The National Security Whistleblower Protection Act

(model legislation)

At Act

To protect from retaliation prospective or actual whistleblowers in agencies or departments of

the federal government charged with law enforcement, security, or intelligence functions and
missions; to prohibit and to provide punishment for acts of waste, fraud, abuse, mismanagement,
or criminal conduct by any federal official involved in law enforcement, security, or intelligence
activities or programs; 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; Table of Contents.

(a) Short Title. – This Act may be cited as the “National Security Whistleblower Protection
Act of 2021”.
(b) Table of Contents. – The table of contents for this Act are as follows:

Sec. 1. Short title; table of contents

Sec. 2. Bar on Misuse of Classification System
Sec. 3. Whistleblower Covered Release Pathways
Sec. 4. Whistleblower Safe Harbor Provision
Sec. 5. Disclosure Public Reporting Requirement
Sec. 6. Automatic Disclosure Provision
Sec. 7. Prohibition on Interference with Reporting of Waste, Fraud, Abuse, or Criminal
Behavior.
Sec. 8. Improper Classification Determination and Disposition Process
Sec. 9. Rules of Construction
Sec. 10. Definitions

Section 2—BAR ON MISUSE OF CLASSIFICATION SYSTEM

(a) In General.--Notwithstanding any other provision of law, in no case shall information be

classified, continue to be maintained as classified, fail to be declassified, or otherwise
deemed not releasable to the public in order to:

(1) conceal violations of law, inefficiency, or administrative error;

(2) prevent embarrassment to a person, organization, or agency;
(3) restrain competition; or
(4) prevent or delay the release of information that does not require protection of a
specific intelligence source or method not otherwise publicly known. 
 (b) Public Release Requirement.—Any record—whether designated a permanent or
temporary record—which is inappropriately marked, designated or otherwise declared to be
classified by an original classifying authority or their designee, or that is being withheld from
public release under another statute, regulation, or administrative dissemination restriction that
meets any of the criteria in Section 2 shall automatically be considered illegally so designated,
shall be considered unclassified, shall be released in full without redactions, and the release of
said illegally designated records shall be deemed in the public interest and lawful under the
Constitution and the laws of the United States, Provided that the allegation of the misuse of the
classification system is transmitted via one or more of the whistleblower complaint pathways
designated in Section 3, below.

Section 3. WHISTLEBLOWER COVERED RELEASE PATHWAYS.

(a) In General. – Any release made pursuant to Section 2 must initially be made to either

(1) the department or agency inspector general of the department or agency against
whom the allegation and related disclosure pertain, unless the employee or contractor
seeking to make such a disclosure has a good faith belief that the department or
agency inspector general would not take seriously the allegation or protect the person
seeking to make a disclosure; or
(2) in the case of Intelligence Community employees or contractors, the Intelligence
Community Inspector General, unless the employee or contractor seeking to make
such a disclosure has a good faith belief that the Intelligence Community Inspector
General would not take seriously the allegation or protect the person seeking to make
a disclosure; or
(3) the Government Accountability Office; or
(4) the Office of Special Counsel; or
(5) a Member of Congress or Congressional committee or subcommittee.

(b) Investigation Required. –Any entity in Section 3(a) that receives a disclosure from a
covered whistleblower pursuant to this act shall, within 72 hours of the receipt of said
disclosure, immediately begin an investigation into the allegations made by the covered
whistleblower.
(c) Provision for Cleared House or Senate staff to support an Investigation.—If a member of
the House of Representatives or the Senate requires the services of one or more staff
employees of the House or Senate to assist them in investigating a disclosure made by a
covered whistleblower,
(1) the relevant House or Senate Security Office shall, upon request and forthwith, assist
said House or Senate member with obtaining the appropriate security clearances for
staff designated to assist in the investigation, and;
(2) the Director of the Office of Management and Budget shall instruct the relevant
Executive branch agency or department responsible for managing the needed
clearances to conduct and complete any necessary background investigations or
adjudications within 30 days of receiving such a request.

Section 4. WHISTLEBLOWER SAFE HARBOR PROVISION.

 (a) In General. –Upon confirmation of the receipt of said disclosure by the designated entity
listed in Section 3(a), any executive branch employee or contractor shall be held harmless
for any subsequent disclosure by said designated entity of records inappropriately
marked, designated or otherwise declared to be classified by an original classifying
authority or their designee, or that is being withheld from public release under another
statute, regulation, administrative authority, or dissemination restriction hat meets any of
the criteria in Section 2.

Section 5. DISCLOSURE PUBLIC REPORTING REQUIREMENT.

(a) In General.—The entity that receives a disclosure made pursuant to Section 2 shall,
within 72 hours of the receipt of said disclosure, make public the fact that such a
disclosure has been received, including the nature of the allegation and the department or
agency involved, and that an investigation into the allegations is underway.

