As a candidate in 2008, Barack Obama promised to strengthen whistleblower laws for federal workers by speeding up the review process for claims and granting whistleblowers full access to jury trials and due process.
Obama has signed both a 2012 law and an executive order increasing whistleblower protection rights, and the overall conditions for federal employees have improved greatly. But a significant gap remains — protections for whistleblowers in the intelligence community, most famously Edward Snowden, a former NSA contractor.
Shanna Devine, legislative director for the Government Accountability Project, a whistleblower advocacy group, gives Obama credit for moving forward on improvements for employees, but she said the administration could have done more to help contractors.
"We sought a Statement of Administration Policy in support of S. 794, legislation to restore whistleblower protections for intelligence community contractors, and the administration failed to deliver," Devine said.
Also, there are concerns about a possible Labor Department administrative ruling that could make it tougher for private sector whistleblowers to prove their case.
The key step was the 2012 passage of the Whistleblower Protection Enhancement Act.
It strengthened and expanded existing protections for whistleblowers, and for the first time allowed whistleblowers to sue for damages if they had been victims of reprisal. More workers could claim whistleblower status and find support from government offices created to back up their case, if it was legitimate.
Despite getting high marks from government transparency advocates, the law failed to give whistleblowers access to jury trials, and it did nothing for workers in the intelligence community.
Obama filled some of the gaps with Presidential Policy Directive 19. The executive order expanded whistleblower protections to national security and intelligence employees. An executive order is not law and can be reversed by any administration that follows, but still, this was a first.
However, the order aimed to keep revelations out of the press. It encouraged whistleblowers to keep their complaints internal, or, if they must, go to Congress.
Those who chose to go the media found the limits of the policy.
In the seven years of Obama's presidency, the administration launched a record number of cases against those who revealed what the government wanted kept secret. Under Obama, eight whistleblowers have been prosecuted under the World War I-era Espionage Act, more than under all other presidents combined.
And although there's been no legal ruling, contractors such as Snowden seem to have no protections.
One pending issue is making its way through the Washington bureaucracy that would affect private sector whistleblowers and potentially some federal workers as well. At issue is what a worker and employer need to prove in arguing their case. Both Republican and Democratic lawmakers worry that the Labor Department's Administrative Review Board will rule in favor of employers in a pending case.
Overall, Obama's actions on whistleblower laws are mixed. He moved forward with the passage of a new law to make it easier for ordinary federal workers to step forward. On his own, he offered some limited avenues for those in the intelligence sector to report violations. But that didn't apply to contractors, and with a record number of prosecutions, his administration has sent a strong warning to anyone in the intelligence sector to steer clear of the press.
The rating of this promise remains Compromise
Email interviews, Shanna Devine, legislative director and Tom Devine, legal director, Government Accountability Project, Sept. 6, 2016
Previous Obamater research on this promise
As a candidate in 2008, Barack Obama promised to strengthen whistleblower laws for federal workers by speeding up the review process of claims, and granting whistleblowers full access to jury trials and due process.
In the lights of continuing revelations by whistleblower Edward Snowden about methods used by the NSA, we decided to once again take a closer look at Obama's campaign promise.
As of this writing, Obama has signed both a law and an executive order increasing whistleblower protection rights, and the overall conditions for federal employees have improved greatly.
One important exception, though, are whistleblowers in the intelligence community like Snowden, a former NSA contractor.
"For non-national security/ intelligence community whistleblowers it has dramatically improved," said Angela Canterbury, director of public policy at the Project on Government Oversight. "But for anyone making public disclosures about national security/ intelligence wrongdoing, it is worse."
Before Obama
Since the 1989 Whistleblower Protection Act, federal agencies have been prohibited from punishing employees because of whistleblowing. But a wide range of loopholes undermined the authority of the law. In many cases federal employees were fired, demoted, reassigned, or lost their security clearances after speaking up.
As we have pointed out before, if federal employees want to complain about unfair retaliation after blowing the whistle, traditional legal channels aren't available. They cannot file a lawsuit.
Instead, in most cases, they must appeal to the Office of Special Counsel, an independent federal agency that investigates federal government personnel cases. If the office finds there was unfair punishment by the employer, it tries to negotiate a resolution. If that doesn't work, the office represents employees before a quasi-judicial agency called the Merit Systems Protection Board, which is comprised of three presidential appointees. If they don't like the decision the board reaches, employees can try to appeal to the U.S. Circuit Court of Appeals, which has ruled in favor of whistleblowers in only three of 229 cases – not counting cases dismissed on technicalities – between October 1994 and May 2012.
