Intel whistleblowers could lose pensions

Thursday - 3/24/2011, 9:31am EDT

Debra Roth, partner, Shaw Bransford & Roth

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By Andrew Mitchell
Internet Editor
Federal News Radio

Congress is reportedly considering a bill that would strip federal employees of their pension if they are found to have leaked classified information.

This would represent a significant change from the current practice, which requires that feds be convicted in a court of law of the crimes of espionage or treason in order to forfeit their retirement benefits.

In an interview with Amy Morris on Federal News Radio's Federal Drive, Debra Roth, a partner at the law firm of Shaw, Bransford & Roth, expressed particular concern that federal workers could lose their pension simply based on an agency determination rather than on a ruling of a court of law.

"That's what's getting people...very anxious because, currently, you only lose your federal pension if you are convicted of the crimes of espionage and treason. Leaking classified information in and of itself may not constitute espionage or treason," Roth said.

If the reported bill became law it would be a major change in due process for the federal workforce since there would be no provision for the appeal of an agency ruling that the leaking of classified information had taken place. The bill in its current form is also said not to take into consideration the leaker's intent, such as whether or not the leak was made with the purpose of undermining national security.

According to reports, the bill is now under consideration in the Senate Intelligence Committee, chaired by Sen. Diane Feinstein (D-Calif). It would require employees at intelligence agencies to sign a contract stating that they will not leak even non-classified information and subjecting them to the possible forfeiture of pension benefits.

Reports say that it would be left up to the agencies themselves to even define what a "leak" is, which could mean that whistleblowers informing the media of an instance of waste, fraud or abuse in the federal government could be stripped of their pensions just as readily as those leaking classified information with the intention of harming national security.

Roth, who is an attorney and a veteran observer of political processes involving the federal workforce, predicts that the bill will not become law in its present form. "The politicians start at an extreme and they're working towards the middle ground," she explained.

However, while the bill may, in fact, not become law in its present state, Roth does find it a cause for alarm: "I think alarm is what gets people to the middle and that's the legislative process."

She added:

"At this point you have a bill that's being done in secret that people have heard about -- conceivably through a leak -- and people are very alarmed and very disturbed. I think that the idea is to start out on an extreme and they'll eventually get themselves somewhere to the middle. But I wouldn't be surprised if it does end up in the middle, as opposed to just getting removed from the bill."

Roth predicts that the final bill will require conviction, in a court of law, on a charge of disclosing classified information.

As an attorney, Roth said she is watching this situation very carefully because so many federal employees and contractors have security clearances and access to classified information. She feels the biggest danger is that information may be deemed classified after the fact and employees would lose their pensions for leaking information that was not classified at the time.

Roth expressed the fear that agencies could use retroactive classification of information as a "weapon," and "that's what's giving people a lot of concern."

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