Contractors with security clearances lack path to report problems

Monday - 6/17/2013, 2:44pm EDT

By Melissa Dawkins
Special to Federal News Radio

Federal contractors with security clearances are in a gray area when it comes to whistleblowing. There are whistleblowing rules for contractors without security clearance, and there are procedures for federal employees with security clearances.

But those employees, such as Edward Snowden, don't have a clear path to report waste, fraud and abuse without fear of retaliation, said John Mahoney, who leads the national security program for the law firm of Tully Rinckey, in an interview on Federal Drive with Tom Temin and Emily Kopp.

The Whistleblower Protection Enhancement Act of 2012, signed into law by President Barack Obama last November, ensures nondisclosure policies don't conflict with the rights, obligations or liabilities of government employees. The act, however, is not applicable to government employees with security clearances.

Presidential Policy Directive 19, signed by Obama on Oct. 10, 2012, extended whistleblower protections to the Intelligence Community. Under the directive, government employees with security clearances can't be subject to retaliation for reporting waste, fraud and abuse.

"Although the Presidential Policy Directive 19 does not cover contractor employees, I think it sets forth the clearest method by which secured contractors can blow the whistle," Mahoney said. "Basically, how secured people blow the whistle is that they report it to their supervisory chain, or they report it to the agency's inspector general that they work for, or they can report it to the Director of National Intelligence."

On Jan. 2, Obama signed the National Defense Authorization Act for Fiscal Year 2013, which strengthened the protections for government contractors who report wrongdoing. But government contractors in the intelligence community are exempt from the protections applicable to other government contractors without security clearances.

Mahoney said he believes Snowden will be prosecuted criminally, since his method of whistleblowing — publically leaking classified information — would not be protected under the Presidential Policy Directive even if he were a government employee instead of a contractor.

"He's gone rogue. He's gone off the grid, as we say," Mahoney said. "He's gone outside the scope of the various protections in that Presidential Policy Directive and the Whistleblower Protection Enhancement Act and has taken the law into his own hands and publicly disclosed otherwise classified materials and information which, frankly, is a felony."

More than 3.5 million government employees held some level of security clearance and roughly 1 million government contractors held some level of security clearance as of Oct. 1, 2012, according to the Office of the Director of National Intelligence (ODNI) 2012 Report on Security Clearance Determinations.

To avoid prosecution, other government contractors in the intelligence community should abide by the same policies their government-employee counterparts utilize if they feel compelled to disclose certain information, Mahoney said.

"There are various other laws and executive orders that cover classified information in the intelligence community, and he just blatantly disregarded and recklessly disregarded them," Mahoney said. "And either way, if and when he's captured, he's going to face some significant jail time."

Melissa Dawkins is an intern for Federal News Radio

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