National Security Whistleblowers
CRS Report for Congress
National Security Whistleblowers
December 30, 2005
Senior Specialist in Separation of Powers
Government and Finance Division
Congressional Research Service ˜ The Library of Congress
National Security Whistleblowers
To discharge its constitutional duties, Congress depends on information
obtained from the executive branch. Domestic and national security information is
provided through agency reports and direct communications from department heads,
but lawmakers also receive information directly from employees within the agencies.
They take the initiative in notifying Congress, its committees, and Members of
Congress about alleged agency illegalities, corruption, and waste within the agency.
This type of information comes from a group known as whistleblowers.
Through such techniques as “gag orders” and nondisclosure agreements,
Presidents have attempted to block agency employees from coming directly to
Congress. In response, Congress has enacted legislation in an effort to assure the
uninterrupted flow of domestic and national security information to lawmakers and
their staffs. Members of Congress have made it clear they do not want to depend
solely on information provided by agency heads. Overall, the issue has been how to
protect employees who are willing to alert Congress about agency wrongdoing.
The first procedures enacted to protect agency whistleblowers appeared in the
Civil Service Reform of 1978. It also contained language that excluded protections
to whistleblowers who work in federal agencies involved in intelligence and
counterintelligence. In 1989, Congress passed the Whistleblower Protection Act in
an effort to strengthen statutory protections for federal employees who assist in the
elimination of fraud, waste, abuse, illegality, and corruption. That statute continued
the exemption for national security information. It did not authorize the disclosure
of any information by an agency or any person that is (1) specifically prohibited from
disclosure by any other provision of law, or (2) “specifically required by Executive
order to be kept secret in the interest of national defense or the conduct of foreign
Several statutes apply expressly to national security information. Congress has
passed a series of laws known collectively as the Military Whistleblowers Protection
Act, under which members of the military may give information to Members of
Congress. It also passed the Intelligence Community Whistleblower Protection Act
of 1998 to encourage the reporting to Congress of wrongdoing within the intelligence
agencies. In crafting this legislation, Congress has sought to balance its need for
information with national security requirements, giving intelligence community
whistleblowers access to Congress only through the intelligence committees. For
legal analysis see CRS Report 97-787, Whistleblower Protections for Federal
Employees, by L. Paige Whitaker and Michael Schmerling.
This report will be updated as events warrant.
In troduction ......................................................1
“Gag Orders” and Lloyd-LaFollette....................................2
The “Gag Orders”.............................................2
Civil Service Reform Act of 1978.....................................5
National Security Exception.....................................7
Communications with Congress..................................8
Defense Department IG........................................10
A Statutory IG for the CIA......................................11
Creating the Federal Circuit ........................................12
Whistleblower Protections in Practice.................................12
Making it Easier to Punish......................................13
1985 House Hearings..........................................14
Office of the Special Counsel...................................14
Congressional Action, 1986-1988....................................16
Proposed Legislation in 1986....................................16
Action in 1988...............................................17
The Mt. Healthy Test..........................................18
Whistleblower Protection Act of 1989................................19
WPA Amendments in 1994.........................................20
MSPB and Federal Circuit......................................21
Department of the Navy v. Egan.................................24
The District Court’s Decision...................................26
Funding Restrictions (Nondisclosure Forms).......................27
Funding Restrictions (Access to Congress).........................28
OLC Opinion in 1996.............................................29
Reach of Lloyd-LaFollette......................................30
“Need to Know” by Lawmakers.................................30
CIA Whistleblower Act of 1998.....................................31
The Senate Bill...............................................32
The House Bill...............................................32
“Sole Process” and “Holdback”..................................33
Authority Over Classified Information............................33
The Richard Barlow Case..........................................35
State Secrets Privilege.........................................36
Options for the Court..........................................37
Appendix: Whistleblower Organizations..............................42
Government Accountability Project (GAP).........................42
National Security Whistleblowers Coalition........................42
National Whistleblower Center..................................42
Project On Government Oversight (POGO)........................43
National Security Whistleblowers
Congress and the President have often collided over access to information
within the executive branch. Although executive officials recognize that they have
a duty to keep Congress informed and to share agency documents, domestic as well
as national security, on some occasions the executive branch will invoke different
types of privileges to block congressional access. Congressional committees can
issue subpoenas and either house may hold executive officials in contempt for
refusing to release documents or to testify. However, those measures are extreme
and are taken only after customary efforts to find a compromise have collapsed. In
the midst of some of these confrontations, Presidents have issued orders to executive
agencies to limit information to Congress, particularly to prevent agency employees
from going directly to Congress. Congress has responded with statutes to keep the
lanes of information open.
In cases involving the reporting of sensitive information related to national
security, Congress has balanced the competing interests of keeping lawmakers
informed while safeguarding secrets. For example, the Intelligence Community
Whistleblower Protection Act of 1998 encourages employees of the Intelligence
Community to contact Congress but only through the Intelligence Committees.
Agency whistleblowers operate within a system of mixed messages. On the one
hand, the Code of Ethics adopted by Congress in 1958 directs all government
employees to “expose corruption wherever discovered.”1 Over the years, agency
employees have received credit for revealing problems of defense cost overruns,
unsafe nuclear power plant conditions, questionable drugs approved for marketing,2
contract illegalities and improprieties, and regulatory corruption. On the other hand,
exposing corruption can result in their being fired, transferred, reprimanded, denied
promotion, or harassed. In 1978, a Senate panel found that the fear of reprisal
“renders intra-agency communications a sham, and compromises not only the
employee, management, and the Code of Ethics, but also the Constitutional function
of congressional oversight itself.”3
1 72 Stat. B12 (1958) (H.Con.Res. 175).
2 The Whistleblowers: A Report on Federal Employees Who Disclose Acts of Governmental
Waste, Abuse, and Corruption, prepared for the Senate Committee on Governmental Affairs,thnd
3 Ibid., at 49.
Enacting statutory rights for whistleblowers and establishing new executive
agencies to protect those rights has not produced the protections that some expected.
As explained in this report, the Office of Special Counsel, the Merit Systems
Protection Board, and the Federal Circuit — the agencies created by Congress to
safeguard the rights of whistle blowers — have not in many cases provided the
anticipated protections to federal employees. National security whistleblowers were
exempted from the Civil Service Reform Act of 1978 and the Whistleblower
Protection Act of 1989. Some protections are available in statutes passed in recent
years, including the Intelligence Community Whistleblower Protection Act of 1998.
Individual Members and congressional committees have attempted to provide long-
term protections to whistleblowers, enabling them to provide the kinds of agency
information that Congress wants without costs and injuries to their government
The purpose of this report is to explore the statutory and political protections
available to national security whistleblowers. First, an examination of the Civil
Service Reform Act and the Whistleblower Protection Act will explain why national
security whistleblowers were excluded from the protections provided in those
statutes. Second, to the extent that those statutes are considered models to protect
national security whistleblowers, the experience of the Office of Special Counsel, the
Merit Systems Protection Board, and the Federal Circuit is relevant in evaluating
protections for national security whistleblowers.
Whistleblower activity is often viewed as a struggle between the executive and
legislative branches. Presidents may decide to centralize control of agency
information by requiring the agency head to approve the release of any information.
Members of Congress regularly express a need to obtain information from employees
within the agency, without seeking the approval of the agency head. This conflict
between the branches is seen in the issuance of executive orders by Presidents
Theodore Roosevelt and William Howard Taft in 1902 and 1909 and the resulting
legislation — the Lloyd-LaFollette Act of 1912 — adopted by Congress to maintain
access to agency information. The constitutionality of the Lloyd-LaFollette Act
continues to be challenged today by the Justice Department.
“Gag Orders” and Lloyd-LaFollette
Both Presidents Theodore Roosevelt and William Howard Taft threatened to fire
agency employees who attempted to contact Congress. Employees were ordered to
communicate only through the head of their agency. Congress responded by passing
legislation intended to nullify that policy and allow employees to contact lawmakers,
committees, and legislative staff.
The “Gag Orders”
President Theodore Roosevelt issued an order in 1902 to prohibit employees of
executive departments from seeking to influence legislation “individually or through
associations” except through the heads of the departments. Failure to abide by this
presidential order could result in dismissal from federal service. The order read:
All officers and employees of the United States of every description, serving in
or under any of the executive departments or independent Government
establishments, and whether so serving in or out of Washington, are hereby
forbidden, either directly or indirectly, individually or through associations, to
solicit an increase of pay or to influence or attempt to influence in their own
interest any other legislation whatever, either before Congress or its committees,
or in any way save through the heads of the departments or independent
Government establishments in or under which they serve, on penalty of dismissal4
from the Government service.
In 1909, President William Howard Taft prepared a similar order, this one
forbidding any bureau chief or any subordinate in an agency from going directly to
Congress concerning legislation, appropriations, or congressional action of any kind
without the consent and knowledge of the department head. Here is the language:
It is hereby ordered that no bureau, office, or division chief, or subordinate in any
department of the Government, and no officer of the Army or Navy or Marine
Corps stationed in Washington, shall apply to either House of Congress, or to
any committee of either House of Congress, or to any Member of Congress, for
legislation, or for appropriations, or for congressional action of any kind, except
with the consent and knowledge of the head of the department; nor shall any such
person respond to any request for information from either House of Congress, or
any committee of either House of Congress, or any Member of Congress, except5
through, or as authorized by, the head of his department.
Through language added to an appropriations bill in 1912, Congress rejected
these presidential orders. Congressional debate emphasized the concerns of
lawmakers that the orders, left unchecked, would put congressional committees in
the position of hearing “only one side of a case”: the views of Cabinet officials.
Lawmakers wanted to hear from the rank-and-file members of a department, who
could disclose what departments did not want communicated. Some Members of
Congress argued that they would not place the welfare of citizens “in the hands and
at the mercy of the whims of any single individual, whether he is a Cabinet officer6
or anyone else.” They insisted on access to agency employees and their complaints
and observations about the conduct of their supervisors.7 Legislative language was
drafted to ensure that agency employees could exercise their constitutional rights to
free speech, to peaceable assembly, and to petition the government for redress of8
During House debate, some legislators objected to the presidential orders as an
effort by Presidents to prevent Congress “from learning the actual conditions that
4 48 Cong. Rec. 4513 (1912).
6 Ibid., at 4657 (statement of Rep. Reilly).
8 Ibid., at 5201 (statement of Rep. Prouty).
surrounded the employees of the service.”9 If agency employees were required to
speak only through the heads of the departments, “there is no possible way of
obtaining information excepting through the Cabinet officers, and if these officials
desire to withhold information and suppress the truth or to conceal their official acts
it is within their power to do so.”10 If no agency employee was allowed to speak
directly to Congress and could communicate only through the department and
eventually the Cabinet officer, “then this is an aristocratic Government, dominated
completely by the official family of the President.”11 Another legislator remarked:
“The vast army of Government employees have signed no agreement upon entering
the service of the Government to give up the boasted liberty of the American
Those themes also emerged during Senate debate. One Senator said “it will not
do for Congress to permit the executive branch of this Government to deny to it the
sources of information which ought to be free and open to it, and such an order as
this, it seems to me, belongs in some other country than the United States.”13 The
language used to counter the presidential orders was added as Section 6 to the Postal
Service Appropriations Act of 1912.14 Section 6, known as the Lloyd-LaFollette Act,
provides for procedural safeguards to protect agency officials from arbitrary
dismissals when they attempt to communicate with Congress. The final sentence of
Section 6 reads: “The right of persons employed in the civil service of the United
States, either individually or collectively, to petition Congress, or any Member
thereof, or to furnish information to either House of Congress, or to any committee
or member thereof, shall not be denied or interfered with.”
Section 6 was later carried forward and supplemented by the Civil Service
Reform Act of 1978 and is codified as permanent law.15 The conference report on
the 1978 statute explained why Congress depends on agency employees to disclose
information directly to the legislative branch. The Civil Service Reform Act placed
limitations on the kinds of information an employee may publicly disclose without
suffering reprisal, but the conference report stated that there was “no intent to limit
the information an employee may provide to Congress or to authorize reprisal against
an employee for providing information to Congress.” Nothing in the statute was to
be construed “as limiting in any way the rights of employees to communicate with
or testify before Congress.”16
9 Ibid., at 5235 (statement of Rep. Buchanan).
10 Ibid., at 5634 (statement of Rep. Lloyd).
12 Ibid., at 5637 (statement of Rep. Wilson).
13 Ibid., at 10674 (statement of Sen. Reed).
14 37 Stat. 555, § 6 (1912).
