Section 1 Short title
This Act may be cited as the “Adam S. Lovinger Whistleblower Reprisal Act of 2018”.
Adam S. Lovinger Whistleblower Reprisal Act of 2018
A BILL
To amend the Intelligence Reform and Terrorism Prevention Act of 2004 to enhance protections for individuals who hold a security clearance and who are subject to whistleblower retaliation, and for other purposes.
Sec. 2 Findings
The Congress finds the following:
United States Government employees and contractors who properly and lawfully report gross mismanagement; gross waste of public funds; violation of law, rule, or regulation; abuses of authority; or substantial and specific dangers to public health or safety further the interests of good governance and provide a valuable service to the American public.
Despite efforts in recent years to protect whistleblowers—specifically, Presidential Policy Directive 19 and the codification of certain provisions of the Directive at section 3001(j) of the Intelligence Reform and Terrorism Prevention Act of 2004—retaliatory denial, suspension, or revocation of security clearance remains a very real threat for whistleblowers. Government officials can wield this threat with impunity due to the lack of defined penalties for misusing the security clearance system.
Because those found to have engaged in unlawful whistleblower reprisal are often senior agency officials, and because punishment for such misconduct is, under current law, both undefined and exclusively within the discretion of agency management officials, the retaliator often goes unpunished while the whistleblower is left to pick up the pieces of his or her career, livelihood, and reputation, often after months or years without a paycheck.
Defining penalties for unlawful whistleblower reprisal in the form of suspension, denial, or revocation of a security clearance, or the recommendation, threat, or furtherance of the same, places those contemplating misusing the security clearance system on notice that such behavior will not be tolerated, serves as a strong deterrent to unlawful retaliation, and ensures appropriate consequences are implemented when necessary. The Whistleblower Protection Act of 1989, which covers all reprisal except that pertaining to security clearances, has for many years done precisely that. The lack of penalty congruence between the Whistleblower Protection Act and section 3001(j) of the Intelligence Reform and Terrorism Prevention Act of 2004, is inexplicable, unwarranted, and remedied by this Act.
This Act recognizes that the suspension, denial, or revocation of security clearance often has an even more insidious impact on a whistleblower than other forms of retaliation due to the inherent stigma of national security risk it carries.
Sec. 3 Penalties for retaliatory action against whistleblower who hold a security clearance
In general— Section 3001(j)(4) of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 3341(j)(4)) is amended by adding at the end the following:
“(D) Penalties for reprisals
“(i) Upon a finding by an inspector general of an agency or the Inspector General of the Intelligence Community that an officer or employee of an agency directed, recommended, or materially furthered a reprisal prohibited by paragraph (1), the officer or employee shall be subject to one or more of the following adverse actions, as determined by the head of the employing agency:
“(I) A suspension from duty without pay for a period of at least 14 days.
“(II) A reduction in grade.
“(III) Revocation of security clearance.
“(IV) Removal from the Federal service.
“(V) Referral to the Office of Personnel Management for debarment from the Federal service for a period not to exceed 10 years.
“(ii) For purposes of carrying out clause (i), an officer or employee materially furthered a reprisal if the officer or employee knew, or reasonably should have known, that the action was a reprisal prohibited by paragraph (1).”
Effective date— The amendment made by subsection (a) shall take effect on the date that is 30 days after the date of the enactment of this Act.