II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Ensuring Protections 

5 for Intelligence Community Contractor Whistleblowers Act 

6 of 2017’’. 


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1 SEC. 2. WHISTLEBLOWER PROTECTIONS FOR CONTRAC2 TORS AND GRANTEES OF THE INTELLIGENCE 

3 COMMUNITY. 

4 (a) IN GENERAL.—Title XI of the National Security 

5 Act of 1947 (50 U.S.C. 3231 et seq.) is amended by add6 ing at the end the following: 

7 ‘‘SEC. 1105. WHISTLEBLOWER PROTECTIONS FOR CON8 TRACTORS AND GRANTEES OF THE INTEL9 LIGENCE COMMUNITY. 

10 ‘‘(a) DEFINITIONS.—In this section: 

11 ‘‘(1) AGENCY.—The term ‘agency’ means an 

12 executive department or independent establishment 

13 (as such terms are defined in sections 101 and 104 

14 of title 5, United States Code) that contains an in15 telligence community element, except for the Federal 

16 Bureau of Investigation. 

17 ‘‘(2) APPLICANT.—The term ‘applicant’ means 

18 an individual who is applying to be an employee of 

19 a contractor, subcontractor, grantee or subgrantee. 

20 ‘‘(3) CONTRACT.—The term ‘contract’ means a 

21 contract, including a personal services contract, 

22 awarded by the head of an agency. 

23 ‘‘(4) CONTRACTOR.—The term ‘contractor’ 

24 means an entity awarded a contract. 

25 ‘‘(5) COVERED INTELLIGENCE COMMUNITY

26 ELEMENT.—The term ‘covered intelligence commuVerDate Sep 11 2014 04:39 Oct 25, 2017 Jkt 079200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2002.IS S2002

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1 nity element’ means the Central Intelligence Agency, 

2 the Defense Intelligence Agency, the National 

3 Geospatial-Intelligence Agency, the National Secu4 rity Agency, the Office of the Director of National 

5 Intelligence, and the National Reconnaissance Of6 fice. 

7 ‘‘(6) EMPLOYEE.—The term ‘employee’ means 

8 an individual who is an officer or an employee of a 

9 contractor, subcontractor, grantee, or subgrantee. 

10 ‘‘(7) FORMER EMPLOYEE.—The term ‘former 

11 employee’ means an individual who previously 

12 worked as an employee for a contractor, subcon13 tractor, grantee, or subgrantee. 

14 ‘‘(8) GRANT.—The term ‘grant’ means a grant 

15 awarded by the head of an agency. 

16 ‘‘(9) GRANTEE.—The term ‘grantee’ means an 

17 entity that is awarded a grant. 

18 ‘‘(10) INSPECTOR GENERAL.—Except as other19 wise specifically provided, the term ‘Inspector Gen20 eral’ means the Inspector General of the Intelligence 

21 Community appointed under section 103H or an In22 spector General appointed under the Inspector Gen23 eral Act of 1978 (5 U.S.C. App.) or section 17 of 

24 the Central Intelligence Agency Act of 1949 (50 

25 U.S.C. 3517). 


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1 ‘‘(11) PROTECTED DISCLOSURE.—The term 

2 ‘protected disclosure’ means— 

3 ‘‘(A) any lawful disclosure of information 

4 to an individual listed under subsection (b)(2) 

5 by an employee that the employee believes evi6 dences— 

7 ‘‘(i) a violation of any Federal law, 

8 rule, or regulation; or 

9 ‘‘(ii) gross mismanagement, including 

10 of a contract or grant, a gross waste of 

11 funds, an abuse of authority, or a substan12 tial and specific danger to public health or 

13 safety; and 

14 ‘‘(B) if the actions do not result in the em15 ployee unlawfully disclosing information specifi16 cally required by Executive order to be kept 

17 classified in the interest of national defense or 

18 the conduct of foreign affairs, any lawful disclo19 sure in conjunction with— 

20 ‘‘(i) the exercise of any appeal, com21 plaint, or grievance right granted by any 

22 law, rule, or regulation; 

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1 cise of any right referred to in clause (i); 

2 or 

3 ‘‘(iii) cooperation with or disclosing 

4 information to the Inspector General of an 

5 agency, in accordance with applicable pro6 visions of law in connection with an audit, 

7 inspection, or investigation conducted by 

8 the Inspector General. 

9 ‘‘(12) PERSONAL SERVICES CONTRACTOR.—The 

10 term ‘personal services contractor’ means an indi11 vidual awarded a contract with an agency. 

12 ‘‘(13) SUBCONTRACTOR.—The term ‘subcon13 tractor’ means an entity that reaches an agreement 

14 with a contractor to fulfill any element of a contract. 

15 ‘‘(14) SUBGRANTEE.—The term ‘subgrantee’ 

16 means an entity that reaches an agreement with a 

17 grantee to fulfill any element of a grant. 

