste exist in the intelligence community.[72]

Due to the classified nature of intelligence community programs, it would not be appropriate or successful to file an FCA action in federal court because the government would assert the state secrets doctrine to either dismiss the entire lawsuit or at least prevent the disclosure of evidence that contains a state secret.[73] Since a court could not review a whistleblower’s claim of fraud or waste in a classified government program, the most appropriate body would be the External Review Panel created to review claims of reprisal by whistleblowers.[74] This is a panel made up of Inspectors General from intelligence community agencies; therefore, they are already accustomed and trained to identify waste, fraud, and abuse.[75] The panel could review claims of fraud or waste in classified government programs and if the claims were credible, the panel would have the authority to issue an award to the employee who brought this matter to their attention. Unlike the FCA, the government would be unable to recoup from a wrongdoer in this context due to the state secrets doctrine, so the award to a whistleblower in the intelligence community would be much smaller.[76] This smaller award may discourage whistleblowers from coming forward, since the large awards under the FCA offer “sufficient monetary protection for the risk of a lost job, lack of future in the organization or even the profession.[77]” However, the External Review Panel’s current mission is to protect a whistleblower from that exact type of retaliation. Therefore, they are well positioned to ensure that an employee is not subject to such retaliation after receiving his award.[78]

 

B. Provide an Expedited Avenue for Reporting True Emergencies to Congress

While Robert MacLean awaits a decision from the Supreme Court as to whether his disclosure was lawful, his story illustrates a major weakness of the ICWPA.[79] Imagine an employee in the intelligence community comes across information that his agency is going to cease certain operations aimed at a high-risk threat for the next ten days.[80] Under the ICWPA, the employee may report this to the Inspector General, who has fourteen days to determine the credibility before deciding whether to report to the head of the agency, and the head of the agency has another seven days before he would have to report to Congress.[81] By the time Congress is notified that the agency had ceased operations aimed at this high-risk threat, it will have been too late for Congress to stop the agency’s decision and the operations will have resumed; however, it is clear from Congress’s reaction to MacLean’s disclosure that they would want to know this information immediately as they pressured the TSA to reverse course.[82]

Therefore, employees in the intelligence community need an expedited way to report their concerns to the Congressional intelligence committees. One way to do this would be to allow an employee to submit his complaint to the intelligence committees concurrently with submitting the complaint to the Inspector General. The Inspector General could still have fourteen days to review the complaint and determine its credibility, but the employee may feel more at ease since Congress has at least been put on notice to his concern.[83] The agency head would also still have his seven days to submit additional comments along with the complaint to the intelligence committees.[84]

The intelligence committees will need to establish a way to manage these complaints to ensure that staffers immediately review urgent concerns and relay them to the committee chairs if they involve a significant threat to national security. If the allegation is serious enough, the committee can work directly with the Inspector General for that agency and the head of the agency to resolve the matter quickly without the matter being leaked to the press. While this may increase the volume of complaints that the intelligence committees receive from employees in the intelligence community, it would also expand the committees’ oversight of the activities of the intelligence community—a demand of some Senators.[85] So long as the intelligence committees properly manage the in-flow of such complaints, this concurrent complaint filing with Congress and the Inspector General will reduce the likelihood that a potential whistleblower will disclose his complaint to the media, thus it better protects the classified information and the employee, who otherwise may be charged with violating the Espionage Act.[86]

 

C. Create an Office of Special Counsel for the Intelligence Community

History will ultimately decide whether Thomas Drake, Robert MacLean, and Edward Snowden are heroic whistleblowers as they and their supporters believe. Drake contends that he tried to lodge his complaints through the proper channels but he saw no results.[87] MacLean reported his concerns to his supervisors and the Inspector General but was told that there was nothing that could be done.[88] There is significant disagreement between Snowden and the NSA as to whether he attempted to use any of the lawful means in place to report his concerns about NSA activities.[89] Regardless, their stories show that the employees in the intelligence community would benefit from an Office of Special Counsel of the Intelligence Community who would act as an advocate for whistleblowers and help them navigate the proper procedures in reporting waste, fraud, abuse, or reprisal. If there were an advocate that worked with the complaining employees to address their concerns, this would reduce the likelihood that the employees would end up frustrated by the feeling that no one was listening to their concerns, leading them to leak classified information to the press.