15 5 U.S.C. § 7211 (2000).
16 S.Rept. 95-1272, 95th Cong., 2nd sess. 132 (1978).
As codified in 1978, the “right of employees, individually or collectively,” to
petition Congress becomes an enforceable right, and other prohibited personnel
practices are identified.17 The U.S. Code now provides that various qualifications to
the provision on prohibited personnel practices “shall not be construed to authorize
the withholding of information from the Congress or the taking of any personnel
action against an employee who discloses information to the Congress.”18
Civil Service Reform Act of 1978
Congress passed legislation in 1978 to abolish the Civil Service Commission
and create such new institutions as the Office of Personnel Management (OPM), the
Merits Systems Protection Board (MSPB), and the Office of Special Counsel (OSC).
The statute was the first to establish procedural protections for whistleblowers, but
also recognized an exception for the national security area. Because of conflicting
values in the legislation, however, whistleblowers never received the anticipated
protections, and Congress took note of that a decade later when it passed the19
Whistleblower Protection Act of 1989. This record is examined in subsequent
sections on “Whistleblower Protections in Practice” and “Congressional Action,
1986-88.” As explained in this report, the statutory safeguards in the Whistleblower
Protection Act did not meet the expectations of some lawmakers, agency employees,
and private organizations.
The Civil Service Reform Act included the following as one of nine merit
systems principles: “Employees should be protected against reprisal for the lawful
disclosure of information which the employees reasonably believe evidences (A) a
violation of any law, rule, or regulation, or (B) mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific danger to public health or
The Senate Committee on Governmental Affairs, in reporting the bill, remarked
that “Often, the whistle blower’s reward for dedication to the highest moral
principles is harassment and abuse. Whistle blowers frequently encounter severe
damage to their careers and substantial economic loss.” Protecting these employees
who disclose government illegality, waste, and corruption “is a major step toward a
more effective civil service.... What is needed is a means to assure them that they
17 92 Stat. 1216-17, § 703(a)(2) (1978). The section on prohibited personnel practices
provides: “This subsection shall not be construed to authorize the withholding of
information from the Congress or the taking of any personnel action against an employee
who discloses information to the Congress.” Ibid., at 1117.
18 5 U.S.C. § 2302(b) (sentence following para. 12) (2000).
19 103 Stat. 16, § 2 (1989).
20 92 Stat. 1114, § 2301(b)(9) (1978).
will not suffer if they help uncover and correct administrative abuses.”21 The House
Committee on Post Office and Civil Service, in its report, said that the bill “prohibits
reprisals against employees who divulge information to the press or the public
(generally known as “whistleblowers”) regarding violations of law, agency
mismanagement, or dangers to the public’s health and safety.”22 The House
committee therefore anticipated that the whistleblower could report on wrongdoing
not only through agency channels but also to the press and the public. In
supplemental views in this committee report, Representative Pat Schroeder linked
whistleblower protection to the needs of legislative oversight: “If we in Congress are
going to act as effective checks on excesses in the executive branch, we have to hear
about such matters.”23
During floor debate, Senator Jim Sasser stated that “patriotic employees who
bring examples of official wrongdoing to the public’s attention have, in the past,
enjoyed no meaningful protection against reprisals by their supervisors.” He referred
to “too many” examples of federal employees finding themselves “fired, transferred,
or deprived of meaningful work simply because they were brave enough to place the
public interest ahead of their own personal career interest.” He saw no reason why
an employee “should have to risk his career and his family’s financial stability for
performing a public service.”24
In recommending the Civil Service Reform Act, President Jimmy Carter
proposed an Office of Special Counsel “to investigate merit violations and to protect
the so-called whistleblowers who expose gross management errors and abuses.”25 At
a news conference, he looked to the Special Counsel to protect “those who are
legitimate whistleblowers and who do point out violations of ethics, or those who
through serious error hurt our country.”26 The House Committee on Post Office and
Civil Service, in reporting the bill, said that the Special Counsel “will have broad
authority to investigate, particularly ‘whistleblower’ cases.”27
The statute looked to the Special Counsel to protect the interests of
whistleblowers. The Special Counsel, appointed to a term of five years with the
advice and consent of the Senate, was directed to “investigate allegations involving
prohibited personnel practices and reprisals against Federal employees for the lawful
21 S.Rept. 95-969, 95th Cong., 2nd sess. 8 (1978).
22 H.Rept. 95-1403, 95th Cong., 2nd sess. 4 (1978).
23 Ibid., at 387.
24 124 Cong. Rec. 27548 (1978).
25 Public Papers of the Presidents, 1978, I, at 437.
26 Ibid., at 441.
27 H.Rept. 95-1403, 95th Cong., 2nd sess. 4-5 (1978).
disclosure of certain information and may file complaints against agency officials and
employees who engage in such conduct.”28
National Security Exception
As the Senate Committee on Governmental Affairs explained in reporting the
Civil Service Reform Act, it was not intended to protect whistleblowers “who
disclose information which is classified or prohibited by statute from disclosure.”29
It was the committee’s understanding that “section 102(d)(3) of the National Security
Act of 1947, which authorizes protection of national intelligence sources and
methods, has been held to be such a statute.”30
The section on prohibited personnel practices in the Civil Service Reform Act
covered all executive agencies but did not include “the Federal Bureau of
Investigation [FBI], the Central Intelligence Agency [CIA], the Defense Intelligence
Agency [DIA], the National Security Agency [NSA], and, as determined by the
President, any Executive agency or unit thereof the principal function of which is the
conduct of foreign intelligence or counterintelligence activities.”31
Prohibited personnel practices in the FBI were treated in another section of the
statute.32 During House debate, Representative Pat Schroeder argued that the FBI
whistleblower protections were “necessitated, in part, by the woeful history of this
agency in terms of eliminating internal wrongdoing.” She stated that an FBI
employee “is guaranteed protection if he or she follows the procedures set out.” If
the employee decided to make public disclosures of the wrongdoing, “this statute
does not serve as authorization for the Bureau to take reprisals. The general policy
of protecting whistleblowers runs to all Government instrumentalities.”33
Such intelligence agencies as the CIA and the DIA were not specifically covered
by the Civil Service Reform Act. Moreover, a subsection on actions to be taken by
28 92 Stat. 1112, § 3(4).
29 S.Rept. 95-969, 95th Cong., 2nd sess. 8 (1978).
30 Ibid., at 21-22. Section 102(d)(3) of the National Security Act of 1947 provides: “For the
purpose of coordinating the intelligence activities of the several Government departments
and agencies in the interest of national security, it shall be the duty of the [Central
Intelligence] Agency, under the direction of the National Security Council ... to correlate and
evaluate intelligence relating to the national security, and provide for the appropriate
dissemination of such intelligence within the Government using where appropriate existing
agencies and facilities: Provided, That the Agency shall have no police, subpena [sic], law-
enforcement powers, or internal-security functions: Provided further, That the departments
and other agencies of the Government shall continue to collect, evaluate, correlate, and
disseminate departmental intelligence: And provided further, That the Director of Central
Intelligence shall be responsible for protecting intelligence sources and methods from
unauthorized disclosure.” 61 Stat. 498.
31 92 Stat. 1115, § 2302(a)(2)(C)(ii) (1978).
32 Ibid., at 1117, § 2302.
33 124 Cong. Rec. 34100 (1978).
authorized supervisory employees referred to the special category of confidential or
secret information. Supervisors were prohibited from taking or failing to take a
personnel action with respect to any employee or applicant for employment as a
reprisal for a disclosure of information by an employee or applicant which they
reasonably believed evidences (1) a violation of any law, rule, or regulation, or (2)
mismanagement, a gross waste of funds, an abuse of authority, or a substantial and
specific danger to public health or safety “if such disclosure is not specifically
prohibited by law and if such information is not specifically required by Executive
order to be kept secret in the interest of national defense or the conduct of foreign
affairs.”34 The language recognized the President’s authority to designate certain
information as confidential or secret, excluding national security whistleblowers from
automatic protection. However, Representative Schroeder argued that the Civil
Service Reform Act “applies the merit system principles to all units of the Federal
Government,” and that “while specific enforcement provisions are not mandated for
agencies like CIA and GAO, the legislation makes it clear that whistleblowers should
be protected in these agencies.”35
In the event the Special Counsel received from an agency employee foreign
intelligence or counterintelligence information, “the disclosure of which is
specifically prohibited by law or by Executive order,” the statute directed the Special
Counsel to transmit that information to the House Permanent Select Committee on
Intelligence and the Senate Select Committee on Intelligence.36 The Special Counsel
was directed to make available to the public a list of noncriminal matters referred to
agency heads, but “shall take steps to ensure that any such public list does not contain
any information the disclosure of which is prohibited by law or by Executive order
requiring that information be kept secret in the interest of national defense or the
conduct of foreign affairs.”37
Communications with Congress
The Senate Committee on Governmental Affairs added to the bill a provision
to ensure that nothing in the section on prohibited personnel practices “will authorize
the withholding of any information from Congress, or will sanction any personnel
action against an employee who discloses any information to a Member of Congress
or its staff, either in public session or through private communications.” Moreover,
nothing in the bill was to be construed “as limiting in any way the rights of
employees to communicate with or testify before Congress, such as is provided in 5
U.S.C. 7102 (right to furnish information protected), or in 18 U.S.C. 1505 (right to
34 92 Stat. 1116, § 2302(b)(8).
35 124 Cong. Rec. 34100 (1978).
36 92 Stat. 1127, § 1206(b)(9).
37 92 Stat. 1128, § 1206(d).
38 S.Rept. 95-969, 95th Cong., 2nd sess. 23 (1978).
The conference report, in adopting the Senate provision, explained that it “is
intended to make clear that by placing limitations on the kinds of information any
employee may publicly disclose without suffering reprisal, there is no intent to limit
the information an employee may provide to Congress or to authorize reprisal against
an employee for providing information to Congress.” As further explanation:
For example, 18 U.S.C. 1905 prohibits public disclosure of information
involving trade secrets. That statute does not apply to transmittal of such
information by an agency to Congress. Section 2302(b)(8) of this act would not
protect an employee against reprisal for public disclosure of such statutorily
protected information, but it is not to be inferred that an employee is similarly
unprotected if such disclosure is made to the appropriate unit of the Congress.
Neither title I nor any other provision of the act should be construed as limiting
in any way the rights of employees to communicate with or testify before39
As enacted, the subsection of prohibited personnel practices states that it “shall
not be construed to authorize the withholding of information from the Congress or
the taking of any personnel action against an employee who discloses information to
In the same year that Congress passed the Civil Service Reform Act, it
completed action on legislation to establish offices of inspectors general in twelve
executive agencies. More inspectors general would be created in subsequent statutes.
The purpose was to create independent offices “to conduct and supervise audits and
investigations relating to programs and operations” in these agencies.41 These offices
were expected “to prevent and detect fraud and abuse in, such programs and
Inspectors general were authorized to receive and investigate complaints or
information received from agency employees concerning the “possible existence of
an activity constituting a violation of law, rules, or regulations, or mismanagement,
gross waste of funds, abuse of authority or a substantial and specific danger to the
public health and safety.”43 Supervisors were prohibited from taking or threatening
to take “any action against any employee as a reprisal for making a complaint or
disclosing information to an inspector general, unless the complaint was made or the
39 S.Rept. 95-1273, 95th Cong., 2nd sess. 132 (1978). The same language appears in H.Rept.
40 92 Stat. 1117 (1978).
41 92 Stat. 1101, § 2(1) (1978).