18 ‘‘(b) PROHIBITION OF REPRISALS.— 

19 ‘‘(1) IN GENERAL.—An employee, applicant, 

20 former employee, or personal services contractor car21 rying out a contract, subcontract, grant, or subgrant 

22 for an agency that contains a covered intelligence 

23 community element may not be discharged, demoted, 

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1 ice contractor was perceived as making or about to 

2 make— 

3 ‘‘(A) a protected disclosure; or 

4 ‘‘(B) any lawful disclosure that complies 

5 with— 

6 ‘‘(i) subsections (a)(1), (d), or (h) of 

7 section 8H of the Inspector General Act of 

8 1978 (5 U.S.C. App.); 

9 ‘‘(ii) subparagraphs (A), (D), or (H) 

10 of section 17(d)(5) of the Central Intel11 ligence Agency Act of 1949 (50 U.S.C. 

12 3517(d)(5)); or 

13 ‘‘(iii) subparagraphs (A), (D), or (I) 

14 of section 103H(k)(5). 

15 ‘‘(2) INDIVIDUALS DESCRIBED.—The individ16 uals described in this paragraph are as follows: 

17 ‘‘(A) An Inspector General. 

18 ‘‘(B) An authorized official of the Depart19 ment of Justice or other Federal law enforce20 ment agency. 

21 ‘‘(C) A corporate management official or 

22 other individual who has the authority to inves23 tigate, discover, or address misconduct. 

24 ‘‘(D) The Director of National Intelligence. 


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1 ‘‘(E) The head of the agency containing 

2 the covered intelligence community element that 

3 awarded the contract or grant. 

4 ‘‘(c) INVESTIGATION OF COMPLAINTS.— 

5 ‘‘(1) SUBMISSION OF COMPLAINT.—An em6 ployee, applicant, former employee, or personal serv7 ices contractor who believes that he or she has been 

8 subjected to a reprisal prohibited by subsection (b) 

9 may submit a complaint of such reprisal— 

10 ‘‘(A) to the Inspector General of the agen11 cy that awarded the contract or grant; 

12 ‘‘(B) in the case of a complaint— 

13 ‘‘(i) regarding a covered intelligence 

14 community element in the Department of 

15 Defense, to the Inspector General of the 

16 Department of Defense; or 

17 ‘‘(ii) submitted by an employee, appli18 cant, former employee, or personal services 

19 contractor who is a National Intelligence 

20 Program funded billet of a covered intel21 ligence community element in the Depart22 ment of Defense, to— 

23 ‘‘(I) the Inspector General of the 

24 Department of Defense; and 


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1 ‘‘(II)(aa) the head of the agency 

2 containing the covered intelligence 

3 community element that awarded the 

4 contract or grant; or 

5 ‘‘(bb) the Investigator General of 

6 the Intelligence Community; or 

7 ‘‘(C) to the Inspector General of the Intel8 ligence Community. 

9 ‘‘(2) DETERMINATIONS.— 

10 ‘‘(A) IN GENERAL.—Except as provided 

11 under subparagraph (B), the Inspector General 

12 who receives a complaint referred to in para13 graph (1) shall— 

14 ‘‘(i) make a determination that the 

15 complaint— 

16 ‘‘(I) is frivolous; 

17 ‘‘(II) fails to allege a violation of 

18 the prohibition in subsection (b); or 

19 ‘‘(III) has previously been ad20 dressed in another Federal or State 

21 judicial or administrative proceeding 

22 initiated by the complainant; or 

23 ‘‘(ii) shall investigate the complaint 

24 and, upon completion of such investigation, 

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1 vestigation to the employee, applicant, 

2 former employee, or personal services con3 tractor who submitted the complaint, and 

4 the contractor, subcontractor, grantee, or 

5 subgrantee concerned, and the head of the 

6 agency that awarded the contract or grant 

7 not later than 180 days after receiving the 

8 complaint. 

9 ‘‘(B) EXTENSION OF TIME.—If the Inspec10 tor General is unable to complete an investiga11 tion in time to submit a determination within 

12 the 180-day period specified in subparagraph 

13 (A)(ii) and the employee, applicant, former em14 ployee, or personal services contractor who sub15 mitted the complaint agrees to an extension of 

16 time, the Inspector General shall submit a re17 port under subparagraph (A)(ii) within such ad18 ditional period of time, up to 180 days, as shall 

19 be agreed upon between the Inspector General 

20 and the individual submitting the complaint. 

21 ‘‘(3) BURDENS OF PROOF.—Consistent with 

22 Executive orders protecting information specifically 

23 required by Executive order to be kept classified in 

24 the interest of national defense or the conduct of 

25 foreign affairs, the legal burdens of proof specified 


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1 in section 1221(e) of title 5, United States Code, 

2 shall, to the greatest extent possible, be controlling 

3 for the purposes of any investigation conducted by 

4 an Inspector General, or a decision by the head of 

5 an agency to determine whether a reprisal prohibited 

6 by subsection (b) has occurred. 