This Office of Special Counsel would help broaden whistleblower protection to a wider array of federal employees than currently receive them.[90] This office would issue reports to the Congressional intelligence committees on a regular basis, to ensure Congressional oversight of personnel actions within the national security field. These reports would enable Congress to make more informed decisions as to whether the employees in the intelligence community need additional protection from arbitrary or retaliatory personnel actions. This Office of Special Counsel would be located within the Office of the Director of National Intelligence (ODNI), because the Director of National Intelligence already has an oversight responsibility over the intelligence agencies and because it would allow the office to remain independent from the individual agencies’ activities and pressures.[91]

 

IV. CONCLUSION

In the last decade, the American public has become more aware of the important work of the intelligence agencies, yet the employees and contractors in these agencies lack protections offered to most federal employees.[92] The system that works for the rest of federal employees would not work well for them since much of their work involves classified information. Congress and the President have taken steps to address the disparity between employees through enacting the ICWPA and through implementation of PPD-19.[93] However, in recent years there have been several high-profile leaks of classified information, and during President Obama’s administration seven people have been charged with violations of the Espionage Act, while only three people had ever been charged under the 1917 Act prior to his Administration.[94] This article seeks to balance the interests of the government in protecting classified information with the rights of intelligence employees to report suspected abuses without facing retaliation. These goals are not mutually exclusive. By providing additional protections and assistance to these employees they will have more faith in the process that is in place; therefore, they will be less likely to leak information to the press.

The employees in the national security field are one of the country’s most important assets. They are of a few who would be able to identify waste, fraud or abuse in classified government programs, so we need to ensure an effective process is in place that allows them to report without fear of retaliation and without the feeling that the only way to effect change is to leak to the press. Congress should encourage whistleblowers to report to the intelligence committees as an alternative to leaking classified information to the press because it is ultimately Congress that will affect the real change that the whistleblowers are seeking.

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*Daniel D’Isidoro is a labor and employment attorney with the U.S. General Services Administration. Prior to joining the General Services Administration, he was a Judge Advocate in the United States Army. He earned his J.D. from New England Law | Boston and an LL.M. in National Security and U.S. Foreign Relations Law from The George Washington University Law School. The views expressed in this article are those of the author and do not represent the views of the General Services Administration, the United States Army, or the United States. The author would like to thank Professor McKay Smith for his guidance and encouragement in writing this article.

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[1] Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111. See also Adelaida Jasperse, Constitutional Law–Damned If You Do, Damned If You Don’t: A Public Employee’s Trilemma Regarding Truthful Testimony, 33 W. New Eng. L. Rev. 623, 656 (2011).

[2] 5 U.S.C. § 1214(b)(2)(B) & (C). See Jennifer S. Bard, Putting Patients First: How The FDA Could Use Its Existing Powers To Reduce Post-Market Adverse Events, 10 Ind. Health L. Rev. 495, 542 -543 (2013). See also 5 U.S.C. § 1204(a) (2012); Robert J. McCarthy, Why MSPB Judges Reject 98 Percent of Whistleblower Appeals, 60 Fed. Law. 37 (Mar. 2013).

[3] Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (codified in scattered sections of 5 U.S.C.). See also McCarthy, supra note 2.

[4] Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat. 1464 (2012); see also Editorial, New Protection for Whistle-Blowers, N.Y. Times, Nov. 30, 2012, at A34. Both whistleblower protection acts specifically exclude the following from the definition of “agency:” Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office. 5 U.S.C. § 2302(a)(2)(C). See Patricia L. Bellia, Wikileaks and the Institutional Framework for National Security Disclosures, 121 Yale L.J. 1448, 1525 (2012). 5 U.S.C. § 2302(a)(2)(C).