Section 6.  AUTOMATIC DISCLOSURE PROVISION.

(a) In General. --Any executive branch employee or contractor shall be held harmless for any
subsequent public disclosure of records inappropriately marked, designated or otherwise
declared to be classified by an original classifying authority or their designee, or that is
being withheld from public release under another statute, regulation or administrative
authority or dissemination restriction, that meets any of the criteria in Section 2 if

(1) no announcement by the entity in receipt of the disclosure made pursuant to this
Act is forthcoming within 72 hours from the date of the disclosure; or
(2) more than 180 days pass without the public release of the findings of any
investigation conducted pursuant to a disclosure and complaint made pursuant to
this Act.

Section 7. PROHIBITION ON INTERFERENCE WITH REPORTING OF WASTE, FRAUD,

ABUSE, MISMANAGEMENT OR CRIMINAL BEHAVIOR.

(a) In General. -- Notwithstanding any other provision of law, any civil officer of the federal
government or government contractor that retaliates through an investigation, personnel,
security clearance or any other discriminatory act against a covered whistleblower that
could chill the whistleblower from seeking to disclose or disclosing covered information
to an entity listed in Section 3(a) of this Act, shall be subject to not less than 10 and no
more that 20 years in prison, a $1,000,000 fine, or both.
(b) Cause of action provision. –A whistleblower covered under this Act shall enjoy a cause
of action for both criminal and civil relief in federal court for any act of retaliation
prohibited under subsection (a) by any civil officer of the federal government or
government contractor against the covered whistleblower for any disclosure made to any
entity enumerated in Section 3(a) of this Act and (b) Injunctive relief and damages shall
be provided to eliminate the direct and indirect effects of the violation.
(c) Burdens of proof. -- Proceedings for relief under this section shall be governed by the
legal burdens of proof for the Whistleblower Protection Act In section 1221(e) of title 5.
Section 8. IMPROPER CLASSIFICATION DETERMINATION AND DISPOSITION
PROCESS

(a) In General. -- Notwithstanding any other provision of law, the entity receiving a
complaint or allegation from a covered whistleblower pursuant to this Act shall, based on
the advice of competent counsel,
(1) determine whether a document provided by or activity revealed by said covered
whistleblower has been improperly classified or otherwise improperly withheld
from public disclosure; and
(2) if the receiving entity determines the document or activity has been improperly
classified or otherwise improperly withheld from public disclosure, the receiving
entity shall
a) so inform the originating agency or department of said finding; and
b) make a criminal referral to the Attorney General regarding the violation.
(b) Appointment of Special Counsel. – Upon receipt of a criminal referral pursuant to Sec.
8(2)b of this Act, the Attorney General shall,
(1) through a random process overseen by the Office of Special Counsel, select at
random a Special Counsel to investigate and prosecute the referred offense;
(2) take no action whatsoever to interfere, obstruct, delay or otherwise undermine an
investigation so referred and otherwise recuse him or herself with any
involvement in said investigation.
(c) Bar to Assertion of Exclusionary Privileges or Doctrines. – No Executive branch official,
whether elected, appointed, or a civil officer, may assert, in connection with a criminal
investigation initiated pursuant to Sec. 8(2)b of this Act, executive privilege or any
privilege in connection with United States v. Reynolds, 345 U.S. 1 (1953), and any such
assertions, whether verbal, in writing, or electronic, shall be deemed null and void, with
no legal authority or status.
(d) Bar to removal of investigating officials absent cause. – With respect to a covered
whistleblower complaint or allegation made to an Executive branch entity listed in
Section 3, no Executive branch official, whether elected, appointed, or civil officer, may
take any action to remove or replace any Executive branch employee involved in the
investigation of a complaint or allegation made pursuant to this act absent an indictment
in federal court based on authentic, original documentary evidence of a violation of
federal law.
(1) Evidentiary authenticity validation requirement. – Any indictment brought
pursuant to Sec. 8(d) of this act shall require independent authentication and
verification of the alleged evidence of criminal activity by the court via and
independent Special Master, who shall report their findings and recommendations
in the matter to the judge with jurisdiction in the case.

Section 9. RULES OF CONSTRUCTION.

(a) Repeal of Intelligence Community Whistleblower Protection Act.—Title VII of Public

Law 105-272 is hereby repealed.
(b) Severability clause.—If any provision of this Act, or the application of this Act to any
person or circumstance, is held to be unconstitutional, the remaining provisions of this
 Act, and the application of the remaining provisions of this Act to any other person or
circumstance, shall not be affected thereby.

Section 10. DEFINITIONS.

In this Act:

(1) Covered Whistleblower. –The term “covered whistleblower” means any federal
employee or contractor who makes a disclosure to an entity enumerated in Section 3(a) of
this Act.