US Codex
Pub. L.
Notes

Title VI — Intelligence Community Whistleblower Protections

113th Congress · Approved Jul 7, 2014 · 128 Stat. 1390 · Lineage

TITLE VI Intelligence Community Whistleblower Protections

SEC. 601. Protection of Intelligence Community Whistleblowers.

(a)
In General.— Title XI of the National Security Act of 1947 (50 U.S.C. 3231 et seq.) is amended by adding at the end the following new section:

“SEC. 1104. PROHIBITED PERSONNEL PRACTICES IN THE INTELLIGENCE COMMUNITY.

“(a) Definitions.—In this section:

“(1) Agency.—The term ‘agency’ means an executive department or independent establishment, as defined under sections 101 and 104 of title 5, United States Code, that contains an intelligence community element, except the Federal Bureau of Investigation.

“(2) Covered intelligence community element.—The term ‘covered intelligence community element’—

“(A) means—

“(i) the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office; and

“(ii) any executive agency or unit thereof determined by the President under section 2302(a)(2)(C)(ii) of title 5, United States Code, to have as its principal function the conduct of foreign intelligence or counterintelligence activities; and

“(B) does not include the Federal Bureau of Investigation.

“(3) Personnel action.—The term ‘personnel action’ means, with respect to an employee in a position in a covered intelligence community element (other than a position excepted from the competitive service due to its confidential, policy-determining, policymaking, or policy-advocating character)—

“(A) an appointment;

“(B) a promotion;

“(C) a disciplinary or corrective action;

“(D) a detail, transfer, or reassignment;

“(E) a demotion, suspension, or termination;

“(F) a reinstatement or restoration;

“(G) a performance evaluation;

“(H) a decision concerning pay, benefits, or awards;

“(I) a decision concerning education or training if such education or training may reasonably be expected to lead to an appointment, promotion, or performance evaluation; or

“(J) any other significant change in duties, responsibilities, or working conditions.

“(b) In General.—Any employee of an agency who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority, take or fail to take a personnel action with respect to any employee of a covered intelligence community element as a reprisal for a lawful disclosure of information by the employee to the Director of National Intelligence (or an employee designated by the Director of National Intelligence for such purpose), the Inspector General of the Intelligence Community, the head of the employing agency (or an employee designated by the head of that agency for such purpose), the appropriate inspector general of the employing agency, a congressional intelligence committee, or a member of a congressional intelligence committee, which the employee reasonably believes evidences—

“(1) a violation of any Federal 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.

“(c) Enforcement.—The President shall provide for the enforcement of this section.

“(d) Existing Rights Preserved.—Nothing in this section shall be construed to—

“(1) preempt or preclude any employee, or applicant for employment, at the Federal Bureau of Investigation from exercising rights provided under any other law, rule, or regulation, including section 2303 of title 5, United States Code; or

“(2) repeal section 2303 of title 5, United States Code.”

(b)
Table of Contents Amendment.— The table of contents in the first section of the National Security Act of 1947 is amended by adding at the end the following new item:

“Sec. 1104. Prohibited personnel practices in the intelligence community.”.

SEC. 602. Review of Security Clearance or Access Determinations.

(a)
General Responsibility.—
(1)
In general.— Section 3001(b) of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 3341(b)) is amended—
(A)
in the matter preceding paragraph (1), by striking “ Not” and inserting “ Except as otherwise provided, not”;
(B)
in paragraph (5), by striking “ and” after the semicolon;
(C)
in paragraph (6), by striking the period at the end and inserting “ ; and”; and
(D)
by inserting after paragraph (6) the following:

“(7) not later than 180 days after the date of the enactment of the Intelligence Authorization Act for Fiscal Year 2014—

“(A) developing policies and procedures that permit, to the extent practicable, individuals to appeal a determination to suspend or revoke a security clearance or access to classified information and to retain their government employment status while such challenge is pending; and

“(B) developing and implementing uniform and consistent policies and procedures to ensure proper protections during the process for denying, suspending, or revoking a security clearance or access to classified information, including the ability to appeal such a denial, suspension, or revocation, except that there shall be no appeal of an agency’s suspension of a security clearance or access determination for purposes of conducting an investigation, if that suspension lasts no longer than 1 year or the head of the agency or a designee of the head of the agency certifies that a longer suspension is needed before a final decision on denial or revocation to prevent imminent harm to the national security.”

