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[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2002 Introduced in Senate (IS)]

<DOC>

115th CONGRESS
  1st Session
                                S. 2002

  To amend the National Security Act of 1947 to provide whistleblower 
      protections for employees of contractors of elements of the 
            intelligence community, and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                            October 24, 2017

Mrs. McCaskill introduced the following bill; which was read twice and 
            referred to the Select Committee on Intelligence

_______________________________________________________________________

                                 A BILL

 
  To amend the National Security Act of 1947 to provide whistleblower 
      protections for employees of contractors of elements of the 
            intelligence community, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Ensuring Protections for 
Intelligence Community Contractor Whistleblowers Act of 2017''.

SEC. 2. WHISTLEBLOWER PROTECTIONS FOR CONTRACTORS AND GRANTEES OF THE 
              INTELLIGENCE COMMUNITY.

    (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:

``SEC. 1105. WHISTLEBLOWER PROTECTIONS FOR CONTRACTORS AND GRANTEES OF 
              THE INTELLIGENCE COMMUNITY.

    ``(a) Definitions.--In this section:
            ``(1) Agency.--The term `agency' means an executive 
        department or independent establishment (as such terms are 
        defined in sections 101 and 104 of title 5, United States Code) 
        that contains an intelligence community element, except for the 
        Federal Bureau of Investigation.
            ``(2) Applicant.--The term `applicant' means an individual 
        who is applying to be an employee of a contractor, 
        subcontractor, grantee or subgrantee.
            ``(3) Contract.--The term `contract' means a contract, 
        including a personal services contract, awarded by the head of 
        an agency.
            ``(4) Contractor.--The term `contractor' means an entity 
        awarded a contract.
            ``(5) Covered intelligence community element.--The term 
        `covered intelligence community element' means 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.
            ``(6) Employee.--The term `employee' means an individual 
        who is an officer or an employee of a contractor, 
        subcontractor, grantee, or subgrantee.
            ``(7) Former employee.--The term `former employee' means an 
        individual who previously worked as an employee for a 
        contractor, subcontractor, grantee, or subgrantee.
            ``(8) Grant.--The term `grant' means a grant awarded by the 
        head of an agency.
            ``(9) Grantee.--The term `grantee' means an entity that is 
        awarded a grant.
            ``(10) Inspector general.--Except as otherwise specifically 
        provided, the term `Inspector General' means the Inspector 
        General of the Intelligence Community appointed under section 
        103H or an Inspector General appointed under the Inspector 
        General Act of 1978 (5 U.S.C. App.) or section 17 of the 
        Central Intelligence Agency Act of 1949 (50 U.S.C. 3517).
            ``(11) Protected disclosure.--The term `protected 
        disclosure' means--
                    ``(A) any lawful disclosure of information to an 
                individual listed under subsection (b)(2) by an 
                employee that the employee believes evidences--
                            ``(i) a violation of any Federal law, rule, 
                        or regulation; or
                            ``(ii) gross mismanagement, including of a 
                        contract or grant, a gross waste of funds, an 
                        abuse of authority, or a substantial and 
                        specific danger to public health or safety; and
                    ``(B) if the actions do not result in the employee 
                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.
            ``(12) Personal services contractor.--The term `personal 
        services contractor' means an individual awarded a contract 
        with an agency.
            ``(13) Subcontractor.--The term `subcontractor' means an 
        entity that reaches an agreement with a contractor to fulfill 
        any element of a contract.
            ``(14) Subgrantee.--The term `subgrantee' means an entity 
        that reaches an agreement with a grantee to fulfill any element 
        of a grant.
    ``(b) Prohibition of Reprisals.--
            ``(1) In general.--An employee, applicant, former employee, 
        or personal services contractor carrying out a contract, 
        subcontract, grant, or subgrant for an agency that contains a 
        covered intelligence community element may not be discharged, 
        demoted, or otherwise discriminated against because the 
        employee, applicant, former employee, or personal service 
        contractor was perceived as making or about to make--
                    ``(A) a protected disclosure; or
                    ``(B) any lawful disclosure that complies with--
                            ``(i) subsections (a)(1), (d), or (h) of 
                        section 8H of the Inspector General Act of 1978 
                        (5 U.S.C. App.);
                            ``(ii) subparagraphs (A), (D), or (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), or (I) of 
                        section 103H(k)(5).
            ``(2) Individuals described.--The individuals described in 