[5] Intelligence Community Whistleblower Protection Act of 1998, Pub. L. No. 105-272, title VII, 112 Stat. 2413 (1998).

[6] 5 U.S.C. app. 3 §8H(h)(1); 50 U.S.C. § 3517(d)(5)(G)(i). The law defines urgent concern as 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;” “[a] false statement to Congress, or a willful withholding from Congress, on an issue of material fact related to the funding, administration, or operation of an intelligence activity;” or an action constituting reprisal or threat of reprisal in response to an employee’s report of the urgent concern.

[7] Bellia, supra note 4 at 1525; see also Intelligence Community Whistleblower Protection Act of 1998, Pub. L. No. 105-272, title VII, 112 Stat. 2413 (1998). See also Richard Moberly, Whistleblowers and the Obama Presidency: The National Security Dilemma, 16 Employee Rts. & Emp. Pol’y J. 51, n.275 (2012).

[8] President Barack Obama, Presidential Policy Directive 19/PPD-19, (Oct. 10, 2012).

[9] Id. An employee could request review by the External Review Panel and the Inspector General of the Intelligence Community decides whether to convene a three-member Inspector General panel, which would make a recommendation to the agency head as to whether corrective action should be taken.

[10] Jesselyn Radack & Kathleen McClellan, The Criminalization of Whistleblowing, 2 Am. U. Lab. & Emp. L.F. 57, 64 (Fall 2011).

[11] Scott Shane, Obama Steps Up Prosecution of Leaks to the News Media, N.Y. Times, June 12, 2010, at A1.; Jane Mayer, The Secret Sharer, THE NEW YORKER, May 23, 2011, at 59.

[12] Shane, supra note 11; Mayer, supra note 11 at 59.

[13]Shane, supra note 11.

[14] Radack & McClellan, supra note 10 at 64.

[15] Id.

[16] Shane, supra note 11; Mayer, supra note 11 at 59.

[17] Shane, supra note 11.

[18] Mayer, supra note 11 at 59.

[19] Shane, supra note 11.

[20] United States v. Drake, No. 1:10-CR-00181-RDB, 2010 WL 1513342 (D. Md. filed Apr. 14, 2010).

[21] Scott Shane, Ex-N.S.A. Aide Gains Plea Deal in Leak Case; Setback to U.S., N.Y. Times, June 10, 2011, at A1.

[22] Id.

[23] See Mayer, supra note 11 at 59.

[24] See 5 U.S.C. app. 3 §8H(d) (2012); 50 U.S.C. § 3517(d)(5)(D) (2012).

[25] MacLean v. Dep’t of Homeland Sec., 714 F.3d 1301, 1304 (Fed. Cir. Apr. 26, 2013).; see 5 U.S.C. app. 3 §8H(d); 50 U.S.C. § 3517(d)(5)(D).

[26] MacLean, 714 F.3d at 1304.

[27] MacLean v. Dep’t of Homeland Sec., 112 M.S.P.R. 4, 5 (2009).

[28] Jon Knight, Patrolling the Unfriendly Skies: Protecting Whistleblowers through Expanded Jurisdiction, 20 Fed. Cir. B.J. 281, 282 (2010); Sarah Kehaulani Goo & Susan Schmidt, Memo Warns of New Plots to Hijack Jets, Wash. Post, July 30, 2003, at A1.

[29] MacLean, 714 F.3d at 1304.

[30] Id.

[31] Id.; Knight, supra note 28 at 281-82.

[32] Knight, supra note 28 at 282.

[33] U.S. Senator Barbara Boxer (D-CA) Holds News Conference on Air Marshals, in FDCHemedia Pol. Transcripts, July 30, 2003 (LexisNexis).

[34] Knight, supra note 28 at 282

[35] MacLean, 714 F.3d at 1304.

[36] Id.

[37] Id. at 1304-05 (quoting 5 U.S.C. § 2302(b)(8)(A)).

[38] Id. at 1309.

[39] Id. (quoting S. Rep. No. 969, 95th Cong., 2d Sess. (1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2743).

