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More thoughts on Obama’s new PPD-19

by Linda Lewis

Yesterday, I reported that President Obama has published a new Presidential Policy Directive (PPD-19) promising to protect “intelligence community” whistleblowers from retaliation.  Since then, other reviews have been published that offer additional insights. Most reviewers seem to agree that the directive is inadequate as a substitute for protections that Congress has been urged for years to provide. Some of those protections were included in a recent U.S. Senate bill, S.743, but ultimately ended up on the House’s cutting room floor.

The House last week quickly approved legislation aimed at beefing up protections for federal workers who point out waste, fraud and abuse in the government, but passed a version that stripped out Senate language offering these “whistleblower” protections for intelligence officials.

The Whistleblower Protection Enhancement Act, S. 743, was passed by unanimous consent on Friday and with little debate, and after an agreement was reached between House Republicans and Democrats that the language related to intelligence officials should be taken out. (The Hill, 10/1/2012)

Below are links to other sources with comments on the new directive.

American Civil Liberties Union

Government Accountability Project

National Whistleblower Center

Project on Government Oversight

GAP’s legal director, Tom Devine, wrote in response to Thursday’s article, providing the following comments for publication with his permission.

1) You’re preaching to the choir generally about the policy not going far enough to be a solution on own, and White House doesn’t disagree at all.

2) Re/scope of security clearances – see first sentence of page 2, section B: “Any officer of employee of an executive branch agency” shall not retaliate on security clearances.

There are two tracks: 1) general whistleblower protection through the directive (when regs issued) for IC employees. 2) new whistleblower protection security clearance rights for all employees (again will kick in when regs issued).

3) The review process on intra-agency regs  might help; it requires agencies to makeover their internal SC procedures so comply with EO 12698, and then submit for mandatory certification by DNI…These agency reviews usually offer incremental change due to all the inherent work that goes into them. But WPEA Title 2 (S. 743, the version passed by Senate) spelled out mandatory, fair due process standards for intra-agency handling of SC actions, and we’re definitely going to keep trying to get that approved through alternate vehicles before Congress adjourns.

Regarding whether agencies can be forced to adhere to the new procedures, Mr. Devine wrote, “They have to focus on and overhaul their processes, and then get the result certified by DNI as complying with EO 12698. Then their agencies are vulnerable to remands from the IG Review Committee, along with high credibility recommendations to agency head to reverse the action. I don’t think either of these go too far for solutions, but are better than the current blank check for repression.

My comment:  Regarding point (2), it strikes me as curious that the memorandum does not direct agencies outside the Intelligence Community to create appeal procedures or require review of existing procedures. It therefore seems content to leave employees in outside agencies to seek redress under other laws (inadequate as they are).  It occurs to me that the wording might have been included to cover Intelligence Community employees who are detailed to outside agencies  rather than to cover employees directly employed by outside agencies.

Any other thoughts on PPD-19?