42 Ibid., at § 2(2)(b).
43 Ibid., at § 7(a).
information disclosed with the knowledge that it was false or with willful disregard
for its truth or falsity.”44
In reporting the section on employee complaints, the Senate Committee on
Governmental Affairs remarked: “Because of the employee’s position within the
agency, employee complaints carry with them a high likelihood of reliability.” Given
the difficulty of “blowing the whistle” on one’s supervisors or colleagues, “the
situation may often be serious.” The committee believed that “most employees
would much prefer an effective channel inside the agency to pursue complaints rather
than seeking recourse or publicity outside the agency. This preference should be
The legislative history of the Civil Service Reform Act anticipated that federal
agency whistleblowers would report wrongdoing not only to their supervisors but to
Congress, the public, and the press. In contrast, the inspectors general statute of 1978
authorized a set of procedures that were entirely in-house. The IGs were directed to
keep Congress “fully and currently informed about problems and deficiencies relating
to the administration of such programs and operations and the necessity for and
progress of corrective action.”46 Inspectors general would furnish semiannual reports
to agency heads, who would transmit the reports without change to appropriate
committees and subcommittees of Congress.47
Defense Department IG
In 1982, Congress created an inspector general in the Defense Department,
authorized to direct audits and investigations that require access to information
concerning (1) sensitive operational plans, (2) intelligence matters, (3)
counterintelligence matters, (4) ongoing criminal investigations by other
administrative units of the Defense Department related to national security, and (5)
“other matters the disclosure of which would constitute a serious threat to national
security.”48 The IG would serve as the principal adviser to the Secretary of Defense
“for matters relating to the prevention and detection of fraud, waste, and abuse in the
programs and operations of the Department.”49
The IG statute provided that nothing in the section “shall be construed to
authorize the public disclosure of information which is (A) specifically prohibited
from disclosure by any other provision of law; (B) specifically required by Executive
order to be protected from disclosure in the interest of national defense or national
security or in the conduct of foreign affairs; or (C) a part of an ongoing criminal
investigation.” However, nothing in that section or in any other provision of the
44 Ibid., at § 7(c).
45 S.Rept. 95-1071, 95th Cong., 2nd sess. 35-36 (1978).
46 92 Stat. 1101, at § 2(3).
47 Ibid., at 1103, § 5(b).
48 96 Stat. 751, § 8(b)(1) (1982).
49 Ibid., § 8 (c)(1).
statute “shall be construed to authorize or permit the withholding of information from
the Congress, or from any committee or subcommittee thereof.”50
A Statutory IG for the CIA
The Central Intelligence Agency had an Office of Inspector General, but it was
not statutory. Beginning in 1952, the CIA administratively established the position
of IG.51 The limitations of that office were underscored by the Iran-Contra affair,
which became public in November 1986 and highlighted the extent to which the CIA
and other executive agencies had failed to comply with statutory restrictions and had
not testified fully and accurately to congressional committees about covert
operations.52 One of the recommendations by the House and Senate Iran-Contra
Committees in November 1987 was the creation of an independent statutory IG
confirmed by the Senate. The committees concluded that the existing Office of
Inspector General in the CIA “appears not to have had the manpower, resources or
tenacity to acquire key facts uncovered by other investigations.”53
During hearings on March 1, 1988, by the Senate Intelligence Committee,
Senator Arlen Specter reviewed some of the misleading testimony that Congress had
received about the Iran-Contra affair, including testimony from the CIA.54 The next
year, Congress established an inspector general for the CIA, “appropriately
accountable to Congress” and designed to “promote economy, efficiency, and
effectiveness in the administration of such programs and operations, and detect fraud
and abuse in such programs and operations.”55 The IG would provide a means of
keeping the Director of the CIA “fully and currently informed about problems and
deficiencies relating to the administration of such programs and operations, and the
necessity for and the progress of corrective action,” and would ensure that the House
and Senate Intelligence Committees “are kept similarly informed of significant
problems and deficiencies as well as the necessity for and the progress of corrective
The IG reports directly to and is under the general supervision of the director,
who may prohibit the IG “from initiating, carrying out, or completing any audit,
inspection, or investigation if the Director determines that such prohibition is
necessary to protect vital national security interests of the United States.” In
50 Ibid., at 752-53.
51 CRS Report 89-129, Office of Inspector General in the Central Intelligence Agency:
Development and Proposals, by Frederick M. Kaiser, February 27, 1989. (Archived report
available from author.)
52 Report of the Congressional Committee Investigating the Iran-Contra Affair, H.Rept. 100-
53 Ibid., at 425.
54 “S. 1818-To Establish an Independent Inspector General,” Hearings before the Senate
Select Committee on Intelligence, 100th Cong., 2nd sess. 53-54 (1988).
55 103 Stat. 1711, § 801 (1989).
56 Ibid., at 1711-12.
exercising that power, the director shall submit “an appropriately classified statement
of the reasons for the exercise of such power within seven days to the intelligence
The creation of the IG also included a whistleblower provision. The IG would
receive and investigate “complaints or information from an employee of the Agency
concerning the existence of an activity constituting a violation of laws, rules, or
regulations, or mismanagement, gross waste of funds, abuse of authority, or a
substantial and specific danger to the public health and safety.” No action
constituting a reprisal, or threat of reprisal, for making such complaint may be taken
by any Agency employee in a position to take such actions, “unless the complaint
was made or the information was disclosed with the knowledge that it was false or
with willful disregard for its truth or falsity.”58 Additional procedures for CIA
whistleblowing would be enacted in 1998, discussed later in the report.
Creating the Federal Circuit
Under the Civil Service Reform Act, any employee or applicant for employment
adversely affected or aggrieved by a final order or decision of the MSPB could obtain
judicial review in any of the federal appellate courts.59 In 1982, Congress created a
new appellate court by consolidating the existing U.S. Court of Customs and Patent
Appeals with the appellate division of the existing U.S. Court of Claims. Congress
gave the new U.S. Court of Appeals for the Federal Circuit exclusive jurisdiction
over any final order or final decision of the MSPB.60
Whistleblower Protections in Practice
For a number of reasons, the whistleblower protections promised in the Civil
Service Reform Act failed to materialize. In signing the bill, President Carter said
that “it prevents discouraging or punishing [federal employees] for the wrong
reasons, for whistleblowing or for personal whim in violation of basic employee
rights.”61 At the signing ceremony, Representative Morris Udall, who managed the
bill on the House side, cautioned that “reform has consequences that you don’t like
sometimes, but the best reforms aren’t going to work unless people make them
57 Ibid., at 1712 (paragraphs (b)(3) and (4)).
58 Ibid., at 1714 (paragraph (e)(3)).
59 92 Stat. 1143, § 7703(b) (1978).
60 96 Stat. 38, § 127(a)(9) (1982).
61 Public Papers of the Presidents, 1978, I, at 1761.
62 Ibid., at 1762.
Part of the gap between promise and practice with regard to whistleblower
protections resulted from the complex and in some ways conflicting values placed
in the statute. Although it expressly stated its intention to protect whistleblowers, a
dominant purpose behind the statute was to make it easier to hold federal employees
accountable for their performance. In announcing the Administration’s civil service
reform proposals, President Carter noted “a widespread criticism of Federal
Government performance. The public suspects that there are too many Government
workers, that they are underworked, overpaid, and insulated from the consequences
of incompetence.”63 Although he immediately dismissed such “sweeping criticisms”
as “unfair,” much of the impetus behind civil service reform was driven by the belief
that managers needed greater discretion in demoting and removing under-performing
employees. In this same address, President Carter referred to the “sad fact” that it is
“easier to promote and to transfer incompetent employees than it is to get rid of
Making it Easier to Punish
In reporting the bill, the Senate Committee on Governmental Affairs referred
to conditions in federal agencies that made them “too often ... the refuge of the6566
incompetent employee.” An employee “has no right to be incompetent.” One of
the “central tasks” of the bill was “simple to express but difficult to achieve: Allow67
civil servants to be able to be hired and fired more easily, but for the right reasons.”
Senator Abraham Ribicoff, chairman of the committee that reported the bill,
listed two purposes of the legislation without indicating any tension between them.
The bill provided “new protection for whistleblowers who disclose illegal or
improper Government conduct” while at the same time it “streamline[d] the68
processes for dismissing and disciplining Federal employees.” He explained that
the bill “lowered the standard of evidence needed to uphold the dismissal of an
employee who has been fired for poor performance.” Instead of a supervisor proving
by a “preponderance of evidence” that an employee’s performance had not been “up
to par,” the conferees adopted the “substantial evidence” test to give supervisors
greater deference in assessing the work of an employee.69 Ironically, if a supervisor
found a whistleblower’s charges to reflect on poor management within the agency,
63 Public Papers of the Presidents, 1978, I, at 436.
65 S.Rept. 95-969, 95th Cong., 2nd sess. 3 (1978).
66 Ibid., at 4.
68 124 Cong. Rec. 33388-33389 (1978).
69 Ibid. For the “substantial evidence” test in the Civil Service Reform Act, see 92 Stat.
or if a whistleblower threatened to release information embarrassing to the
supervisor, it might now be easier to sanction or remove the whistleblower.
1985 House Hearings
One of the early statements by President Ronald Reagan urged whistleblowers
to come forward: “Federal employees or private citizens who wish to report
incidents of illegal or wasteful activities are not only encouraged to do so but will be
guaranteed confidentiality and protected against reprisals.” The “vital element” in
fighting fraud and waste “is the willingness of employees to come forward when they
see this sort of activity.” Employees “must be assured that when they ‘blow the
whistle’ they will be protected and their information properly investigated.” He
wanted to make it clear that “this administration is providing that assurance to every
potential whistleblower in the Federal Government.”70
As presiding officer of House hearings on June 26, 1985, Representative Pat
Schroeder heard contrary testimony from a variety of government officials, federal
employees, and private organizations on the implementation of the whistleblower
provisions in the Civil Service Reform Act. She concluded: “There is no dispute —
whistleblowers have no protection. We urge them to come forward, we hail them as
the salvation of our budget trauma, and we promise them their place in heaven. But
we let them be eaten alive.”71 Much of the focus of the hearings fell on the
performance of the Special Counsel.
Office of the Special Counsel
K. William O’Connor, Special Counsel of the MSPB, testified that his office
“has only one client; it is the enforcement of the merit systems and the laws that carry
it into effect.”72 The commitment to protect “bona fide whistleblowers” would be
done by “protection of the merit systems, the means designed by Congress to that end
and the end that the OSC is charged with effecting.”73 Federal employees who bring74
charges of agency wrongdoing “are not the clients of this office; the system is.”
Although some witnesses from the Schroeder subcommittee argued that the OSC was
principally established to “protect whistleblowers,” O’Connor testified that
“protection of whistle blowers — even the word whistle blower — does not appear
in the code at all. What is required by the statute is the protection of the Merit
70 Public Papers of the Presidents, 1981, at 360.
71 “Whistleblower Protection,” hearings before the House Committee on Post Office and
Civil Service, 99th Cong., 1st sess. 237 (1985).
72 Ibid., at 238.
73 Ibid., at 239.
74 Ibid., at 240.
75 Ibid., at 243.
Elsewhere O’Connor recognized the duties of his office with whistleblowers.
In identifying the three primary statutory functions of the OSC, he listed this one
first: “To provide a secure channel through which disclosures of waste, fraud,
inefficiency or hazards to public health or safety may be received and referred while
providing anonymity to the discloser.”76 He also described a number of recent
improvements in the operations of OSC, including “[a]n effective outreach program
. . . developed and maintained to apprise whistleblowers of the responsibilities of and
protection afforded by this office.”77 He pledged to “continue to use the statutory
powers of this office to protect bona fide whistleblowers from prohibited retaliation
for their protected disclosures by enforcing the law. That is, by prosecuting anyone
who takes reprisal against them because of their protected disclosures, and by
invoking appropriate agency corrective actions.”78
O’Connor described how he would handle an employee who had been
sanctioned by an agency, even though the employee had been involved in protected
If an agency sanction was proper because of an employee’s incompetence or
misconduct, even though the motivation of the deciding or proposing official was
contaminated by a de minimus vindictiveness or desire for retaliation and reprisal
for protected conduct, the sanction against the employee will probably stand.
The reprisal oriented official, however, may be prosecuted by my office and may
be disciplined by the Board if the improper motivation of the conduct is not de
minimus. This, it seems to me, is a proper and worthy result.
It is not in the public interest to employ, retain or cosset drones, incompetents,
disruptors of the workplace, malefactors, or those whose conduct is in other
unlawful ways inappropriate to the execution of the mission of the organization,
even though the person is also an individual who has engaged in specifically
protected conduct like whistleblowing. The public interest is, after all, the
execution of the public business; it is not a maintenance program for the
incompetent, nor is it in the public interest to foster internal dissidence,79
vituperation, backbiting and disaffection.
Representative Schroeder referred to some 11,000 federal employees who had
contacted the Office of Special Counsel for relief. O’Connor acknowledged that
these individuals had a complaint and thought they had a case, but added: “there are
many people who feel that they have complaints, and some of them are carrying bags
and walking up and down Constitution Avenue right now, I have no doubt.”80 When
Representative Schroeder pointed out that the women carrying bags up and down the
avenue are not on the federal payroll, O’Connor agreed. The point he wanted to
77 Ibid., at 244.
78 Ibid., at 252.
79 Ibid., at 250
80 Ibid., at 253.
make, he said, was that few of the 11,000 complaints were within the scope of
responsibilities handled by his office.81
Earlier O’Connor had offered his “firm belief” that most federal managers
follow the law and have integrity, whereas “most whistleblowers are malcontents.”82
In a newspaper article published on July 17, 1984, O’Connor was asked what advice
he would give, as a private attorney, to a potential whistleblower. His reply: “I’d say
that unless you’re in a position to retire or are independently wealthy, don’t do it.
