The House of Representatives passed a whistleblower protection bill by unanimous consent on September 28. It expanded protection for disclosures of government wrongdoing and reformed certain government processes for review of whistleblower retaliation claims. But, the House removed an entire section of the legislation that would have provided some degree of protection for intelligence officials.
The Hill reported “Title II” of the Whistleblower Protection Enhancement Act was completely removed. The section would have “set up whistleblower protections for all intelligence officials that are similar to those that exist for FBI employees, and would have set up a process in the executive branch for reviewing whether security clearances were denied or revoked because of what should be protected disclosure of information under the whistleblower laws.”
According to unnamed House aides, this was coordinated between both Democratic and Republican Party leaders in the house and with the Senate and White House. They decided the language “should not be included in the bill” because they did not have the political will to sort out how to protect national security secrets and also afford intelligence officials protection.
One House representative, Elijah Cummings, did not approve of the removal. “We need to provide meaningful rights to whistleblowers in the intelligence community and we need to amend the law to allow whistleblowers the ability to go to court and have their case heard by a jury,” Cummings said in a statement. “I know this bill represents a compromise based on the political realities of today”—the political reality that President Barack Obama and Congress leaders are more concerned with government secrecy than whistleblower rights—”But the fight is not over.”
Tom Devine of the Government Accountability Project noted the Obama administration had “promised to take executive action on national security whistleblower rights.” Evidently, the administration does not intend to take action. They coordinated with Congress to get rid of the section of the bill that would have protected intelligence officials and there has been no indication from the White House that President Obama opposes the stripping of this section.
Originally Intended to Create New Protections for Intelligence Employees
The language that appeared in the bill before it was removed would have prohibited a “personnel action against an intelligence community employee as a reprisal for making a protected whistleblower disclosure” to the Director of National Intelligence (DNI) or an employee designated by the DNI. It would have covered employees at the Central Intelligence Agency (CIA), the Defense Intelligence Agency (DIA), the ODNI, the National Reconnaissance Office (NRO) and other executive agencies recognized by the President as agencies that have “as its principal function the conduct of foreign intelligence or counterintelligence activities.”
In regards to the ability for an intelligence official to appeal decisions to have their security clearance revoked, the bill would have given officials:
… due process protections comparable to those pertaining to [Whistleblower Protection Act] violations, including: an independent and impartial factfinder; notice and the opportunity to be heard, with the opportunity to present relevant evidence and witness testimony; the right to be represented by counsel; a decision based on the record that is developed; and a decision within 180 days unless the employee or former employee and the agency agree to an extension, or unless the impartial fact-finder determines in writing that a greater time period is needed in the interest of fairness or national security…
The Senate, according to a report written by Senator Joseph Lieberman, had intended to restore the “original congressional intent” of the WPA and part of that restoration included “creating new whistleblower protection for intelligence employees and new protections for employees whose security clearance is withdrawn in retaliation for having made legitimate whistleblower disclosures.” It explicitly recognized, as Lieberman put it, “In a post–9/11 world, we must do our utmost to ensure that those with knowledge of problems at our nation’s airports, borders, law enforcement agencies, and nuclear facilities are able to reveal those problems without fear of retaliation or harassment.” It sought to ensure intelligence officials “in a position to disclose wrongdoing that directly affects” US national security would not be left unprotected.
Now, this report was written before May, when bipartisan leaks hysteria spread in Washington, DC, after details on Obama’s “kill list,” cyber warfare against Iran, and a CIA underwear bomb plot sting operation in Yemen became public information. In June, Lieberman did go on Fox News and called for the passage of an anti-leaks law, the Securing Human Intelligence and Enforcing Lawful Dissemination (SHIELD) Act, which would update the Espionage Act and criminalize government officials making disclosures. The legislation, re-introduced just after WikiLeaks and other media organizations began to publish the US State Embassy cables, was described by an editorial in the New York Times as legislation that “would plainly violate the First Amendment to punish anyone who might publish or otherwise circulate the information after it has been leaked.” The Times also declared, “If we grant the government too much power to punish those who disseminate information, then we risk too great a sacrifice of public deliberation.” Lieberman publicly advocated for this legislation yet he also wrote this report, which shows that even politicians who venomously oppose national security leaks recognize intelligence officials can still be afforded whistleblower protections.
Congress’ Hysteria Over Intelligence Employees Leaking Secrets
Unfortunately for employees of intelligence agencies, politicians prefer hyperventilation over leaks and legislative proposals that clampdown on the flow of information to a political conversation that celebrates whistleblowers. The Senate Intelligence Committee offered anti-leaks proposals in July that were directed at employees of intelligence agencies. Whether intended or not, they were proposals that would effectively chill whistleblowing. For example, “unauthorized disclosures” would require the surrendering of pension benefits. Former employees would also be prevented from entering into contracts with media organizations as “consultants.”
Senators like Dianne Feinstein left in tact the power of House or Senate aides to leak. As the Washington Post’s David Ignatius noted, “Most damaging leaks don’t come from U.S. intelligence agencies. They come from overseas, or they come from the executive branch, or they come, ahem, from Congress. The bill doesn’t address the real source of the leaks it seeks to halt.” Such reason was not enough for politicians to end the madness.