Five experts we interviewed said Obama has given federal employees better chances of appealing wrongful employer retaliation because of his appointments.
"The Office of Special Counsel now stands for whistleblower rights in a way that it didn't in the past," said Steven Aftergood, who directs the Project on Government Secrecy, a watchdog organization that promotes public oversight.
The last two years have been the most successful in OSC's history in achieving favorable actions for whistleblowers – like the rehiring of a fired employee or the reprimand of a supervisor. For over a decade, OSC counted less than 100 successful favorable actions a year (including an all time low of only 29 in 2007), but in the fiscal year of 2012 they were able to reach 159 favorable actions, and this year it was 160.
For employees who appear before the Merit Systems Protection Board, the situation hasn't improved as much. "The percentage of cases decided in favor of employees has increased from less than 2 percent to about 3-4 percent," said David Pardo, an attorney who runs the website MSPB Watch.
Whistleblower Protection Enhancement Act of 2012
On Nov. 27, 2012, Obama signed the Whistleblower Protection Enhancement Act into law, after it had been passed on a bipartisan basis.
The law strengthened and expanded already existing protections for whistleblowers, and for the first time entitled whistleblowers to compensatory damages in cases of wrongful reprisal. Other key reforms include protections for federal scientists and Transportation Security Administration officers, as well as for federal employees who are not the first to disclose a case of misconduct.
To inform workers about their rights and protections, the law also requires agencies to create whistleblower ombudsmen at the Inspector General offices. Additionally, the law strengthens the power of the Office of Special Counsel by giving it the authority to take disciplinary actions against those who retaliate.
The law was lauded by whistleblower advocates. Tom Devine, legal director at the Government Accountability Project, specifically praised President Obama's "unprecedented leadership" in passing the law. "He was the first president in history not only to support government whistleblower rights in principle, but to engage the White House directly into making them as strong as possible," Devine said.
Regardless of all its new benefits, the law falls short in two major areas: It does not give whistleblowers access to jury trials, and its free speech protections don't extend to the intelligence community.
Presidential Policy Directive 19
To address at least one of these problems, President Obama issued Presidential Policy Directive 19 in October 2012. The executive order extended whistleblower protections to national security and intelligence employees. In many cases, it was the first time that workers with access to classified information could benefit from free speech protections – a "landmark paradigm shift" in U.S. politics, according to Devine.
The executive order is meant to encourage intelligence community whistleblowers to use internal channels, or go to Congress instead of leaking information to the media. Like the Whistleblower Protection Enhancement Act, it forbids retaliation against workers who report federal misconduct.
The executive order doesn't have the same authority as a law passed by Congress, and whistleblower advocates have said it only appears on its face to help. If a federal employee with a security clearance wants to complain about wrongful retaliation, he or she is only allowed to do so internally – within the same agency that proposed the reprisal.
Additionally, it's not clear whether the directive also protects the numerous government contractors (like Snowden), and the last paragraph of the executive order limits the legal rights to enforce the promised protections.
Obama's executive order for the first time ever established free speech protections for the intelligence community – as long as they report federal misconduct internally or to Congress. But all goodwill stops once you talk to the media.
In the five years of Obama's presidency, the administration launched what some call an "unprecedented crackdown on government leaks." Under Obama, eight whistleblowers have been prosecuted under the World War I-era Espionage Act, more than under all other presidents combined.
Our ruling
Obama promised to strengthen whistleblower laws by speeding up the review process of claims and granting full access to jury trials and due process. When we last checked his promise in 2012, we rated it a Compromise, saying that Obama has made a lot of progress (especially through his appointments), but that he was nowhere near the standards set by his own campaign rhetoric.
Since then, a lot has changed.
Obama enacted structural reforms by signing the Whistleblower Protection Enhancement Act and the Presidential Policy Directive 19 – which closed many loopholes in whistleblower protections for federal employees, and gave the intelligence community free speech rights for the first time ever.
All the experts we have talked to were more than eager to acknowledge that Obama has done more to protect whistleblowers than any other president before him. But national security whistleblowers represent a glaring exception. The Obama administration has prosecuted more whistleblowers under the Espionage Act than any president before.
Additionally, Obama didn't manage to get whistleblowers access to jury trials, which was part of his original promise.
We continue to rate his promise a Compromise.