Don’t put your head up, because it will get blown off.”83
Congressional Action, 1986-1988
On February 20 and 21, 1986, a subcommittee of the House Post Office and
Civil Service Committee held additional hearings on whistleblower protections. The
testimony showed a wide gap between the perceptions of lawmakers and executive
officials. As chair of the subcommittee, Representative Schroeder spoke of a
“general consensus” that the whistleblower protections in the Civil Service Reform
Act “must be changed if we are to treat Federal employees fairly and provide relief84
for victims of prohibited personnel practices.” Special Counsel O’Connor testified
against the need to pass a bill, introduced in the House, designed to strengthen
whistleblower protections: “The bill is flawed conceptually, as well, from inception,
for it proceeds upon the false premise that proper law enforcement systems now in
effect do not work to protect bona fide whistleblowers. The fact is that, now, the
statutory protection works. I oppose the bill.”85 Stuart E. Schiffer, Deputy Assistant
Attorney General, also testified against the bill. When asked whether he believed the
existing statutory system was adequate, he replied: “Yes; I do.” Asked again whether86
there was adequate protection for whistleblowers, he again answered: “Yes; I do.”
Proposed Legislation in 1986
The House Post Office and Civil Service Committee reported a whistleblower
protection act on September 22, 1986. The purpose was to “strengthen and improve
protections for the rights of Federal employees by clarifying the role of the Office of
Special Counsel (OSC) and emphasizing that its primary responsibility is to represent
individuals who are victims of prohibited personnel practices; by providing Federal
employees with a private right of action as an alternative to pursuing cases through
the OSC; by permitting the Special Counsel to seek judicial review of MSPB
81 Ibid., at 254.
82 Ibid., at 259.
83 Howard Kurtz, “Whistlin’ the Blues,” Washington Post, July 17, 1984, at A17.
84 “Whistleblower Protection Act of 1986,” hearings before the Subcommittee on Civil
Service of the House Committee on Post Office and Civil Service, 99th Cong., 2nd sess. 1
85 Ibid., at 74 (emphasis in original).
86 Ibid., at 99.
decisions to which the Special Counsel was a party; by protecting the identity of
Federal employees who make disclosures; by lessening the standard of proof needed
to prove reprisal in the case of whistleblower disclosures”; and other objectives.87
The House Subcommittee on Civil Service had been “unable to find a single
individual who has gone to the Office of Special Counsel since 1981 who has been
satisfied with the investigation of his or her case.”88
Action in 1988
Congress did not act on the 1986 legislation, but the House Committee on Post
Office and Civil Service reported the bill again in the 100th Congress. The report
referred to the results of a study by Dr. Donald R. Soeken who concluded that “most
whistleblowers were not protected, and in fact, they suffered cruel and disastrous
retaliation for their efforts.... It seems to me that the protection has also been a cruel
hoax. We ask people to act out of conscience and then we ignore their cries for
protection. We allow their careers to be destroyed and watch as the lives of the
whistleblowers and their families suffer under the strain.”89 Mary Lawton, Special
Counsel in 1987, testified that “to the extent that there may have been a lack of
emphasis on the corrective action authority of the [OSC] office, I have called for an
The Senate Committee on Governmental Affairs reported whistleblower
protection legislation on July 6, 1988.91 The committee described the results of a
1984 report prepared by the MSPB, “Blowing the Whistle in the Federal
Government.” It estimated that a large percentage of federal employees (69%-70%)
knew of fraud, waste and abuse but chose not to report it. Moreover, the percentage
of employees who did not report government wrongdoing because of fear of reprisal
rose from an estimated 20% in 1980 to 37% in 1983.92
In reviewing the board’s report, the committee agreed that “statutory
protections, alone, cannot guarantee the elimination of reprisal among civil servants.
Agency heads and supervisors must foster an environment where employees are
encouraged to come forward with suggestions and report problems and are
appropriately rewarded, rather than punished, for doing so.” The statistics included
in the board’s report “show that Congress’ specific statutory efforts to protect
whistleblowers thus far have had no observable impact on encouraging federal
employees to blow the whistle.”93
87 H.Rept. 99-859, 99th Cong., 2nd sess. 13 (1986).
88 Ibid., at 19.
89 H.Rept. 100-274, 100th Cong., 1st sess. 19 (1987).
90 Ibid., at 22.
91 S.Rept. 100-413, 100th Cong., 2nd sess. (1988).
92 Ibid., at 5.
93 Ibid., at 6.
The Mt. Healthy Test
The committee explained why whistleblowers were vulnerable to reprisal. Even
if an employee was successful in proving a connection between a whistleblowing
activity and a reprisal, the agency had an opportunity to show that it would have
taken the personnel action even if the employee had not engaged in protected
conduct. This type of agency defense had been developed by the Supreme Court in
Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977)
and later had been applied by the MSPB and the courts in reprisal cases. The
committee found that the Mt. Healthy test allowed an agency “to search an
employee’s work record for conduct that can be cited as the reason for taking an
adverse action. It has proved to be difficult for employees to refute the agency’s
contention that it would have taken the personnel action anyway.”94
To overcome this problem, the committee proposed that the Mt. Healthy test be
modified only for whistleblower reprisal cases. Once an employee had made a prima
facie case of reprisal by showing that whistleblowing was a factor in a personnel
action, the agency would be required to show by “clear and convincing evidence” that
the whistleblowing was not a “material factor” in the personnel action. “Clear and
convincing evidence” is less than the criminal standard of “beyond a reasonable
doubt” but higher than “preponderance of the evidence,” which was the current
standard for this type of employee case.95
The Whistleblowing Protection Act of 1988 passed the Senate and the House.
Section 2(b) of the Senate bill stated the “primary role” of the OSC was to “protect
employees, especially whistleblowers, from prohibited personnel practices,” and that
the OSC “shall act in the interests of employees who seek assistance from the [OSC]
and not contrary to such interests.”96 The bill passed the Senate by voice vote on
August 2, 1988.97 The House took up the Senate bill on October 3. Because the
100th Congress was about to end, the House skipped conference and worked out a
compromise version of the bill with the Senate.98 A letter of October 3 to
Representative Schroeder from Joseph R. Wright, Jr., Deputy Director of the Office
of Management and Budget, indicated that the two branches were in agreement on
the bill. There was no threat of a veto.99 The bill passed the House, 418 to zero.100
The Senate agreed to the House changes on October 7.101 Congress adjourned sine
die on October 22.
94 Ibid., at 14.
95 Ibid., at 15.
96 134 Cong. Rec. 19974 (1988).
97 Ibid., at 19983.
98 Ibid., at 27853.
99 Ibid., at 27855.
100 Ibid., at 28129.
101 Ibid., at 29544.
President Reagan pocket vetoed the bill on October 26. He stated that reporting
of “mismanagement and violations of the law, often called whistleblowing,
contributes to efficient use of taxpayers’ dollars and effective government. Such
reporting is to be encouraged, and those who make the reports must be protected.”102
However, he also said it was necessary to “ensure that heads of departments and
agencies can manage their personnel effectively.” It was his concern that the bill
would have changed the law “so that employees who are not genuine whistleblowers
could manipulate the process to their advantage simply to delay or avoid appropriate
adverse personnel actions.”103 He objected particularly to the “clear and convincing
evidence” test, holding that it “essentially rigs the Board’s process against agency
personnel managers in favor of employees. The interests of both employees and
managers should be fully protected.”104
The pocket veto memorandum also objected to restrictions placed on the power
of the President to remove the Special Counsel.105 The Civil Service Reform Act
provided that the Special Counsel “may be removed by the President only for
inefficiency, neglect of duty, or malfeasance in office.”106 Section 1211(b) of the bill
passed by Congress in 1988 contained the same language.107
President Reagan also objected to a provision that authorized the Special
Counsel to obtain judicial review of most MSPB decisions in proceedings to which
the Special Counsel was a party. Implementation of that provision “would place two
Executive branch agencies before a Federal court to resolve a dispute between them.
The litigation of intra-Executive branch disputes conflicts with the constitutional
grant of the Executive power to the President, which includes the authority to
supervise and resolve disputes between his subordinates.”108
Whistleblower Protection Act of 1989
The vetoed whistleblower bill was modified in 1989 and passed the Senate on
March 16 by a vote of 97 to zero.109 The modified bill retained the language
establishing that the “primary role” of the Special Counsel “is to protect employees,
especially whistleblowers, from prohibited personnel practices,” and provided that
the OSC “shall act in the interests of employees who seek assistance” from the office.
102 Public Papers of the Presidents, 1988-89, II, at 1391.
103 Ibid., at 1392.
106 92 Stat. 1122, § 1204 (1978).
107 134 Cong. Rec. 29537 (1988).
108 Public Papers of the Presidents, 1988-89, II, at 1392.
109 135 Cong. Rec. 4535 (1989).
The limitations on the President’s power to remove the Special Counsel were
retained, but no authority was granted to the Special Counsel to seek judicial review
of an MSPB decision.
The “clear and convincing evidence” test remained. The bill modified the Mt.
Healthy test to state that, “in cases involving allegations of reprisal for
whistleblowing, an individual must prove that whistleblowing was a contributing
factor in the agency’s decision to take the action.”110 The burden is then placed on
the agency to prove by clear and convincing evidence that the same personnel action
would have been taken in the absence of the protected disclosure. Also, for the first
time, the bill gave whistleblowers the right to appeal their own cases to the MSPB
if the Special Counsel failed or refused to do so.111 The House passed the bill under
suspension of the rules.112
In the Whistleblower Protection Act (WPA) of 1989, Congress found that
federal employees who make protected disclosures “serve the public interest by
assisting in the elimination of fraud, waste, abuse, and unnecessary Government
expenditures.”113 Congress also found that protecting employees “who disclose
Government illegality, waste, and corruption is a major step toward a more effective
civil service.” Moreover, the WPA stated that Congress, in passing the Civil Service
Reform Act of 1978, “established the Office of Special Counsel to protect
whistleblowers” who make protected disclosures.114 The WPA incorporates the
exemptions for national security information included in the 1978 statute.115 In
signing the WPA, President George H. W. Bush said that “a true whistleblower is a
public servant of the highest order.... [T]hese dedicated men and women should not
be fired or rebuked or suffer financially for their honesty and good judgment.”116
WPA Amendments in 1994
Congress passed legislation in 1994 to amend the Whistleblower Protection Act.
Legislation was needed to reauthorize the Office of Special Counsel and to ensure
that it functioned “as intended, to protect federal employee whistleblowers from on-
the-job harassment, negative job ratings, unfavorable transfers, denial of promotions
and other retaliation for their efforts to uncover waste and mismanagement in their117
110 Ibid., at 5036 (statement of Rep. Horton).
111 Ibid., at 4508 (statement of Senator Levin).
112 Ibid., at 5040.
113 103 Stat. 16, § 2(a)(1) (1989).
114 Ibid., at § 2(a)(2) and (3).
115 Ibid., at 23.
116 Public Papers of the Presidents, 1989, I, at 391.
117 S.Rept. 103-358, 103rd Cong., 2nd sess. 1 (1994).
In reporting the legislation, the Senate Committee on Governmental Affairs
expressed concern “about the extent to which OSC is aggressively acting to protect
whistleblowers from prohibited personnel practices.”118 On the House side, the
Committee on Post Office and Civil Service stated that “while the Whistleblower
Protection Act is the strongest free speech law that exists on paper, it has been a
counterproductive disaster in practice. The WPA has created new reprisal victims
at a far greater pace than it is protecting them.”119 The House committee concluded
that statutory mandates could easily be thwarted by a hostile agency climate: “There
is little question that agency leadership is a far stronger factor than statutory
provisions to establish a workplace environment of respect for the merit system.”120
MSPB and Federal Circuit
The House committee also found that the statistical record indicated that the
MSPB and the Federal Circuit of Appeals “have not been favorable to Federal
whistleblowers.” In the first two years after enactment of the WPA, whistleblowers
won approximately 20% of MSPB decisions on the merits. From FY1991 to
FY1994, that rate dropped to 5%; instead of providing a balance, the Federal Circuit
“has been more hostile than the Board. Since its 1982 creation, in reported decisions
employees have prevailed only twice on the merits with the whistleblower defense.”