        this paragraph are as follows:
                    ``(A) An Inspector General.
                    ``(B) An authorized official of the Department of 
                Justice or other Federal law enforcement agency.
                    ``(C) A corporate management official or other 
                individual who has the authority to investigate, 
                discover, or address misconduct.
                    ``(D) The Director of National Intelligence.
                    ``(E) The head of the agency containing the covered 
                intelligence community element that awarded the 
                contract or grant.
    ``(c) Investigation of Complaints.--
            ``(1) Submission of complaint.--An employee, applicant, 
        former employee, or personal services contractor who believes 
        that he or she has been subjected to a reprisal prohibited by 
        subsection (b) may submit a complaint of such reprisal--
                    ``(A) to the Inspector General of the agency that 
                awarded the contract or grant;
                    ``(B) in the case of a complaint--
                            ``(i) regarding a covered intelligence 
                        community element in the Department of Defense, 
                        to the Inspector General of the Department of 
                        Defense; or
                            ``(ii) submitted by an employee, applicant, 
                        former employee, or personal services 
                        contractor who is a National Intelligence 
                        Program funded billet of a covered intelligence 
                        community element in the Department of Defense, 
                        to--
                                    ``(I) the Inspector General of the 
                                Department of Defense; and
                                    ``(II)(aa) the head of the agency 
                                containing the covered intelligence 
                                community element that awarded the 
                                contract or grant; or
                                    ``(bb) the Investigator General of 
                                the Intelligence Community; or
                    ``(C) to the Inspector General of the Intelligence 
                Community.
            ``(2) Determinations.--
                    ``(A) In general.--Except as provided under 
                subparagraph (B), the Inspector General who receives a 
                complaint referred to in paragraph (1) shall--
                            ``(i) make a determination that the 
                        complaint--
                                    ``(I) is frivolous;
                                    ``(II) fails to allege a violation 
                                of the prohibition in subsection (b); 
                                or
                                    ``(III) has previously been 
                                addressed in another Federal or State 
                                judicial or administrative proceeding 
                                initiated by the complainant; or
                            ``(ii) shall investigate the complaint and, 
                        upon completion of such investigation, submit a 
                        report of the findings of the investigation to 
                        the employee, applicant, former employee, or 
                        personal services contractor who submitted the 
                        complaint, and the contractor, subcontractor, 
                        grantee, or subgrantee concerned, and the head 
                        of the agency that awarded the contract or 
                        grant not later than 180 days after receiving 
                        the complaint.
                    ``(B) Extension of time.--If the Inspector General 
                is unable to complete an investigation in time to 
                submit a determination within the 180-day period 
                specified in subparagraph (A)(ii) and the employee, 
                applicant, former employee, or personal services 
                contractor who submitted the complaint agrees to an 
                extension of time, the Inspector General shall submit a 
                report under subparagraph (A)(ii) within such 
                additional period of time, up to 180 days, as shall be 
                agreed upon between the Inspector General and the 
                individual submitting the complaint.
            ``(3) Burdens of proof.--Consistent with Executive orders 
        protecting information specifically required by Executive order 
        to be kept classified in the interest of national defense or 
        the conduct of foreign affairs, the legal burdens of proof 
        specified in section 1221(e) of title 5, United States Code, 
        shall, to the greatest extent possible, be controlling for the 
        purposes of any investigation conducted by an Inspector 
        General, or a decision by the head of an agency to determine 
        whether a reprisal prohibited by subsection (b) has occurred.
            ``(4) Submission to congress.--
                    ``(A) In general.--If the employee, applicant, 
                former employee, or personal services contractor wishes 
                to submit to Congress their complaint submitted under 
                paragraph (1) or if such a complaint is an urgent 
                concern, the Inspector General who receives the 
