Anti-leak policy could cost some feds their retirement

Thursday - 4/21/2011, 9:31am EDT

Bill Bransford, partner, Shaw Bransford & Roth

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By Suzanne Kubota
Senior Internet Editor

Leak a little, lose a lot.

That's the idea behind part of a newly proposed Intelligence authorization act would allow intelligence agencies to strip employees of their pension and other benefits, if they're accused of improperly disclosing information to unauthorized persons.

"I've never seen anything like that before," Bill Bransford, partner at Shaw, Bransford & Roth, told Federal News Radio. The act puts in some "very serious penalties that people will think seriously about that may cause them to not disclose classified information. We're talking about a provision that would take away their retirement benefits."

Non-IC feds can lose their retirement benefits too, said Bransford, "if you're convicted of espionage, treason, sabotage, things like that, or conspiracy to commit those crimes." The difference, said Bransford, is "in those cases, you're convicted by a jury (with) an evidentiary standard of 'beyond a reasonable doubt' with the right to appeal to a Court of Appeals to make sure there wasn't any abuse." As proposed, the Intelligence Authorization Act would keep the actions behind closed doors within the intelligence agencies.

"There is a requirement for due process in the statute, but the problem is in the intelligence community, very few employees have a right to due process. There is an internal due process procedure that's in place, but it's not a right that employees have."

The real wrinkle, said Bransford, is while the proposed act gives the Director of Intelligence the authority to take away retirement benefits, there's no proposed change to laws covering those benefits allowing them to be taken away.

It's a fine point that Bransford found intriguing.

I think it is open to a legal challenge and one of the things I would probably do if I caught this case after the law went into effect is to raise a legal challenge that the law hasn't changed the retirement statute that gives these benefits - it just gives the authority to take it and without changing the other statute, can you really do that? That's an interesting legal issue and there may very well be something hidden away in the bill or some other piece of legislation that makes that change to the retirement statute.

You can follow the progress of the Intelligence Authorization bill, S. 719, Section 403 which grants the Director of National Intelligence (DNI) and intelligence agency heads extraordinary authority to penalize federal employees in the intelligence community, including depriving them their pensions by clicking on Federal News Radio's Bill tracker: Proposals affecting fed pay, benefits.