The committee said it had received “extensive testimony at hearings that the MSPB
and the Federal Circuit have lost credibility with the practicing bar for civil service
cases.”121 In November 1993, GAO released a report indicating that 81 percent of
federal employees who sought whistleblower reprisal protection from OSC gave the
office a generally low to very low rating for overall effectiveness.122
A more recent study indicates that whistleblowers continue to fare poorly in the
MSPB and Federal Circuit. According to the Government Accountability Project,
a nonprofit, whistleblower advocacy group, only two out of 30 whistleblowers
prevailed on the merits before the MSPB from 1999 to 2005, and only one
whistleblower claim out of 96 prevailed on the merits before the Federal Circuit from
1995 to 2005.123 Some, however, may view this as an indication that many
whistleblowers present weak cases.
118 Ibid., at 3.
119 H.Rept. 103-769, 103rd Cong., 2nd sess. 12 (1994).
120 Ibid., at 13.
121 Ibid., at 17.
122 S.Rept. 103-358, 103rd Cong., 2nd sess. 3 (1994). General Accounting Office, “Reasons
for Whistleblower Complainants’ Dissatisfaction Need to be Explored,” Nov. 1993,
123 Project On Government Oversight, “Homeland and National Security Whistleblower
Protections: The Unfinished Agenda,” April 28, 2005, at 8.
The 1994 legislation provided for reasonable attorney fees in certain cases if the
federal employee or applicant for a federal job is the prevailing party and the MSPB
or administrative law judge determines that payment by the agency “is in the interest
of justice.”124 The statute required the Special Counsel, ten days before terminating
an investigation of a prohibited personnel practice, to provide a written status report
to the whistleblower of the proposed findings of fact and legal conclusions.125 The
employee then has an opportunity to respond and provide additional supporting
information. Through other provisions in the amendments, Congress attempted to
even the field for legitimate whistleblowers.126
During debate on the WPA, Representative Barbara Boxer said that Members
of Congress “learned when we passed the Military Whistleblower Protection Act that
without whistleblowers, frankly, we really could not do our job, because . . . we need
information and we need a free flow of information from Federal employees, be they
military or civilian.”127 The Military Whistleblower Protection Act (10 U.S.C. §
The first mention of Section 1034 was in 1956, with the codification of Title 10.
Section 1034 provided: “No person may restrict any member of an armed force in
communicating with a member of Congress, unless the communication is unlawful
or violates a regulation necessary to the security of the United States.”128 Congress
adopted this language during a tense confrontation with the Eisenhower
Administration over access to agency information. In 1954, President Eisenhower
wrote a letter to Secretary of Defense Charles E. Wilson in which he prohibited
testimony concerning certain conversations and communications between employees
in the executive branch.129 Attorney General Herbert Brownnell, Jr. released a legal
memorandum stating that the courts had “uniformly held that the President and the
heads of departments have an uncontrolled discretion to withhold the information and
papers in the public interest.”130 The Justice Department prepared a 102-page brief
concluding that Congress “cannot, under the Constitution, compel heads of
departments to make public what the President desires to keep secret in the public
124 108 Stat. 4361, § 2 (1994).
125 Ibid., at 4362.
126 For floor debate, see 140 Cong. Rec. 27357-27361, 28823-28826 (1994).
127 135 Cong. Rec. 5037 (1989).
128 70A Stat. 80 (1956).
129 CQ Almanac, 1956, at 737.
interest.”131 Representative John Moss said the Justice Department analysis was a
demand that Congress “rely upon spoon-fed information from the President.”132
Congress had created an inspector general for the Defense Department in 1982.
Legislation in 1988 added a section on “Safeguarding of Military Whisteblowers,”
including prohibitions on retaliatory personnel actions against a member of the armed
services for making or preparing a protected communication with a Member of
Congress or an inspector general. The IG was authorized to investigate allegations
by a member of the armed services who claims that a prohibited personnel action has
been taken or threatened to be taken.133 The conference report explained:
The conferees note that in the course of their duties, members of the Armed
Forces may become aware of information evidencing wrongdoing or waste of
funds. It is generally the duty of members of the Armed Forces to report such
information through the chain of command. Members of the armed forces,
however, have the right to communicate directly with Members of Congress and
Inspectors General (except to the extent that a communication is unlawful under
applicable law or regulation), and there may be circumstances in which service
members believe it is necessary to disclose information directly to a Member of
Congress or an Inspector General. When they make lawful disclosures, they
should be protected from adverse personnel consequences (or threats of such
consequences), and there should be prompt investigations and administrative
review of claims of reprisals. When such a claim is found to be meritorious, the
Secretary concerned should initiate appropriate corrective action, including134
disciplinary action when warranted.
Other modifications of the Military Whistleblower Protection Act are found in135
legislation passed in 1989, 1994, 1998, and 2000.
A current case of a military whistleblower concerns Bunnatine Greenhouse, who
served as the chief of civilian contracting for the U.S. Army Corps of Engineers until
she was demoted on August 27, 2005. She and the law firm representing her claim
that she was demoted in retaliation for publicizing the concerns she had about no-bid136
contracts for work done in Iraq. This case received wide notice, including a PBS
documentary and a Washington Post article.137
131 Ibid., at 740.
133 102 Stat. 2027, § 846 (1988).
134 H.Rept. 100-989, 100th Cong., 2nd sess. 436-37 (1988). This language also appears at 134
Cong. Rec. 16977 (1988).
135 103 Stat. 1910, § 202 (1989); 108 Stat. 2756, § 531 (1994); 112 Stat. 2107, § 993 (1998);
136 For more detail, see [http://www.whistleblowers.org].
137 [http://www.pbs.org/now/politics.greenhouse.html]; Neely Tucker, “A Web of Truth:
In 1983, President Ronald Reagan directed that all federal employees with
access to classified information sign “nondisclosure agreements” or risk the loss of
their security clearance.138 Congress, concerned about the vagueness of some of the
terms in the Reagan order and the loss of access to information, passed legislation in
nondisclosure policy. The dispute was taken to court and in 1988 District Court
Judge Oliver Gasch held that Congress lacked constitutional authority to interfere,
by statute, with nondisclosure agreements drafted by the executive branch to protect
the secrecy of classified information.140 Judge Gasch quoted from the Supreme
Court’s decision in Egan, issued in early 1988: “The authority to protect such
[national security] information falls on the President as head of the Executive Branch141
and as Commander in Chief.”
Department of the Navy v. Egan
Egan had been decided on statutory, not constitutional, grounds. The dispute
involved the Navy’s denial of a security clearance to Thomas Egan, who worked on
the Trident submarine. He was subsequently removed. Egan sought review by the
Merits Systems Protection Board (MSPB), but the Supreme Court upheld the Navy’s
action by ruling that the grant of security clearance to a particular employee, “a
sensitive and inherently discretionary judgment call, is committed by law to the
appropriate agency of the Executive Branch.”142 The conflict in Egan was solely
within the executive branch (Navy versus MSPB), not between Congress and the
The focus on statutory, not constitutional, issues was reflected in briefs
submitted by the parties. The Justice Department noted: “The issue in this case is
one of statutory construction and ‘at bottom . . . turns on congressional intent.’”143
The Court directed the parties to address this question: “Whether, in the course of
reviewing the removal of an employee for failure to maintain a required security
Whistle-Blower or Troublemaker, Bunny Greenhouse Isn’t Backing Down,” Washington
Post, Oct. 19, 2005, at C1.
138 National Security Decision Directive 84 (1983); see Louis Fisher, “Congressional-
Executive Struggles Over Information Secrecy Pledges,” 42 Adm. L. Rev. 89, 90 (1990).
139 101 Stat. 1329-432, § 630 (1987); 102 Stat. 1756, § 619 (1988).
140 National Federation of Federal Employees v. United States, 688 F.Supp. 671 (D.D.C.
141 Ibid., at 685 (citing Department of the Navy v. Egan, 198 S.Ct. at 824, 484 U.S. 518, 527
142 Department of the Navy v. Egan, 484 U.S. at 527 (emphasis added).
143 U.S. Department of Justice, “Brief for the Petitioner,” Department of the Navy v. Egan,
October Term 1987, at 22 (citing Clarke v. Securities Industry Ass’n, No. 85-971, Jan. 14,
clearance, the Merit Systems Protection Board is authorized by statute to review the
substance of the underlying decision to deny or revoke the security clearance.”144
The questions centered on 5 U.S.C. §§ 7512, 7513, 7532, and 7701. The Justice
Department, after analyzing the relevant statutes and their legislative history, found
no basis for concluding that Congress intended the MSPB to review the merits of
security clearance determinations.145 Oral argument before the Court on December
2, 1987, explored the statutory intent of Congress. At no time did the Justice
Department suggest that classified information could be withheld from Congress.
The Court’s ruling in favor of the Navy did not limit in any way the right of Congress
to classified information. The Court decided the “narrow question” of whether the
MSPB had statutory authority to review the substance of a decision to deny a security
cl earance. 146
Although the Court referred to independent constitutional powers of the
President, including those as Commander in Chief and as head of the executive
branch,147 and noted the President’s responsibility with regard to foreign policy,148 its
decision was based on statutory construction. In stating that courts “traditionally
have been reluctant to intrude upon the authority of the Executive in military and
national security affairs,” the Court added this important qualification: “unless
Congress specifically has provided otherwise.”149 The Justice Department’s brief had
also stated: “Absent an unambiguous grant of jurisdiction by Congress, courts have
traditionally been reluctant to intrude upon the authority of the executive branch in
military and national security affairs.”150 Nothing in the legislative history of the
Civil Service Reform Act of 1978 convinced the Court that MSPB could review, on
the merits, an agency’s security-clearance determination.151
The President’s national security powers surfaced at times during oral argument
before the Supreme Court, when the Justice Department and Egan’s attorney,
William J. Nold, debated the underlying statutory issues. After the department made
its presentation, Nold told the Justices: “I think that we start out with the same
premise. We start out with the premise that this is a case that involves statutory
interpretation.” Nold stated his view of the department’s occasional references to
constitutional matters: “What they seem to do in my view is to start building a cloud
around the statute. They start building this cloud and they call it national security,
144 Ibid., at (I) (emphasis added).
145 U.S. Department of Justice, “Petition for a Writ of Certiorari to the United States Court
of Appeals for the Federal Circuit,” Department of the Navy v. Thomas E. Egan, October
Term 1986, at 4-5, 13, 15-16, 18.
146 484 U.S. at 520.
147 Ibid., at 527.
148 Ibid., at 529.
149 Ibid., at 530 (emphasis added).
150 U.S. Department of Justice, “Brief for the Petitioner,” Department of the Navy v. Egan,
October Term, 1987, at 21.
151 484 U.S. at 531 n. 6.
and as their argument progresses ... the cloud gets darker and darker and darker, so
that by the time we get to the end, we can’t see the statute anymore. What we see is
this cloud called national security.”152
In disposing of the issue on statutory grounds, the Court also cited the
President’s role as Commander in Chief and said that the President’s authority to
protect classified information “flows primarily from this constitutional investment
of power in the President and exists quite apart from any explicit congressional
grant.”153 The constitutional issue would have been joined had the Court faced
statutory language that the administration objected to as an interference with
executive power. That issue was not present in Egan.
The District Court’s Decision
Having relied on Egan, Judge Gasch also looked to language in the Supreme
Court’s Curtiss-Wright decision.154 From the latter case Judge Gasch concluded that
the “sensitive and complicated role cast for the President as this nation’s emissary in
foreign relations requires that congressional intrusion upon the President’s oversight
of national security information be more severely limited than might be required in
matters of purely domestic concern.”155
The central issue in Curtiss-Wright was the scope of congressional power. The
Court was asked how broadly Congress could delegate its powers to the President in
the field of foreign affairs. The previous year the Court had struck down the National
Industrial Recovery Act because it had delegated an excessive amount of legislative
power to the President in the field of domestic policy.156 The question before the
Court in Curtiss-Wright was whether Congress could use more general standards in
foreign affairs than it could in domestic affairs, and the Court said it could.
Several courts have remarked on Justice Sutherland’s views in Curtiss-Wright
regarding the scope of presidential power in foreign relations. In the Steel Seizure
Case of 1952, Justice Robert Jackson noted that “much of the [Sutherland] opinion
is dictum” — comments extraneous to the issue before the Court.157 In 1981, a
federal appellate court cautioned against placing undue reliance on “certain dicta” in
Sutherland’s opinion: “To the extent that denominating the President as the ‘sole
organ’ of the United States in international affairs constitutes a blanket endorsement
152 Transcript of Oral Argument, Dec. 2, 1987, at 19.
153 484 U.S. at 527.