                complaint shall, within 7 calendar days of receipt of 
                the complaint, forward such transmittal to the 
                congressional intelligence committees, together with 
                any comments the Inspector General considers 
                appropriate.
                    ``(B) Submission by the employee.--If the Inspector 
                General does not forward the complaint as required by 
                subparagraph (A), the employee, applicant, former 
                employee, or personal services contractor (subject to 
                subparagraph (C)) may submit the complaint to Congress 
                by contacting either or both of the congressional 
                intelligence committees directly.
                    ``(C) Conditions.--The employee, applicant, former 
                employee, or personal services contractor may contact 
                the congressional intelligence committees directly as 
                described in subparagraph (B) only if the employee, 
                applicant, former employee, or personal services 
                contractor--
                            ``(i) before making such a contact, 
                        furnishes to the head of the agency involved, 
                        through an Inspector General, a statement of 
                        the complaint and notice of the intent to 
                        contact the intelligence committees directly; 
                        and
                            ``(ii) obtains and follows from the head of 
                        the agency involved, through the Inspector 
                        General, direction on how to contact the 
                        congressional intelligence committees in 
                        accordance with appropriate security practices.
                    ``(D) Official capacity.--A member or employee of 
                one of the congressional intelligence committees who 
                receives a complaint under this paragraph does so in 
                that member or employee's official capacity as a member 
                or employee of that committee.
                    ``(E) Urgent concern defined.--In this paragraph, 
                the term `urgent concern' has the meaning given that 
                term in section 8H of the Inspector General Act of 1978 
                (5 U.S.C. App).
    ``(d) Remedy and Enforcement Authority.--
            ``(1) In general.--Not later than 30 days after receiving 
        an Inspector General report pursuant to subsection 
        (c)(2)(A)(ii), the head of the agency concerned shall determine 
        whether there is sufficient basis to conclude that the 
        employee, applicant, former employee, or personal services 
        contractor submitting the complaint was subject to a reprisal 
        prohibited by subsection (b) and shall--
                    ``(A) issue an order denying relief; or
                    ``(B) order the agency concerned and the 
                contractor, subcontractor, grantee, or subgrantee--
                            ``(i) to take affirmative action to abate 
                        the reprisal;
                            ``(ii) to reinstate the employee, 
                        applicant, former employee, or personal 
                        services contractor to the position that the 
                        employee, applicant, former employee, or 
                        personal services contractor held before the 
                        reprisal, together with compensatory damages 
                        (including back pay), employment benefits, and 
                        other terms and conditions of employment that 
                        would apply to the employee, applicant, former 
                        employee, or personal services contractor in 
                        that position if the reprisal had not been 
                        taken; or
                    ``(C) to pay the employee, applicant, former 
                employee, or personal services contractor an amount 
                equal to the aggregate amount of all costs and expenses 
                (including attorneys' fees and expert witnesses' fees) 
                that were reasonably incurred by the employee, 
                applicant, former employee, or personal services 
                contractor for, or in connection with, bringing the 
                complaint regarding the reprisal, as determined by the 
                head of the agency.
    ``(e) Notification.--The head of each agency containing a covered 
intelligence community element shall--
            ``(1) inform each contractor, subcontractor, grantee, and 
        subgrantee of such agency, in writing, of the remedies provided 
        by this section; and
            ``(2) ensure that each contractor, subcontractor, grantee, 
        and subgrantee of such agency inform their employees and 
        personal services contractors, in writing, of the remedies 
        provided under this section.
    ``(f) No 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 determination by an Inspector General under 
this section.
    ``(g) Prohibition on Waiver.--The remedies provided for in this 
section may not be waived by any agreement, policy, form, or condition 
of employment.''.
    (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:

``Sec. 1105. Whistleblower protections for contractors and grantees of 
                            the intelligence community.''.
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