[40] Id. at 1310.

[41] MacLean v. Dep’t of Homeland Sec., 714 F.3d 1301, 1304 (Fed. Cir. Apr. 26, 2013), cert. granted, 82 U.S.L.W. 3672 (U.S. May 19, 2014) (No. 13-894) The question presented before the Court is:

Congress has directed that the Transportation Security Administration “shall prescribe regulations prohibiting” the “disclosure of information obtained or developed” in carrying out certain transportation security functions, if the agency “decides” that “disclosing the information would * * * be detrimental” to transportation security. Aviation and Transportation Security Act, Pub. L. No. 107-71, § 101(e), 115 Stat. 603; Homeland Security Act of 2002, Pub. L No. 107-296, Tit. XVI, § 1601(b), 116 Stat. 2312. Such information is referred to in the regulations as “Sensitive Security Information.” See, e.g., 67 Fed. Reg. 8351 (Feb. 22, 2002). The question presented is whether certain statutory protections codified at 5 U.S.C. 2302(b)(8)(A), which are inapplicable when an employee makes a disclosure “specifically prohibited by law,” can bar an agency from taking an enforcement action against an employee who intentionally discloses Sensitive Security Information.”

Supreme Court of the United States, http://www.supremecourt.gov/qp/13-00894qp.pdf (last visited Sept. 14, 2014).

[42] See Knight, supra note 28 at 282.

[43] See MacLean, 714 F.3d at 1304; Knight, supra note 28 at 282.

[44] See Intelligence Community Whistleblower Protection Act of 1998, Pub. L. No. 105-272, title VII, 112 Stat. 2413 (1998)

[45] See 18 U.S.C. § 798(a) (2012).

[46] Barton Gellman, U.S. Surveillance Architecture includes collection of Revealing Internet, Phone Metadata, Wash. Post, June 16, 2013, at A1.

[47] Id.

[48] Mark Mazetti & Michael Schmidt, Ex-Worker at C.I.A. Says He Leaked Data on Surveillance, N.Y. Times, June 9, 2013 at A1.

[49] Id.

[50] Joe Davidson, Focus Should be on Government Secrecy, not Snowden, Whistleblower Advocates Say, Wash. Post, June 25, 2013, at B04.

[51] See Mazetti & Schmidt, supra note48.

[52] 5 U.S.C. app. 3 §8H(a)(1)(A) (2012).

[53] Id. §8H(h)(1).

[54] Id. §8H(b).

[55] Id. §8H(c).

[56] Id. §8H(d).

[57] See Gellman, supra note 46.

[58] 5 U.S.C. app. 3 §8H(a)(1)(A).

[59] David E. Sanger, N.S.A. Releases Email That it Says Undercuts Snowden’s Whistle-Blower Claim, N.Y. Times, May 30, 2014, at A8.

[60] Id.

[61] 5 U.S.C. app. 3 §8H(d).

[62] Holly Yeager, House, Senate Intelligence Chairs Voice Fresh Concerns About NSA Eavesdropping, Wash. Post, Nov. 4, 2013 available at 2013 WLNR 27655935. Senator Feinstein noted that Snowden could have followed the procedures of the ICWPA, but by disclosing the NSA’s programs to the media, “he’s done an enormous disservice to our country.” Id.

[63] See Larisa Epatko, Former Defense Secretary Gates Calls NSA leaker Snowden a ‘Traitor’ PBS Newshour, Jan. 14, 2014 available at http://www.pbs.org/newshour/rundown/gates-on-snowden/.

[64] See 5 U.S.C. app. 3 §8H(h)(1); 50 U.S.C. § 3517(d)(5)(G)(i).

[65] See 5 U.S.C. app. 3 §8H(b) & (c); 50 U.S.C. § 3517(d)(5)(B) & (d)(5)(C).

[66] See Shane, supra note 11; Mayer, supra note 11 at 59.

[67] Id.