154 United States v. Curtiss-Wright Corp., 299 U.S. 304 (1936).
155 688 F.Supp. at 685.
156 Schechter Corp. v. United States, 295 U.S. 495 (1935); Panama Refining Co. v. Ryan,
157 Youngstown Co. v. Sawyer, 343 U.S. 579, 636 n. 2 (1952) (concurring op.).
of plenary Presidential power over any matter extending beyond the borders of this
country, we reject that characterization.”158
On October 31, 1988, the Supreme Court noted probable jurisdiction in the case
decided by Judge Gasch, now styled American Foreign Service Assn. v. Garfinkel.159
Both the House and the Senate submitted briefs protesting Judge Gasch’s analysis of
the President’s powers over foreign affairs. During oral argument, the Justice
Department spoke repeatedly about the President’s constitutional role to control
classified information. The attorney for AFSA challenging the Reagan nondisclosure
policy objected that the decision by Judge Gasch, “by declaring that the Executive
Branch has such sweeping power, has impeded the kind of accommodation that
should take place in this kind of controversy,” and hoped that the Court “wipes that
decision off the books.”160
On April 18, 1989, the Court issued a per curiam order that vacated Judge
Gasch’s order and remanded the case for further consideration.161 In doing so, the
Court cautioned Judge Gasch to avoid expounding on constitutional matters:
“Having thus skirted the statutory question whether the Executive Branch’s
implementation of [Nondisclosure] Forms 189 and 4193 violated § 630, the court
proceeded to address appellees’ [the government’s] argument that the lawsuit should
be dismissed because § 630 was an unconstitutional interference with the President’s
authority to protect the national security.”162 The Court counseled Judge Gasch that
the district court “should not pronounce upon the relative constitutional authority of
Congress and the Executive Branch unless it finds it imperative to do so. Particularly
where, as here, a case implicates the fundamental relationship between the Branches,
courts should be extremely careful not to issue unnecessary constitutional rulings.”163
On remand, Judge Gasch held that the plaintiffs (American Foreign Service
Association and Members of Congress) failed to state a cause of action for courts to
decide.164 Having dismissed the plaintiffs’ complaint on that ground, Judge Gasch
found it unnecessary to address any of the constitutional issues.165
Funding Restrictions (Nondisclosure Forms)
Congress continues to enact provisions in appropriations bills to deny funds to
implement nondisclosure forms. Legislation enacted on January 23, 2004 provided
158 American Intern. Group v. Islamic Republic of Iran, 657 F.2d 430, 438 n.6 (D.C. Cir.
159 488 U.S. 923 (1988).
160 Transcript of Oral Argument, March 20, 1989, at 60.
161 American Foreign Service Assn. v. Garfinkel, 490 U.S. 153 (1989).
162 Ibid., at 158.
163 Ibid., at 161.
164 American Foreign Service Ass’n v. Garfinkel, 732 F.Supp. 13 (D.D.C. 1990).
165 Ibid., at 16.
that no funds appropriated in the Consolidated Appropriation Act for fiscal 2004, or
in any other statute, “may be used to implement or enforce the agreements in
Standard Forms 312 and 4414 of the Government or any other nondisclosure policy,
form, or agreement if such policy, form, or agreement does not contain the following
provisions: ‘These restrictions are consistent with and do not supersede, conflict
with, or otherwise alter the employee obligations, rights or liabilities created’” by the
Lloyd-LaFollette Act (5 U.S.C. § 7211), the Military Whistleblower Protection Act,
the Whistleblower Protection Act, the Intelligence Identities Protection Act, and
other statutes that enable Congress to receive information from agency employees.
Notwithstanding that provision, a nondisclosure policy form or agreement that is
executed by a person connected with the conduct of an intelligence or intelligence-
related activity, other than an employee or officer of the federal government, “may
contain provisions appropriate to the particular activity for which such document is
to be used.” Such form or agreement shall, at a minimum, require that the person
“will not disclose any classified information received in the course of such activity
unless specifically authorized to do so by the United States Government.”
Furthermore, such nondisclosure forms “shall also make it clear that they do not bar
disclosures to Congress or to an authorized official or an executive agency or the
Department of Justice that are essential to reporting a substantial violation of law.”166
That language also appears in the Transportation, Treasury appropriations law
enacted on November 30, 2005.167
Funding Restrictions (Access to Congress)
Also in annual appropriations acts, Congress adopts language to deny funds to
pay the salary of any executive official who prevents agency employees from
communicating with a Member of Congress, committee or subcommittee. Language
in the Consolidated Appropriations Act for fiscal 2004 provided that no part of any
appropriation contained in that statute or any other would be available for the
payment of the salary of any federal government officer or employee who “(1)
prohibits or prevents, or attempts or threatens to prohibit or prevent, any other officer
or employee of the Federal Government from having any direct oral or written
communication or contact with any Member, committee, or subcommittee of the
Congress in connection with any matter pertaining to the employment of such other
officer or employee or pertaining to the department or agency of such officer or
employee in any way, irrespective of whether such communication or contact is at
the initiative of such other officer or employee or in response to the request or inquiry
of such Member, committee, or subcommittee.” Funds are also denied for the
payment of the salary of any federal officer or employee who “(2) removes, suspends
from duty without pay, demotes, reduces in rank, seniority, status, pay, or
performance of efficiency rating, denies promotion to, relocates, reassigns, transfers,
disciplines, or discriminates in regard to any employment right, entitlement, or
benefit, or any term or condition of employment of, any other officer or employee of
the Federal Government, or attempts or threatens to commit any of the foregoing
actions with respect to such other officer or employee, by reason of any
166 188 Stat. 355, § 620 (2004).
167 P.L. 109-115, § 820 (2005).
communication or contact of such other officer or employee with any Member,
committee, or subcommittee as described in paragraph (1).”168 That language appears
also in the Transportation, Treasury appropriations statute for fiscal 2006.169
OLC Opinion in 1996
On November 26, 1996, the Office of Legal Counsel (OLC) in the Justice
Department issued an eight-page opinion on “(1) the application of executive branch
rules and practices on disclosure of classified information to Members of Congress,
in light of relevant congressional enactments; (2) the applicability of the170
Whistleblower Protection Act; and (3) the applicability of Executive Order 12674.”
Executive Order 12674, signed by President Bush on April 12, 1989, established
“Principles of Ethical Conduct for Government Officers and Employees.” The
principles included: “Employees shall disclose waste, fraud, abuse and corruption
to appropriate authorities.”171 The executive order defines “employee” to mean “any172
officer or employee of an agency, including a special Government employee,” and
defines “agency” to mean “any executive agency as defined in 5 U.S.C. 105,
including any executive department as defined in 5 U.S.C. 101, Government
corporation as defined in 5 U.S.C. 103, or an independent establishment in the
executive branch as defined in 5 U.S.C. 104 (other than the General Accounting
Office), and the United States Postal Service and Postal Rate Commission.”173
“Appropriate authorities” is not defined in the executive order.
Oversight of Intelligence Community
The question before the OLC was whether this executive order authorized an
agency employee to disclose “waste, fraud, abuse and corruption” to a Member of
Congress, particularly “members of oversight committees with direct interest in such
abuse and corruption.”174 The context of the memorandum focused on oversight
committees that have jurisdiction over the Intelligence Community. OLC did “not
question that in certain circumstances the term [“appropriate authorities”] could
include a member of a congressional oversight committee.” However, OLC
concluded that the question of who is an “appropriate authority” to receive classified
information “is governed by Executive Order 12356 and the related directives and
168 118 Stat. 354, § 618 (2004).
169 P.L. 109-115, § 818 (2005).
170 Memorandum for Michael J. O’Neil, General Counsel, Central Intelligence Agency, from
Christopher H. Schroeder, Acting Assistant Attorney General, “Access to Classified
Information,” Nov. 26, 1996, at 1 (hereafter cited as OLC Memo). Available from author.
171 Section 101(k) in Executive Order 12674, 54 Fed. Reg. 15159 (1989).
172 Ibid., at 15161 (§ 503(b)).
173 Ibid., at § 503(c)).
174 OLC Memo, at 7-8.
practices.” The latter executive order “should control because it more directly and
specifically addresses the subject at issue, the disclosure of classified information.”175
Executive Order 12356, signed by President Reagan on April 2, 1982, governed
the handling of classified information in the executive branch.176 OLC was asked to
address the relationship between that executive order and two congressional
enactments concerning the rights of federal employees to provide information to
Congress: the Lloyd-LaFollette Act and the annual provision that prohibited the use
of appropriated funds to implement or enforce the nondisclosure agreement policy.
Reach of Lloyd-LaFollette
OLC cited the Justice Department’s brief in the Garfinkel case to the Supreme
Court, where the department held that a congressional enactment would be
unconstitutional if it were interpreted “to divest the President of his control over
national security information in the Executive Branch by vesting lower-ranking
personnel in that Branch with a ‘right’ to furnish such information to a Member of
Congress without receiving official authorization to do so.”177 In effect, this position
would support restraints such as those in the executive orders issued by Presidents
Roosevelt and Taft, at least with respect to classified information. OLC concluded
that Lloyd-LaFollette does not confer a right to furnish national security information
to Congress, the nondisclosure agreements may be validly applied to a disclosure to
a Member of Congress, and the appropriations language “does not authorize any
disclosure to a Member of Congress that is not permitted under Executive Order
“Need to Know” by Lawmakers
OLC was also asked whether Executive Order 12356 could be read to permit a
cleared employee of the executive branch “to disclose classified information to a
cleared member of Congress based on the employee’s determination of the member’s179
need to know.” OLC noted that Members of Congress, as constitutionally elected
officers, do not receive security clearances but are instead presumed to be
trustworthy. However, lawmakers are not exempt “from fulfilling the ‘need-to-
know’ requirement.” On the issue whether individual employees “are free to make
a disclosure to Members of Congress based on their own determination on the need-
to-know question,” OLC said that the answer “is most assuredly ‘no.’”180 The
determination of “need to know” regarding disclosures of classified information to
Congress “is made through established decisionmaking channels at each agency.”
OLC stated the opinion that it would be “antithetical to the existing system for an
175 Ibid., at 8.
176 47 Fed. Reg. 14874 (1982).
177 OLC Memo, at 3.
178 Ibid., at 4.
179 Ibid., at 5.
agency to permit individual employees to decide unilaterally to disclose classified
information to a Member of Congress — and we are unaware of any agency that does
Regarding the WPA, OLC was asked whether denial or revocation of a Sensitive
Compartmented Information (SCI) security clearance is a “personnel action” within
the meaning of the WPA. Citing such cases as the Supreme Court’s decision in Egan
and McCabe v. Department of the Air Force, decided by the Court of Appeals for the
Federal Circuit, OLC concluded that the revocation of a security clearance is not a
personnel action within the meaning of the WPA.182
OLC also examined language in Title 5, under prohibited personnel practices,
that nothing in that subsection shall be construed “to authorize the withholding of
information from the Congress or the taking of any personnel action against an
employee who discloses information to the Congress.”183 OLC said the Justice
Department in Garfinkel had rejected the argument that the quoted language
conferred an affirmative right to make disclosures of classified information to
Members of Congress. Subsection 2302(b)(8)(B) discussed disclosures of classified
information only to inspectors general or the Office of Special Counsel of the MSPB.
CIA Whistleblower Act of 1998
OLC’s memorandum prompted Congress to hold hearings and analyze the
Administration’s position that the President exercises exclusive control over the
disclosure of classified information, including disclosure to Members of Congress
and its committees. The Senate Intelligence Committee asked CRS to evaluate184
OLC’s statutory and constitutional conclusions, and that analysis was published.
The Committee also held two days of hearings.185 The Justice Department continued
to hold that bills drafted to assure congressional access to classified information,
submitted to Congress by intelligence community employees without the permission
of their supervisors, were unconstitutional.
181 Ibid., at 6.
183 5 U.S.C. § 2302(b) (2000).
184 Prepared statement by Louis Fisher, Congressional Research Service, “Executive
Employee Access to Congress,” reprinted in “Disclosure of Classified Information tothnd
Congress,” hearings before the Senate Select Committee on Intelligence, 105 Cong., 2
sess. 5-13 (1998).
185 Ibid., at 5-37 (testimony by Louis Fisher, CRS, and Peter Raven-Hansen, George
Washington University Law School) and 39-61 (Louis Fisher and Randolph D. Moss,
Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice).