(2)
Required elements of policies and procedures.— The policies and procedures for appeal developed under paragraph (7) of section 3001(b) of the Intelligence Reform and Terrorism Prevention Act of 2004, as added by subsection (a), shall provide for the Inspector General of the Intelligence Community, or the inspector general of the employing agency, to conduct fact-finding and report to the agency head or the designee of the agency head within 180 days unless the employee and the agency agree to an extension or the investigating inspector general determines in writing that a greater period of time is required. To the fullest extent possible, such fact-finding shall include an opportunity for the employee to present relevant evidence such as witness testimony.
(b)
Retaliatory Revocation of Security Clearances and Access Determinations.— Section 3001 of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 3341) is amended by adding at the end the following:

“(j) Retaliatory Revocation of Security Clearances and Access Determinations.—

“(1) In general.—Agency personnel with authority over personnel security clearance or access determinations shall not take or fail to take, or threaten to take or fail to take, any action with respect to any employee’s security clearance or access determination in retaliation for—

“(A) any lawful disclosure of information to the Director of National Intelligence (or an employee designated by the Director of National Intelligence for such purpose) or the head of the employing agency (or employee designated by the head of that agency for such purpose) by an employee that the employee reasonably believes evidences—

“(i) a violation of any Federal law, rule, or regulation; or

“(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;

“(B) any lawful disclosure to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee reasonably believes evidences—

“(i) a violation of any Federal law, rule, or regulation; or

“(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;

“(C) any lawful disclosure that complies with—

“(i) subsections (a)(1), (d), and (h) of section 8H of the Inspector General Act of 1978 (5 U.S.C. App.);

“(ii) subparagraphs (A), (D), and (H) of section 17(d)(5) of the Central Intelligence Agency Act of 1949 (50 U.S.C. 3517(d)(5)); or

“(iii) subparagraphs (A), (D), and (I) of section 103H(k)(5) of the National Security Act of 1947 (50 U.S.C. 3033(k)(5)); and

“(D) if the actions do not result in the employee or applicant unlawfully disclosing information specifically required by Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs, any lawful disclosure in conjunction with—

“(i) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;

“(ii) testimony for or otherwise lawfully assisting any individual in the exercise of any right referred to in clause (i); or

“(iii) cooperation with or disclosing information to the Inspector General of an agency, in accordance with applicable provisions of law in connection with an audit, inspection, or investigation conducted by the Inspector General.

“(2) Rule of construction.—Consistent with the protection of sources and methods, nothing in paragraph (1) shall be construed to authorize the withholding of information from Congress or the taking of any personnel action against an employee who lawfully discloses information to Congress.

“(3) Disclosures.—

“(A) In general.—A disclosure shall not be excluded from paragraph (1) because—

“(i) the disclosure was made to a person, including a supervisor, who participated in an activity that the employee reasonably believed to be covered by paragraph (1)(A)(ii);

“(ii) the disclosure revealed information that had been previously disclosed;

“(iii) the disclosure was not made in writing;

“(iv) the disclosure was made while the employee was off duty; or

“(v) of the amount of time which has passed since the occurrence of the events described in the disclosure.

“(B) Reprisals.—If a disclosure is made during the normal course of duties of an employee, the disclosure shall not be excluded from paragraph (1) if any employee who has authority to take, direct others to take, recommend, or approve any personnel action with respect to the employee making the disclosure, took, failed to take, or threatened to take or fail to take a personnel action with respect to that employee in reprisal for the disclosure.

