The Washington Post has a must-read article on how federal agency "secrecy agreements" can violate federal whistleblower protection laws:
The DOE wanted them to sign nondisclosure agreements that prevented them from reporting wrongdoing at the nation’s most contaminated nuclear facility without getting approval from an agency supervisor. The agreements also barred them from using any information for financial gain, a possible violation of federal whistleblower laws, which allow employees to collect reward money for reporting wrongdoing.
Beyond the conflicts with the whistleblower laws mentioned in the article these secrecy agreements also violate executive orders regarding national security and federal employees’ constitutional rights.
These types of omerta, mafia style loyalty oaths have become increasingly common at federal agencies, contractors, financial institutions. The WaPo article mentions restrictive agreements at Kellog Brown and Root (KBR) and International Relief and Development (IRD) both organizations that received billion dollar contracts for work in Iraq and Afghanistan respectively. The Securities and Exchange Commission (SEC) has expressed concern that corporations are now fighting tooth and nail to undermine the whistleblowing provisions of Dodd-Frank financial reform by forcing employees into restrictive and possibly illegal non-disclosure agreements.
These secrecy agreements serve one purpose – to hide wrong doing by intimidating employees and disincentivizing whistleblowing. As one federal whistleblower put it:
“The message was pretty clear: ‘Don’t say anything to anyone, or else.’”
Many of these agreements illegally restrict an employee from receiving any financial gain from whistleblowing – an incentive written into whistleblowing laws since the False Claims Act was passed after the Civil War.
In the national security context, it's a constant refrain from surveillance industrial complex apologists that whistleblowers should be punished for the violation of their oaths to secrecy regardless of the public’s interest in knowing about the waste, fraud, abuse, and constitutional violations they uncover. These agreements are not loyalty oaths and the government is not the mafia. The government’s own regulations, Executive Order 13526 on Classified National Security Information, prohibits classification to cover up embarrassments, waste, or illegality.
Government employees do not sign away their Constitutional protections to free speech through these agreements either. The Supreme Court has held since the 60s through Pickering and its progeny that public employees have the right to speak about matters of public concern. These rights can only be overcome if the employee's interest in the speech is outweighed by the government's interest in the orderly operation of the public workplace and the efficient delivery of public services by public employees. Plus, as long as public employees are speaking as private citizens they also retain their right to speak about issues directly relating to their employment (Garcetti v. Ceballos, 2006).
The fight to protect employees’ ability to blow the whistle about illegality and wrongdoing in the face of private and government intimidation is a long one, but whistleblowers must remember that the law, the Constitution, and the people are on their side.