The Senate Bill
The Senate Intelligence Committee unanimously reported legislation after
commenting that the Administration’s “intransigence on this issue compelled the
Committee to act.”186 The Senate bill would have directed the President to inform
employees within the intelligence community that it is not prohibited by law,
executive order, or regulation, nor contrary to public law, to disclose certain
information, including classified information, to an appropriate committee of
Congress.187 The purpose of the bill was to make employees within the intelligence
community aware that they may, without seeking or obtaining prior authorization
from an agency supervisor, disclose certain information to Congress, including
classified information, when they have reason to believe that the information is
specific and direct evidence of “a violation of law, rule or regulation; a false
statement to Congress on an issue of material fact; or gross mismanagement, a gross
waste of funds, a flagrant abuse of authority, or a substantial and specific danger to
public health or safety.”188
The House Bill
The House Intelligence Committee held two days of hearings on a bill that
provided an alternative procedure for gaining information from national security189
whistleblowers. Chairman Porter J. Goss made these opening comments:
The present arrangement, or lack of arrangement, for whistleblowers in our
[intelligence] community is not the answer. CIA, as I understand, has no written
regulation in place and NSA had one that was disavowed by the current
administration. I know of no regulation or system within the Intelligence
Community that ensures the confidentiality of the whistleblower. There is no
legal protective mechanism for an IC whistleblower against official and
unofficial retaliation of which I am aware. Nothing currently gives him a right
to be heard directly by the intelligence committees.
I think the only exception I can think of might be one under clauses of the Agent
Identities Protection Act, which is a very narrow area.
The result of this system is unacceptable. Employees of the IC may, at present,
have to take huge chances with classified documents, compartmented
information and their careers in order to come down to report to us.... Worst of
all, from an institutional point of view, is that very few employees dare to run190
this gauntlet to bring us the information we need to do appropriate oversight.
186 S.Rept. 105-165, 105th Cong., 2nd sess. 5 (1998).
187 Ibid., at 1.
189 House Permanent Select Committee on Intelligence, “Record of Proceedings on H.R.
(1999) [Hearings on May 20 and June 10, 1998].
190 Ibid., at 2.
“Sole Process” and “Holdback”
Chairman Goss identified two central issues in the legislation. One was the
question whether CIA employees should report their concerns only to the inspector
general. Was the IG to be the “sole process” by which an employee may report a
serious or flagrant problem to Congress? Second, should the head of an intelligence
agency have a “holdback” power? That is, should the agency head be authorized to
block a whistleblower’s complaint “in the exceptional case and in order to protect
vital law enforcement, foreign affairs on national security interest.”191
When the House bill was reported it was decided that the IG mechanism for
whistleblowers should not be the “sole process” for them to report wrongdoing to
Congress. The House bill would provide an additional procedure to the existing IG
route.192 The House Intelligence Committee recognized that some agency employees
might “choose not to report a problem either through the process outlined [in the bill]
or through another process authorized by their management, but instead approach the
committee directly.”193 The committee also decided to eliminate the “holdback”
provision. Agency heads would not have the authority to block disclosures by agency
employees to Congress. A statutory acknowledgment of holdback authority was
dropped because it was considered “unwarranted and could undermine important
Authority Over Classified Information
Like the Senate, the House Intelligence Committee rejected the Administration’s
“assertion that, as Commander in Chief, the President has ultimate and unimpeded
constitutional authority over national security, or classified, information. Rather,
national security is a constitutional responsibility shared by the executive and
legislative branches that proceeds according to the principles and practices of195
comity.” Consistent with that position, the committee rejected the theory that the
President, as Chief Executive, “has a constitutional right to authorize all contact
between executive branch employees and Congress.” The issue of whether an agency
employee “must ‘ask the boss’ before approaching the intelligence committees with
unclassified information about wrongdoing seems well below any constitutional
threshold.”196 The handling of classified information was addressed in the bill that
191 Ibid., at 4.
192 H.Rept. 105-747 (Part 1), 105th Cong., 2nd sess. 13 (1998).
193 Ibid., at 20.
194 Ibid., at 14.
195 Ibid., at 15.
The two houses worked out their differences in conference committee and
reported the Intelligence Community Whistleblower Protection Act as Title VII to
the Intelligence Authorization Act for Fiscal Year 1999. The compromise bill
established “an additional process to accommodate the disclosure of classified
information of interest to Congress.” The new procedure was not “the exclusive
process by which an Intelligence Community employee may make a report to
Congress.” The conference report stated that “the managers agree that an Intelligence
Community employee should not be subject to reprisals or threats of reprisals for
making a report to appropriate Members or staff of the intelligence committees about
wrongdoing within the Intelligence Community.”197 The statute covered
communications from the agency to Capitol Hill through the intelligence committees.
The statutory language lists six findings: “(1) national security is a shared
responsibility requiring joint efforts and mutual respect by Congress and the
President; (2) the principles of comity between the branches of Government apply to
the handling of national security information; (3) Congress, as a co-equal branch of
Government, is empowered by the Constitution to serve as a check on the executive
branch; in that capacity, it has a “need to know” of allegations of wrongdoing within
the executive branch, including allegations of wrongdoing in the Intelligence
Community; (4) no basis in law exists for requiring prior authorization of disclosures
to the intelligence committees of Congress by employees of the executive branch of
classified information about wrongdoing within the Intelligence Community; (5) the
risk of reprisal perceived by employees and contractors of the Intelligence
Community for reporting serious or flagrant problems to Congress may have
impaired the flow of information needed by the intelligence committees to carry out
oversight responsibilities; and (6) to encourage such reporting, an additional
procedure should be established that provides a means for such employees and
contractors to report to Congress while safeguarding the classified information
involved in such reporting.”198
Under the procedures set forth in the statute, an employee or contractor of the
CIA “who intends to report to Congress a complaint or information with respect to
an urgent concern may report such complaint or information to the Inspector
General.”199 The language “may report” is consistent with the congressional rejection
of the IG office as being the “sole process” for reporting complaints.
The statute defines “urgent concern” to mean any of the following: (1) “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
involving classified information, but does not include differences of opinion
concerning public policy matters”; (2) “A false statement to Congress, or a willful
withholding from Congress, or an issue of material fact relating to the funding,
197 H.Rept. 105-780, 105th Cong., 2nd sess. 34 (1998).
198 112 Stat. 2413-14, § 701 (1998).
199 Ibid., at 2414, § 702 (a)(1).
administration, or operation of an intelligence activity”; and (3) “An action, including
a personnel action described in section 2302(a)(2)(A) of title 5, United States Code,
constituting reprisal or threat of reprisal prohibited under subsection (e)(3)(B) in
response to an employee’s reporting an urgent concern in accordance with this
Upon receiving the complaint or information, the IG has 14 calendar days to
determine whether it appears credible. If the IG decides it is, the complaint must be
transmitted to the CIA Director who has seven calendar days to forward the matter
to the intelligence committees. If the IG does not transmit the complaint or
information, or does not transmit it in an accurate form, the employee may submit the
matter to Congress by contacting either or both of the intelligence committees. The
statute provides for no “holdback” procedure.
In 2001, Congress enacted modifications to this statute.200 The changes relate
to communications between the IG and the director as to whether a complaint from
an agency employee appears credible, and the authority of employees to contact the
intelligence committees when the IG does not find the complaint credible.
The Richard Barlow Case
In 2002, the U.S. Court of Federal Claims decided the case of Richard Barlow,
who in the late 1980s faced termination from the Defense Department and suspension
of security clearances following disputes within the executive branch, and between
the executive branch and Congress, about Pakistan’s nuclear capabilities. Some
central questions reportedly were whether executive officials had misled lawmakers,
in secret briefings, regarding Pakistan’s activities, and whether the Reagan
Administration had improperly certified to Congress that Pakistan did not have201
After a number of investigations by the Defense Department and several by
inspectors general and the General Accounting Office regarding retaliations against
Barlow’s whistleblower activities, a bill was introduced (S. 2274) to provide for the
relief of Barlow.202 The private bill included the sum of $1,100,000 to compensate
him for losses incurred as a consequence of “(1) personnel actions taken by the
Department of Defense affecting Mr. Barlow’s employment at the Department
(including Mr. Barlow’s top secret security clearance) during the period of August
with the Department of Defense on February 27, 1992.” On October 5, 1998, the
Senate referred the matter to the Court of Federal Claims requesting that it report
back findings of fact and conclusions “that are sufficient to inform the Congress of
200 115 Stat. 1399-00, § 309 (2001).
201 Seymour M. Hersh, “On the Nuclear Edge,” The New Yorker, March 29, 1993, at 56.
202 For a description of these investigations, see Barlow v. United States, 51 Fed.Cl. 380,
203 S. 2274, 105th Cong., 2nd sess. (1998).
the nature, extent, and character of the claim for compensation referred to in such bill
[S. 2274] as a legal or equitable claim against the United States or a gratuity.”204
State Secrets Privilege
Barlow and his attorneys, through the discovery process, sought documents
which they alleged would show that Congress had been misled about Pakistan’s
capabilities. They claimed that the evidence would show a motivation on the part of
Barlow’s supervisor in the Defense Department to take adverse personnel actions
against him for his whistleblowing. On February 10, 2000, CIA Director George
Tenet signed a declaration and formal claim of state secrets privilege and statutory
privilege. The declaration denied Barlow and his attorney access to any of the
classified intelligence information under Tenet’s control. Tenet said that it would not
be possible “to sanitize or redact in any meaningful way” the information that Barlow
sought.205 A separate declaration by Lt. Gen. Michael V. Hayden, Director of the
National Security Agency, also invoked the state secrets privilege to assert the
agency’s privilege over NSA intelligence reports and information from intelligence
reports contained in minutes of the Nuclear Export Violations Working Group
The Tenet declaration did not automatically block Barlow’s access to the
requested materials. Tenet acknowledged that the branch that decides what evidence
to admit is the judiciary, not the executive branch: “I recognize it is the Court’s
decision rather than mine to determine whether requested material is relevant to
matters being addressed in litigation.”207 The Hayden declaration did not contain that
language, but courts have discretion to determine whether an executive claim of state
secrets privilege should be treated as absolute or as qualified. The Court of Federal
Claims had several options. It could have ordered the government to provide a full
public account of why disclosure of the information would harm national security.208
It could have conducted “an in camera examination of the requested materials”209 and
also asked that sensitive material be redacted to permit access by Barlow.
204 144 Cong. Rec. 23357 (1998).
205 Declaration and Formal Claim of State Secrets Privilege and Statutory Privilege by
George J. Tenet, Director of Central Intelligence, Feb. 10, 2000, Barlow v. United States,
Congressional Reference No. 98-887X, at 9 (hereafter cited as “Tenet Declaration”).
Available from author.
206 “Declaration of Lieutenant General Michael V. Hayden, United States Air Force,
Director of the National Security Agency, Feb. 2000, Barlow v. United States,
Congressional Reference No. 98-887X. Available from author.
207 Tenet Declaration, at 7.
208 Ellsberg v. Mitchell, 709 F.2d 51, 60-64 (D.C. Cir. 1983).
209 Ibid., at 64.
Options for the Court
In a decision filed July 18, 2000, and reissued August 3, 2000, the Court of
Federal Claims initially acknowledged that the state secrets privilege was qualified,
not absolute. Although it noted that some courts have held that state secrets are
“absolutely privileged from disclosure in the courts,”210 it stated that “the mere formal
declaration of the privilege does not end the court’s inquiry.”211 Toward the end of
this analysis, however, the court ruled that state secrets were absolute: “The privilege
is absolute, the law having evolved to reflect a choice of secrecy over any balancing
of risks and harms.”212 The court concluded that the documents sought by Barlow,
“to the extent not already produced or located, are privileged in toto.”213
The court continued the trial and allowed the government to introduce the
documents and testimony to support its case, while at the same time denying Barlow
access to documents and testimony he requested to support his position. On May 4,
2000, Barlow’s attorneys, Paul C. Warnke and Diane S. Pickersgill, objected that the
state secrets privilege should not apply to congressional reference cases to prevent
Barlow and the court access to “key evidence.”214 Warnke and Pickersgill argued that
the court should review the documents in camera.215 They noted that the Senate had
ordered the court to “make a determination of the merits” of Barlow’s claim for
compensation and that the information he sought in discovery was “necessary for this
Court to make a fully-informed decision and thus a fully-informed recommendation
In the January 14, 2002, ruling, the court recognized that there had been a217
“temporary suspension” of Barlow’s security clearance. In Egan, the plaintiff’s
security clearance had been revoked. The court stated that in Egan the Supreme
Court held that “the authority to protect classified information remains within the
Executive Branch,” determinations about security clearances are an attempt to predict
an individual’s future behavior, and that such “‘[p]redictive judgment of this kind
must be made by those with the necessary expertise in protecting classified
210 Barlow v. United States, No. 98-887X, 2000 WL 1141087, at 4, citing Halkin v. Helms,
211 Barlow v. United States, 2000 WL 1141087, at 4.
212 Ibid., at 8-9.
213 Ibid., at 9.
214 Plaintiff’s Opposition to Defendant’s Motion for a Protective Order, Barlow v. United
States, Congressional Reference No. 98-887 X, at 1.