“(4) Agency adjudication.—

“(A) Remedial procedure.—An employee or former employee who believes that he or she has been subjected to a reprisal prohibited by paragraph (1) may, within 90 days after the issuance of notice of such decision, appeal that decision within the agency of that employee or former employee through proceedings authorized by subsection (b)(7), except that there shall be no appeal of an agency’s suspension of a security clearance or access determination for purposes of conducting an investigation, if that suspension lasts not longer than 1 year (or a longer period in accordance with a certification made under subsection (b)(7)).

“(B) Corrective action.—If, in the course of proceedings authorized under subparagraph (A), it is determined that the adverse security clearance or access determination violated paragraph (1), the agency shall take specific corrective action to return the employee or former employee, as nearly as practicable and reasonable, to the position such employee or former employee would have held had the violation not occurred. Such corrective action may include back pay and related benefits, travel expenses, and compensatory damages not to exceed $300,000.

“(C) Contributing factor.—In determining whether the adverse security clearance or access determination violated paragraph (1), the agency shall find that paragraph (1) was violated if a disclosure described in paragraph (1) was a contributing factor in the adverse security clearance or access determination taken against the individual, unless the agency demonstrates by a preponderance of the evidence that it would have taken the same action in the absence of such disclosure, giving the utmost deference to the agency’s assessment of the particular threat to the national security interests of the United States in the instant matter.

“(5) Appellate review of security clearance access determinations by director of national intelligence.—

“(A) Appeal.—Within 60 days after receiving notice of an adverse final agency determination under a proceeding under paragraph (4), an employee or former employee may appeal that determination in accordance with the procedures established under subparagraph (B).

“(B) Policies and procedures.—The Director of National Intelligence, in consultation with the Attorney General and the Secretary of Defense, shall develop and implement policies and procedures for adjudicating the appeals authorized by subparagraph (A).

“(C) Congressional notification.—Consistent with the protection of sources and methods, at the time the Director of National Intelligence issues an order regarding an appeal pursuant to the policies and procedures established by this paragraph, the Director of National Intelligence shall notify the congressional intelligence committees.

“(6) Judicial review.—Nothing in this section shall be construed to permit or require judicial review of any—

“(A) agency action under this section; or

“(B) action of the appellate review procedures established under paragraph (5).

“(7) Private cause of action.—Nothing in this section shall be construed to permit, authorize, or require a private cause of action to challenge the merits of a security clearance determination.”

(c)
Access Determination Defined.— Section 3001(a) of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 3341(a)) is amended by adding at the end the following:

“(9) Access determination.—The term ‘access determination’ means the determination regarding whether an employee—

“(A) is eligible for access to classified information in accordance with Executive Order 12968 (60 Fed. Reg. 40245; relating to access to classified information), or any successor thereto, and Executive Order 10865 (25 Fed. Reg. 1583; relating to safeguarding classified information with industry), or any successor thereto; and

“(B) possesses a need to know under such an Order.”

(d)
Existing Rights Preserved.— Nothing in this section or the amendments made by this section shall be construed to preempt, preclude, or otherwise prevent an individual from exercising rights, remedies, or avenues of redress currently provided under any other law, regulation, or rule.
(e)
Rule of Construction.— Nothing in section 3001 of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 3341), as amended by this title, shall be construed to require the repeal or replacement of agency appeal procedures implementing Executive Order 12968 (60 Fed. Reg. 40245; relating to access to classified information), or any successor thereto, and Executive Order 10865 (25 Fed. Reg. 1583; relating to safeguarding classified information with industry), or any successor thereto, that meet the requirements of paragraph (7) of section 3001(b) of such Act, as added by this section.

SEC. 603. Revisions of Other Laws.

(a)
Inspector General Act of 1978.— Section 8H of the Inspector General Act of 1978 (5 U.S.C. App.) is amended—
(1)
in subsection (b)—
(A)
by inserting “ (1)” after “ (b)”; and
(B)
by adding at the end the following:

“(2) If the head of an establishment determines that a complaint or information transmitted under paragraph (1) would create a conflict of interest for the head of the establishment, the head of the establishment shall return the complaint or information to the Inspector General with that determination and the Inspector General shall make the transmission to the Director of National Intelligence and, if the establishment is within the Department of Defense, to the Secretary of Defense. In such a case, the requirements of this section for the head of the establishment apply to each recipient of the Inspector General’s transmission.”

