James Clapper at GEOINT Conference in April 2014

Two of the foremost advocates for whistleblowers in the United States Senate are pushing for answers from Director for National Intelligence James Clapper on “continuous monitoring” of security clearance holders in the federal government and how this undermines whistleblower protections as well as “constitutional protections for the separation of powers between the executive and legislative branches.”

“Continuous monitoring” appears to be the euphemism intelligence officials are using to refer to a policy of total surveillance that has been adopted in the aftermath of former NSA contractor Edward Snowden’s disclosures to the press. [Author's note: I'll be using the words "total surveillance" because it doesn't obscure what intelligence agency leaders are trying to do here.]

Senators Ron Wyden and Chuck Grassley sent a letter to raise concerns about plans for total surveillance of security clearance holders.

“We recognize the need to ensure that government employees are not unlawfully disclosing classified information, and that some heightened monitoring of certain clearance holders may be appropriate. However, there are constitutional, statutory, and prudential limits to that monitoring,” the senators declared in a letter sent on June 18.

Concern about the likelihood that members of Congress who have security clearances would be subject to surveillance and whistleblower communications to Congress members would be intercepted was expressed.

“Any continuous evaluation or monitoring of holders of clearances in the legislative branch by the executive branch would raise serious issues related to the separation of powers and potentially violate fundamental privileges of the legislative branch guaranteed in the Constitution,” the senators argued. “Accordingly, so that we may discuss the serious constitutional issues implicated by any such claim, please provide an explanation as to whether you believe that the executive branch has the authority to engage in ongoing monitoring of legislative branch employees with clearances or members of Congress with access to classified information.”

The senators referenced remarks by Clapper before the Senate Armed Services Committee in February:

…The system we use today is, of course — people will — and I’m speaking now of the top-secret SCI level clearances, although it applies as well — but you get an initial clearance and then at some period after that — it’s supposed to be five years — a periodic reinvestigation is done to update the currency of that person’s clearance.

What we need is — and this is, I think, pretty much recognized — is a system of continuous evaluation where when someone is in the system and they’re cleared initially, then we have a way of monitoring their behavior, both their electronic behavior on the job as well as off the job to see if there is a potential clearance issue.

And so our plan within the intelligence community is to declare initial operational capability, which is about six or seven data streams, by this September and what we’re calling fully operational capability by September of ’16, which is pretty ambitious… [emphasis added]

Considering the fact that initial operation of this total surveillance capability will occur in months, Wyden and Grassley advised, “Any monitoring of employees’ ‘electronic behavior on the job as well as off the job’ needs to include safeguards to prevent the chilling of legitimate whistleblower communications and protect the confidentiality of any legally privileged information.”

“Procedural safeguards to prevent the targeting of whistleblowers for extra scrutiny as well as minimization requirements to avoid collecting protected communications are some examples of the sorts of safeguards that should be developed.  If captured inadvertently, protected disclosures certainly should never be routed back to an official involved in any alleged wrongdoing reported by the whistleblower.”

The Senate intelligence authorization bill for 2014 includes statutory “protections” for intelligence agency whistleblowers who go through channels. It also “requires the [Director for National Intelligence] to set standards to improve security background investigations through continuous evaluation of intelligence employees and contractors.”

How can channels maintained to provide avenues for whistleblowers to reveal criminal misconduct coexist with a system of total surveillance or “continuous evaluation” without being entirely compromised? They would seem to be at odds with each other.

Channels depend on trusting employees that they will make disclosures responsibly when they truly believe something wrong is happening. On the other hand, the system of total surveillance promotes a culture of suspicion within an agency or institution. It reinforces the fear that anyone is capable of turning on their country at any moment and every employee should be watched during every minute of their job.

Additionally, there are currently at least 5.1 million people with security clearances. There are 1.5 million people who have top-secret security clearances.

Any system would probably be initially aimed at those 1.5 million in their activities on and off the job. What information would be collected about family, friends and associates? How much of an employee’s social network would the Office of Director for National Intelligence seek to map and monitor?

An Office of Acquisitions posting on the government website for contractors seeking federal business opportunities offers details the “Continuous Evaluation Program Security Survey System” being established.

“The Security Survey System will receive data from Human Resource (HR) systems and other security systems. This data will be used to create and maintain staff profiles. The system must have error checking and handling, and the ability to reconcile incoming data to existing staff profiles, including to create an account if no account exists based upon data from another system,” according to a synopsis.

In other words, dossiers are going to be created of suspicious employees who have security clearances, who can be monitored even if they have not taken information with the intent to make unauthorized disclosures of information.

Employees would be required to complete “security surveys,” which it seems like the system would send to employees on a fairly regular basis to make sure they have not developed into a threat. The system would also request that “key life events” be “self-reported” by employees.

This proposed system, which the State Department wanted to implement, does not appear to collect information on staff when they are not on the job.

There are millions of dollars to be made by private contractors off this new system of total surveillance of government employees with security clearances. It already costs billions to do background checks of employees.

Furthermore, the development of this system is in addition to an Insider Threat program, which McClatchy Newspapers reported equates “leaks” with “espionage,” encourages snitching and instructs employees to be on the lookout for individuals suffering from “narcissism” or “antisocial personality disorder.”

McClatchy also previously reported that thousands of Americans had their personal data passed on to US agencies like the Central Intelligence Agency (CIA), Internal Revenue Service (IRS) and NSA as part of an effort to uncover “untrustworthy federal workers.” A truly McCarthy-esque list “unprecedented” in nature was disseminated widely with ease when there was no good reason for the government to be sharing this data at all.

It is in addition to Clapper’s directive prohibiting intelligence agency employees from having “unauthorized contact” with the press.

The senators noted, “If potential whistleblowers believe that disclosing waste, fraud or abuse means putting a target on their backs for retaliation, they will be intimidated into silence.  The failure to provide such protected alternatives could result in whistleblowers choosing to make unprotected disclosures in public forums, with potential negative consequences for national security.”

But the institutions do not think they are corrupt so why would they put extra effort into protecting whistleblowers? They are going to put more into systems of control if nobody stops them because the ability of the agency to work unimpeded by leaks from whistleblowers or spies is more critical to their mission.