How the New Whistleblower Law Might Help the Administration Keep a Lid on Leaks

January 17, 2013

The Obama Administration has been notoriously hostile toward leaks and has been accused of doing “more than any modern executive to wage war on whistleblowers.” Why, then, would the Administration go out of its way to not only sign the Whistleblower Protection Enhancement Act in December, but also to write a Presidential Policy Directive explicitly creating protections for whistleblowers in the intelligence community?

The answer likely lies in understanding the 2006 Supreme Court decision in Garcetti v. Ceballos. That decision carved out a peculiar exception to the First Amendment for certain public employees, essentially giving them an incentive to go public with any concerns about corruption or abuse, rather than complaining internally, up the chain of command. For an administration intent on preventing public leaks, this incentive structure is entirely backward.

The First Amendment gives citizens the right to be free from government retaliation for speaking out on any “matters of public concern.” Prior to 2006, a public employee who complained about such matters therefore could not face retaliation from her employer. The Supreme Court back then was clear that there were good public policy rationales for this: public employees “are, as a class, the members of a community most likely to have informed and definite opinions” about matters of public concern, and thus it was “essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.”

The Court changed its tune somewhat in 2006, when it decided Garcetti v. Ceballos. That case involved a Los Angeles DA who complained to his supervisors that a search warrant in a criminal case had been wrongly obtained. The Court reasoned that this case was different than those that had come before, because the DA was complaining internally, rather than to a newspaper or other public outlets. The Court’s concern was that “[g]overnment employers, like private employers, need a significant degree of control over their employees’ words and  actions; without it, there would be little chance for the efficient provision of public services.” How could one reasonably expect to run a DA’s office with an employee who insists that criminal cases (based on improperly obtained search warrants) be dismissed?

The Court decided that public employees acting “pursuant to their official job duties” stop being citizens for First Amendment purposes. A DA complaining to his boss about criminal procedure is therefore not a citizen — it is his job to be concerned about such things and raise those concerns through the proper channels. If he had gone to the Washington Post, however, he would be a citizen. Going to the press with complaints about the prosecutor’s office is decidedly not a part of a DA’s job description. Thus, public employees who had a legitimate complaint on a “matter of public concern,” like corruption or abuse of authority, were better off calling up the media than going to their bosses.

This puts federal government employees in a tough spot. Not only can they face retaliation for internal complaints under Garcetti, they may well face criminal prosecution for external complaints, if those complaints include even a whiff of sensitive information. Thomas Drake, a former NSA employee at one point faced up to 35 years in prison for leaking possibly classified information to the Baltimore Sun, even though he claimed to have been meticulous in ensuring that nothing he said was classified. In an age of increasing classification, it may be harder than one thinks for a potential whistleblower to discern classified from non-classified information. Moreover, the tactics undertaken during a Department of Justice investigation might be terrifying enough to deter all but the most resilient from going public.

All of this might help explain why an administration so intent on keeping information within the family might support the Whistleblower Protection Enhancement Act, signed last December. The law essentially removes the perverse incentives created by Garcetti, at least for federal employees. Such employees are now protected from retaliation for complaints of abuse and corruption, even where those complaints are internal and pursuant to the employee’s job duties.

The new law thus creates a carrot for those who complain up the chain of command—by giving them job protection—while allowing the Administration to maintain a stick for those who stray too far with sensitive information, by continuing its aggressive stance towards public whistleblowers.

The law also includes important limitations. It does not protect all speech “on matters of public concern,” for which a regular citizen would enjoy First Amendment protections. It protects speech only when it concerns “any violation of law, rule, or regulation,” “gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” So, for example, complaints about targeted killings or the use of unmanned drones might certainly constitute “matters of public concern,” but are certainly not considered illegal by the current Administration. Unless an employee can show that she “reasonably believed” these practices were illegal, she would not be protected from retaliation for complaining about it.

The law reserves to the President the power to exclude from protection the employees of any agency deemed to be primarily involved in “foreign intelligence or counterintelligence activities.” Given the expanded scope of the modern national security state, the number of agencies or departments that might fit under this rubric is undoubtedly expanding. The law also excludes members of the intelligence community. While the President countered this with a Presidential Policy Directive, he can revoke it at will, and the revocation can be classified (as are most Presidential Policy Directives). FBI employees are not protected at all. And while federal contractors are protected under the law, the President’s recent signing statement made opaque references to the Executive’s continued authority to “supervise, control, and correct employees’ communications with Congress,” whatever that means.

In sum, the law gives job protection to potentially thousands of federal employees who might want to follow the ubiquitous adage of the Department of Homeland Security: “If you see something, say something.” However, the law does not protect those employees who “say something” to the press about potentially classified matters or matters the employee doesn’t “reasonably believe” are technically illegal, constitute government waste, or pose a “specific” threat to public safety. The Administration’s continued pursuit of criminal investigations against those even perceived as leaking information to the public may well encourage federal employees to keep complaints on sensitive issues internal. While we may prefer that complaints of such abuse be made public in the name of transparency and democratic accountability, there’s reason to hope that encouraging at least internal dissent might nonetheless contribute to greater dialogue and accountability within the Administration.

Christine Clarke is an employment lawyer at Beranbaum Menken LLP in New York City. She has published in Slate and writes an employment law blog at Wage Against the Machine.