(2)
by redesignating subsection (h) as subsection (i); and
(3)
by inserting after subsection (g) the following:

“(h) An individual who has submitted a complaint or information to an Inspector General under this section may notify any member of the Permanent Select Committee on Intelligence of the House of Representatives or the Select Committee on Intelligence of the Senate, or a staff member of either such Committee, of the fact that such individual has made a submission to that particular Inspector General, and of the date on which such submission was made.”

(b)
Central Intelligence Agency.— Section 17(d)(5) of the Central Intelligence Agency Act of 1949 (50 U.S.C. 3517(d)(5)) is amended—
(1)
in subparagraph (B)—
(A)
by inserting “ (i)” after “ (B)”; and
(B)
by adding at the end the following:

“(ii) If the Director determines that a complaint or information transmitted under paragraph (1) would create a conflict of interest for the Director, the Director shall return the complaint or information to the Inspector General with that determination and the Inspector General shall make the transmission to the Director of National Intelligence. In such a case, the requirements of this subsection for the Director of the Central Intelligence Agency apply to the Director of National Intelligence”

; and

(2)
by adding at the end the following:

“(H) An individual who has submitted a complaint or information to the Inspector General under this section may notify any member of the Permanent Select Committee on Intelligence of the House of Representatives or the Select Committee on Intelligence of the Senate, or a staff member of either such Committee, of the fact that such individual has made a submission to the Inspector General, and of the date on which such submission was made.”

(c)
National Security Act of 1947.— Section 103H(k)(5) of the National Security Act of 1947 (50 U.S.C. 3033(k)(5)) is amended by adding at the end the following:

“(I) An individual who has submitted a complaint or information to the Inspector General under this section may notify any member of either of the congressional intelligence committees, or a staff member of either of such committees, of the fact that such individual has made a submission to the Inspector General, and of the date on which such submission was made.”

SEC. 604. Policies and Procedures; Nonapplicability to Certain Terminations.

(a)
Covered Intelligence Community Element Defined.— In this section, the term “covered intelligence community element”—
(1)
means—
(A)
the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office; and
(B)
any executive agency or unit thereof determined by the President under section 2302(a)(2)(C)(ii) of title 5, United States Code, to have as its principal function the conduct of foreign intelligence or counterintelligence activities; and
(2)
does not include the Federal Bureau of Investigation.
(b)
Regulations.— In consultation with the Secretary of Defense, the Director of National Intelligence shall develop policies and procedures to ensure that a personnel action shall not be taken against an employee of a covered intelligence community element as a reprisal for any disclosure of information described in 1104 of the National Security Act of 1947, as added by section 601 of this Act.
(c)
Report on the Status of Implementation of Regulations.— Not later than 2 years after the date of the enactment of this Act, the Director of National Intelligence shall submit a report on the status of the implementation of the regulations promulgated under subsection (b) to the congressional intelligence committees.
(d)
Nonapplicability to Certain Terminations.— Section 1104 of the National Security Act of 1947, as added by section 601 of this Act, and section 3001 of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 3341), as amended by section 602 of this Act, shall not apply if—
(1)
the affected employee is concurrently terminated under—
(A)
section 1609 of title 10, United States Code;
(B)
the authority of the Director of National Intelligence under section 102A(m) of the National Security Act of 1947 (50 U.S.C. 3024(m)), if the Director determines that the termination is in the interest of the United States;
(C)
the authority of the Director of the Central Intelligence Agency under section 104A(e) of the National Security Act of 1947 (50 U.S.C. 3036(e)), if the Director determines that the termination is in the interest of the United States; or
(D)
section 7532 of title 5, United States Code, if the head of the agency determines that the termination is in the interest of the United States; and
(2)
not later than 30 days after such termination, the head of the agency that employed the affected employee notifies the congressional intelligence committees of the termination.