[68] Terry Morehead Dworkin, The Money or the Media? Lessons from Contrasting Developments in U.S. and Australian Whistleblowing Laws, 11 Seattle J. for Soc. Just. 653, 665 (Winter 2013); 31 U.S.C. §§ 3729-3733 (2012).

[69] Id. at 667; 31 U.S.C. §§ 3729-3733 (2012).

[70] Evan Perez, U.S. News: Lawsuits Bring in $3 Billion for U.S., Wall St. J., Nov. 23, 2010, at A4.

[71] Dworkin, supra note 68 at 668; 31 U.S.C. §§ 3729-3733.

[72] See id. at 667; 31 U.S.C. §§ 3729-3733.

[73] Steven D. Schwinn, The State Secrets Privilege in the Post-9/11 Era, 30 Pace L. R. 778, 781 (Winter 2010).

The state secrets doctrine is comprised of the “Totten ban” and the “Reynolds privilege” which come from Supreme Court cases. The “Totten ban” operates to cut off any litigation on a contract related to espionage on the pleadings. The “Reynolds privilege” protects and excludes evidence that contains a state secret, and unlike the Totten ban, it does not automatically end the case, “unless an essential claim or defense hinges only on protected evidence and cannot be established with alternative, non-privileged evidence.” Id. See generally Totten v. United States, 92 U.S. 105 (1875); United States v. Reynolds, 345 U.S. 1 (1953).

[74] See President Barack Obama, Presidential Policy Directive 19/PPD-19, (Oct. 10, 2012).

[75] See id.

[76] See Schwinn, supra note 3 at 781.

[77] Dworkin, supra note 68 at 668; 31 U.S.C. §§ 3729-3733 (2012).

[78] President Barack Obama, Presidential Policy Directive 19/PPD-19, (Oct. 10, 2012).

[79] See MacLean v. Dep’t of Homeland Sec., 714 F.3d 1301, 1309-10 (Fed. Cir. Apr. 26, 2013).

[80] See MacLean v. Dep’t of Homeland Sec., 112 M.S.P.R. 4, 5 (2009).

[81] 5 U.S.C. app. 3 §8H(b) & (c) (2012); 50 U.S.C. § 3517(d)(5)(B) & (d)(5)(C) (2012).

[82] See Knight, supra note 28, at 282.

[83] See 5 U.S.C. app. 3 §8H(b) (2012); 50 U.S.C. § 3517(d)(5)(B) (2012).

[84] 5 U.S.C. app. 3 §8H(c); 50 U.S.C. § 3517(d)(5)(C).

[85] Ron Wyden, Mark Udall & Martin Heinrich, Op-Ed., End the N.S.A. Dragnet, Now, N.Y. Times, Nov. 25, 2013, at A25.

[86] See United States v. Drake, No. 1:10-CR-00181-RDB, 2010 WL 1513342 (D. Md filed Apr. 14, 2010); Davidson, supra note50.

[87] Radack & McClellan, supra note 10 at 64.

[88] MacLean v. Dep’t of Homeland Sec., 714 F.3d 1301, 1304 (Fed. Cir. Apr. 26, 2013).

[89] Sanger, supra note 59.

[90] Cf. 5 U.S.C. § 2302(a)(2)(C) (excluding the intelligence community agencies from the definition of “agency” with respect to prohibited personnel practices).

[91] See 50 U.S.C. § 3023(b) (2012).

[92] See Rep. Bennie G Thompson, A Legislative Prescription For Confronting 21st-Century Risks To The Homeland, 47 Harv. J. on Legis. 277, 277 (Summer 2010).

[93] See Intelligence Community Whistleblower Protection Act of 1998, Pub. L. No. 105-272, title VII, 112 Stat. 2413 (1998); President Barack Obama, Presidential Policy Directive 19/PPD-19, (Oct. 10, 2012).

[94] John Kiriakou, Op-Ed., Obama’s Abuse of the Espionage Act is Modern-Day McCarthyism, Guardian, Aug. 6, 2013 available at http://www.theguardian.com/commentisfree/2013/aug/06/obama-abuse-espionage-act-mccarthyism.