Thomas Drake, a former National Security Agency who blew the whistle on fraud, malfeasance and how the agency was violating the privacy of citizens, suggested the proposals were a result of the government’s failure to make an example out of him.
“They couldn’t make the case with me by going after a whistleblower and scapegoating me,” so now they have to go another route. He mentioned the prosecutions against two other whistleblowers under the Espionage Act, Stephen Kim, a former State Department contractor whose case has essentially been suspended, and Jeffrey Sterling, a former CIA agent whose case the Justice Department moved to a higher court, have failed to produce the desired outcome. Had the government been able to convict him, he said, they would have created a de facto Official Secrets Act, as it would have been much easier for the government to pursue individuals who made “unauthorized disclosures” to the media or public.
A Whistleblower Who Might Have Benefited Had Protections Been in Place
Consider the case of Mark Phillips, who worked at the NRO, a spy satellite agency. In an investigation conducted by McClatchy in July, the news outlet detailed how NRO had been putting polygraph examiners under pressure to obtain personal information on employees and those who apply for jobs. Phillips refused to abuse polygraph tests and pursue “lifestyle” information unrelated to counterintelligence issues (such as details on deviant/criminal sexual behavior, alcohol abuse, illicit drug use, serious criminal activity, unexplained wealth, financial irresponsibility, personal conduct-related behaviors that “call into question the examinee’s trustworthiness and ability to protect classified information and psychological conditions.”
Phillips decided he did not want to participate in a program that strayed from only asking “examinees” about espionage, terrorism, sabotage or sharing classified information without proper authorization. According to McClatchy, he searched for policies and found the NRO “had agreed to follow Pentagon polygraph rules.” He argued to top agency officials that tests had to focus on matters of national security.
Then came retaliation. His performance reviews included the following criticism: “Instead of spending time trying to improve his information collection skills, Mr. Phillips has spent an inordinate amount of time documenting, making complaints and arguing why he believes our program is collecting information in violation of (Pentagon) regulations.” His polygraph sessions were observed by NRO officials there to catch him in a mistake. He was called “insubordinate” and “lazy.” Finally, when the agency concluded a “legal review” of his “assertions” in April and concluded there was “no merit in his complaints,” he knew he could not remain an employee and, in May, he resigned.
Would a whistleblower protection bill with protections for intelligence officials have helped deter officials in the NRO from retaliating against Phillips? It certainly would have provided Phillips clearer avenues to defend himself from within the agency. But, the Obama administration could not find th fortitude to take this moment to grant intelligence officials protections.
Passing Protections Would Have Undermined Obama’s Toughness on “Leaks”
Protections would have conflicted with the Obama presidential campaign’s effort to present Obama as tough on “national security leaks.” Language appears on the 2012 presidential campaign website celebrating his war on whistleblowers:
- The Obama administration has prosecuted twice as many cases under the Espionage Act as all other administrations combined.
- Under the President, the Justice Department has prosecuted six cases regarding national security leaks.
- Before he took office, federal prosecutors had used the Espionage Act in only three cases.
Six individuals have been indicted under the Espionage Act because the Justice Department has the ability. Like one senior Justice Department official told the Washingtonian, “We’re out for scalps.” This official even went so far as to suggest reporters, who talk to sources about classified information, are “putting themselves at risk of prosecution.”
It would be easy to claim that Obama entered the White House and decided to succumb to the culture promoted by the national security state. But, FBI whistleblower Sibel Edmonds wrote in her book, Classified Woman:
…Unfortunately for me, Obama’s presidency was no cause to celebrate. Certainly he “looked and talked” better than his opponents, but that was where differences ended. I had dealt with Obama’s Senate office, and we as national security whistleblowers also had “tried” to work with his office—all to no avail. He was as anti-whistleblower, anti-transparency and anti-accountability as they come, along with many of his colleagues there, including Senator Hillary Rodham Clinton…
His entire first term exists as an example for future presidents, who might wonder how one can effectively govern as an anti-whistleblower, anti-transparency and anti-accountability. Moreover, it is a shining example of how a president can delude their base and party into promoting the idea that a presidential administration carrying out actions that target whistleblowers, increase secrecy and permit government officials and corporate executives to escape accountability somehow do not undermine claims of support for whistleblowers, transparency and accountability.
Finally, the lack of whistleblower protections does not just make some government employees more equal than others. It also means that good government employees, who raise ethical issues in agencies, are likely to be suppressed when they try force an agency to address abuse or corruption. Suppression means good government employees are forced out of agencies and these agencies become reconstitute themselves as even more corrupt than they were before that employee challenged the agency.
Government fraud, malfeasance and wrongdoing is guaranteed to occur and, because politicians will not afford intelligence officials protections, that means civil liberties violations, human rights abuses and possibly even war crimes occur in secret. An employee, whose conscience tells them to raise their voice, remains silent to keep their position because they know sharing details with those at the top of the agency, in Congress or reporters in the press will get them fired.