215 Ibid., at 9.
216 Ibid., at 14.
217 Barlow v. United States, 51 Fed.Cl. at 393.
information’ and, in turn, not by the courts.”218 The court then concluded: “Basing
a claim to relief in any way on the suspension of the clearance would inevitably draw
the court into improperly second guessing executive branch offices in a highly
discretionary function. We decline to do so.”219
The Supreme Court in Egan supported the discretionary judgment of the
executive branch to determine security clearances and to revoke them. The Court’s
decision did address the question of whether a court may examine, in camera,
classified documents to determine whether they were properly withheld from a
plaintiff under the state secrets privilege.
In 2000, Congress passed a bill that would have established criminal penalties
for leaking classified information. Fines and imprisonment for up to three years were
included to punish any current or former government employee who “knowingly and
willfully discloses, or attempts to disclose,” any classified information to a person not
authorized to receive the information, “knowing that the person is not authorized220
access to such classified information.” Criminal liability did not apply to the
disclosure of classified information to federal judges established under Article III or
to any Member or committee of Congress.
During House debate on the bill reported from conference committee, several
Members referred to it as an “official secrets” law.221 One Member said it would222
intimidate whistleblowers. Another thought it “would silence whistleblowers in
a way that has never before come before this body and which has never before been223
enacted.” Another disagreed: “I do not think that is true at all. First of all, whistle-
blowers are protected under the current law. Secondly, whistle-blowers who have a
concern about whether information is properly classified or there is a concern about
the agency that they are working for, can come to Congress.”224 Similarly, another
Member regarded whistleblowers as protected by the bill “[s]o long as they come
218 Ibid., at 394 (internal quote from Egan, 484 U.S. at 528).
220 Section 304 of H.R. 4392, as reported from conference committee; H.Rept. 106-969,
221 146 Cong. Rec. 22390 (Rep. Pelosi) and 22394 (Rep. Barr) (2000). In 1889, Great
Britain enacted an Official Secrets Act to punish individuals who leak government secrets.
It was revised in 1911, 1920, 1939, and 1989.
222 Ibid., at 22393 (Rep. Conyers).
223 Ibid., at 22394 (Rep. Barr).
224 Ibid., at 22395 (Rep. Hutchinson).
forward with matters that are security matters about which they are concerned and
they disclose them to people who are cleared to received such information.”225
This debate raised the possibility that leaking information to the press would put
reporters at risk. One Member stated that “this [bill] does not pertain to the news
media.”226 Another saw “nothing [in the bill] to prevent reporters from being hauled
in before grand juries and being forced to reveal their sources.”227 Chief executives
of four of the largest news organizations (CNN, the New York Times, Newspaper
Association of America, and the Washington Post) wrote to President Clinton, urging
him to veto the bill. The Radio-Television News Directors Association also joined
in this appeal to President Clinton.228
President Clinton vetoed the bill on November 4, 2000. Among other points,
he said that the bill “was passed without benefit of public hearings — a particular
concern given that it is the public that this law seeks ultimately to protect. The
Administration shares the process burden since its deliberations lacked the
thoroughness this provision warranted, which in turn led to a failure to apprise the
Congress of the concerns I am expressing today.”229
Legislation has been introduced in the House and the Senate to make changes
in the Whistleblower Protection Act. S. 494, called the Federal Employee Protection
of Disclosures Act, was introduced on March 2, 2005, and reported from the
Committee on Homeland Security and Governmental Affairs on May 25. The
purpose is “to clarify the disclosures of information protection from prohibited
personnel practices, require a statement in nondisclosure policies, forms, and
agreements that such policies, forms, and agreements conform with certain disclosure
protections, provide certain authority for the Special Counsel, and for other
In reporting the bill, the Senate Committee on Homeland Security and
Governmental Affairs noted that the terrorist attacks of 9/11 “have brought renewed
attention to those who disclose information regarding security lapses at our nation’s
225 Ibid. (Rep. Lewis).
226 Ibid. (Rep. Hutchinson).
227 Ibid. (Rep. Pelosi).
228 Raymond Bonner, “News Organizations Ask White House to Veto Secrecy Measure,”
New York Times, Nov. 1, 2000, at A32.
229 Public Papers of the Presidents, 2000-2001, III, at 2467. See also John M. Broder,
“President Vetoes Measure to Punish Disclosing Secrets,” New York Times, Nov 5, 2000,
at 1; Walter Pincus, “Clinton Vetoes Bill Targeting Leaks of Classified Information,”
Washington Post, Nov. 5, 2000, at A5.
230 S. 494, 109th Cong., 1st sess. 1-2 (2005), as reported by the Committee on Homeland
Security and Governmental Affairs.
airports, borders, law enforcement agencies, and nuclear facilities.” It further states
that the right of federal employees to be free from agency retaliation “has been
diminished as a result of a series of decisions of the Federal Circuit Court of Appeals
that have narrowly defined who qualifies as a whistleblower under the WPA and
what statements are considered protected disclosures.”231 The bill is designed to
clarify that disclosures of classified information to appropriate committees of
Congress are protected, to codify the “anti-gag” provision that Congress has placed
in annual appropriations bills to protect agency employees who come forward with
disclosures of illegality, to authorize the OSC to file amicus briefs in whistleblower
cases, and to allow whistleblower cases to be heard by all federal appellate courts for
a period of five years.232
The committee report also discusses a provision in the bill that relates to
whistleblower actions after 9/11, when agency employees “in several high profile
cases have come forward to disclose government waste, fraud, and abuse that posed
a risk to national security,” but then faced retaliatory action by having their security
clearance removed. The Federal Circuit had held that the MSPB lacks jurisdiction
over an employee’s claim that his security clearance was revoked in retaliation for
whistleblowing. Former Special Counsel Elaine Kaplan testified in 2001 that
revoking a security clearance “can be a basis for camouflaging retaliation.”233 The
Senate bill makes it a prohibited personnel practice for a manager to suspend, revoke,
or take other actions regarding an employee’s security clearance or access to
classified information in retaliation for whistleblowing. Further, the bill provides for
expedited review of whistleblower cases by the OSC, the MSPB, and the reviewing
cases where a security clearance has been revoked or suspended.234
The Justice Department regards this provision as an intrusion into the
President’s prerogative to control national security information and those who have
access to it. The committee regards executive branch authority over classified
material as “not exclusive, and that Congress properly plays a role.”235 The
committee cites Egan for support (“unless Congress has specifically provided
otherwise, courts traditionally have been reluctant to intrude upon the authority of the
Executive in military and national security affairs”).236
Title 5 has included a provision (Section 2302(b)) that nothing in the subsection
shall be construed to authorize the withholding of information from Congress or the
taking of any personnel action against an agency employee who discloses information
to Congress. The Senate bill provides that a whistleblower must limit the disclosure
to a Member of Congress who is authorized to receive the information or to a
231 Ibid., at 2.
233 Ibid., at 15.
234 Ibid., at 16.
236 Ibid. (emphasis added by committee).
legislative staffer who holds the appropriate security clearance and is authorized to
receive the information.237
H.R. 1317, introduced on March 15, 2005, contains a number of provisions
similar to S. 494, including clarification of disclosures that are protected from
prohibited personnel practices and a statement to be placed in nondisclosure forms.
The House bill directs the Comptroller General to conduct a study of security
clearance revocations in whistleblower cases after 1996. H.R. 1317 was marked up
on September 29, 2005, and ordered to be reported.
To perform its legislative and constitutional functions, Congress depends on
information (domestic and national security) available from the executive branch.
The Supreme Court remarked in 1927 that a legislative body “cannot legislate wisely
or effectively in the absence of information respecting the conditions which the
legislation is intended to affect or change; and where the legislative body does not
itself possess the requisite information — which not infrequently is true — recourse238
must be had to those who do possess it.” Congress needs information to pass
legislation, oversee the administration of programs, inform the public, and carry out
its constitutional duties.
Balancing this legislative need for information with the protection of sensitive
national security information remains a continuing policy issue. Congress has never
accepted the theory that the President has exclusive, ultimate, and unimpeded
authority over the collection, retention, and dissemination of national security
information. Agency heads provide Congress with information, but some Members
of Congress have also expressed a need to receive information directly from rank-
and-file employees within an agency. Whistleblowers have helped uncover agency
wrongdoing, illegalities, waste, and corruption. The interest of Congress in
maintaining an open channel with agency employees is demonstrated through such
statutes as Lloyd-LaFollette, the appropriations riders on the nondisclosure policy,
the Military Whistleblower Protection Act, and the Intelligence Community
Congress also recognizes the need to protect national security information,
especially that related to sources and methods, from disclosure. This awareness is
reflected in legislation that allows and encourages intelligence community employees
to report issues of waste, fraud, or mismanagement to the intelligence committees of
237 Ibid., at 18.
238 McGrain v. Daugherty, 273 U.S. 135, 175 (1927).
Appendix: Whistleblower Organizations
Several organizations have been active with whistleblowing issues. They testify
before congressional committees, provide assistance with litigation, and offer other
services. Some of these organizations cover whistleblowing in general. Others focus
on national security whistleblowing. From October 9 to October 12, 2005, in
Chincoteague, Va., the first annual National Security Whistleblowers Conference
was held. It was sponsored by the National Security Whistleblower Coalition, the
Cavallo Foundation, Harriet Crosby, the Fertel Foundation, the Fund for
Constitutional Government, and Project on Government Oversight. The purpose was
to bring together national security whistleblowers to learn from each other, to find
collective support for their efforts, and to develop strategies.
Government Accountability Project (GAP)
Founded in 1977, GAP is a non-profit, public interest organization and law firm
that receives funding from foundations, individuals, and legal fees. It describes its
mission as protecting the public interest by promoting government and corporate
accountability through advancing occupational free speech and ethical conduct,
defending whistleblowers, and empowering citizen activists. It litigates
whistleblower cases, publicizes whistleblower concerns, and develops policy and
legal reforms for whistleblower laws. Much of its work has been in the area of
nuclear oversight, food and drug safety, worker health and safety, international
reform and national security.239
National Security Whistleblowers Coalition
The coaliton is a nonpartisan organization dedicated to aiding national security
whistleblowers. Its stated mission is to advocate governmental and legal reform,
educate the public concerning whistleblowing activity, provide comfort and
fellowship to national security whistleblowers subject to retaliation, and work with
other public interest organizations to effect goals defined in the organization’s
mission statement. Its membership consists exclusively of current or former federal
employees or civilians working under contract to the United States who, to their
detriment and personal risk, bring to light fraud, waste, and abuse in government
operations and agencies related to national security.240
National Whistleblower Center
The National Whistleblower Center is a non-profit, tax-exempt, educational, and
advocacy organization dedicated to helping whistleblowers. Since 1988, it states it
has used whistleblowers’ disclosures to improve environmental protection, nuclear
safety, and government and corporate accountability. The primary goal of the center
is to ensure that disclosures about government or industry actions that violated the
law or harm the environment are fully heard, and that the whistleblowers who risk
239 For information on GAP, see [http://www.whistleblower.org/about/index.cfm].
240 See [http://www.nswbc.org].
their careers to expose wrongdoing are defended. In addition to assisting
whistleblowers, the center lobbies Congress on the need to protect whistleblowers
and insists that officials be held fully accountable for their conduct. The center
maintains a national referral service and sponsors litigation.241
Project On Government Oversight (POGO)
POGO began in 1981 as an independent, non-profit organization that
investigates and exposes corruption in order to achieve a more accountable federal
government. It operates on the principle that representation and accountability are
fundamental to maintaining a strong and functioning democracy. Initially it was
known as the Project on Military Procurement. It is committed to exposing waste,
fraud and corruption in the following areas: defense, homeland security, energy and
environment, contract oversight, and open government. POGO’s “Contract
Oversight Investigations” examine the federal government’s policies and
relationships with grant recipients as well as major companies that receive billions
of dollars in contracts and subsidies annually.
241 See [http://www.whistleblowers.org].