7 ‘‘(4) SUBMISSION TO CONGRESS.— 

8 ‘‘(A) IN GENERAL.—If the employee, appli9 cant, former employee, or personal services con10 tractor wishes to submit to Congress their com11 plaint submitted under paragraph (1) or if such 

12 a complaint is an urgent concern, the Inspector 

13 General who receives the complaint shall, within 

14 7 calendar days of receipt of the complaint, for15 ward such transmittal to the congressional in16 telligence committees, together with any com17 ments the Inspector General considers appro18 priate. 

19 ‘‘(B) SUBMISSION BY THE EMPLOYEE.—If 

20 the Inspector General does not forward the 

21 complaint as required by subparagraph (A), the 

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1 gress by contacting either or both of the con2 gressional intelligence committees directly. 

3 ‘‘(C) CONDITIONS.—The employee, appli4 cant, former employee, or personal services con5 tractor may contact the congressional intel6 ligence committees directly as described in sub7 paragraph (B) only if the employee, applicant, 

8 former employee, or personal services con9 tractor— 

10 ‘‘(i) before making such a contact, 

11 furnishes to the head of the agency in12 volved, through an Inspector General, a 

13 statement of the complaint and notice of 

14 the intent to contact the intelligence com15 mittees directly; and 

16 ‘‘(ii) obtains and follows from the 

17 head of the agency involved, through the 

18 Inspector General, direction on how to con19 tact the congressional intelligence commit20 tees in accordance with appropriate secu21 rity practices. 

22 ‘‘(D) OFFICIAL CAPACITY.—A member or 

23 employee of one of the congressional intelligence 

24 committees who receives a complaint under this 

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1 ee’s official capacity as a member or employee 

2 of that committee. 

3 ‘‘(E) URGENT CONCERN DEFINED.—In 

4 this paragraph, the term ‘urgent concern’ has 

5 the meaning given that term in section 8H of 

6 the Inspector General Act of 1978 (5 U.S.C. 

7 App). 

8 ‘‘(d) REMEDY AND ENFORCEMENT AUTHORITY.— 

9 ‘‘(1) IN GENERAL.—Not later than 30 days 

10 after receiving an Inspector General report pursuant 

11 to subsection (c)(2)(A)(ii), the head of the agency 

12 concerned shall determine whether there is sufficient 

13 basis to conclude that the employee, applicant, 

14 former employee, or personal services contractor 

15 submitting the complaint was subject to a reprisal 

16 prohibited by subsection (b) and shall— 

17 ‘‘(A) issue an order denying relief; or 

18 ‘‘(B) order the agency concerned and the 

19 contractor, subcontractor, grantee, or sub20 grantee— 

21 ‘‘(i) to take affirmative action to 

22 abate the reprisal; 

23 ‘‘(ii) to reinstate the employee, appli24 cant, former employee, or personal services 

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1 ployee, applicant, former employee, or per2 sonal services contractor held before the 

3 reprisal, together with compensatory dam4 ages (including back pay), employment 

5 benefits, and other terms and conditions of 

6 employment that would apply to the em7 ployee, applicant, former employee, or per8 sonal services contractor in that position if 

9 the reprisal had not been taken; or 

10 ‘‘(C) to pay the employee, applicant, 

11 former employee, or personal services contractor 

12 an amount equal to the aggregate amount of all 

13 costs and expenses (including attorneys’ fees 

14 and expert witnesses’ fees) that were reasonably 

15 incurred by the employee, applicant, former em16 ployee, or personal services contractor for, or in 

17 connection with, bringing the complaint regard18 ing the reprisal, as determined by the head of 

19 the agency. 

20 ‘‘(e) NOTIFICATION.—The head of each agency con21 taining a covered intelligence community element shall— 

22 ‘‘(1) inform each contractor, subcontractor, 

23 grantee, and subgrantee of such agency, in writing, 

24 of the remedies provided by this section; and 


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1 ‘‘(2) ensure that each contractor, subcontractor, 

2 grantee, and subgrantee of such agency inform their 

3 employees and personal services contractors, in writ4 ing, of the remedies provided under this section. 

5 ‘‘(f) NO PRIVATE CAUSE OF ACTION.—Nothing in 

6 this section shall be construed to permit, authorize, or re7 quire a private cause of action to challenge the merits of 

8 a determination by an Inspector General under this sec9 tion. 

10 ‘‘(g) PROHIBITION ON WAIVER.—The remedies pro11 vided for in this section may not be waived by any agree12 ment, policy, form, or condition of employment.’’. 

13 (b) TABLE OF CONTENTS AMENDMENT.—The table 

14 of contents in the first section of the National Security 

15 Act of 1947 is amended by adding at the end the fol16 lowing: 

‘‘Sec. 1105. Whistleblower protections for contractors and grantees of the intelligence community.’’. 

Æ 


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