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Holding the Government Accountable

Between a Rock and a Hard Place: There are Still No Good Options for Intelligence Community Whistleblowers

While whistleblowers in the intelligence community (IC) have never had it easy, IC contractors are practically defenseless when they are retaliated against. Yet two and a half years after Edward Snowden launched the topic onto center stage, astoundingly little has changed for IC whistleblowers—contractors or not. Much of this inaction can be attributed to the belief that if people go through the proper channels, it must eventually lead to the right result. If only this were true. Serious and systemic problems continue to exist in the accountability system of the IC. Over the past several years, many whistleblowers have stood up, called out, and confronted powerful people. And they have paid the price for it. For them, the loss of their career and livelihood, revocation of security clearances, personal bankruptcy due to legal fees, the total loss of any privacy, and vicious attacks by the country they served are all par for the course.

The PEN America Center, which works to defend journalists and the freedom of expression, recently released a report analyzing both the shortcomings of whistleblower protection laws and common misunderstandings in their applicability. “Secret Sources: Whistleblowers, National Security, and Free Expression,” lays out the threadbare status of protections for IC whistleblowers.

While the Intelligence Community Whistleblower Protection Act of 1998 (ICWPA) gives IC employees the right to report issues internally, it fails to prohibit employment retaliation and provides no appeal process when employees are retaliated against for exercising that right. This means that an IC employee has the right to report fraud, but that the people committing the fraud are not prohibited from re-assigning, demoting, disciplining, or even firing the employee. The law is based on the idea that waste, fraud, and abuse is somehow limited to a few individuals, and that by reporting it, everything will work out. As Elizabeth Goitein, who co-directs the Brennan Center for Justice’s Liberty and National Security Program, points out: “The whistleblower laws for intelligence community members pretend that there’s no such thing as agency level misconduct and we know that that’s not the case.” The PEN report also quotes Jesselyn Radack, a whistleblower attorney and head of the Whistleblower and Source Protection Program, emphasizing the fact that “Whistleblowers need recourse outside of the agency and they also need access to jury trials. They need an enforcement mechanism that is not dependent on the agency that is engaged in the wrongdoing and covering-up and retaliating against them.”

The failure of ICWPA can be seen in the fact that only 10 people have filed complaints under this law. One example is William Binney, an NSA contractor, who followed all the proper channels to report concerns regarding the Trailblazer program by working with the House intelligence committee to file an official complaint with the Department of Defense Inspector General (DOD IG). He and others trusted that the internal accountability system would protect them and end the abuses. In return, he had his security clearance revoked, house raided by the FBI, and a gun put to his head while he was standing naked in his shower. Even though the IG eventually produced a classified report based on the evidence provided by Binney and others that substantiated their allegations , the IG had also provided their names to the Justice Department for “potential criminal prosecution under the Espionage Act”—sending a clear message to any other would-be whistleblowers that the IG was not worthy of their trust.

Unfortunately, rather than being a safe haven, the courts are often used as an instrument of retaliation against IC whistleblowers. Even under Presidential Policy Directive 19 (PPD-19), an executive order issued by President Obama in 2012, the justice system cannot be used by whistleblowers claiming retaliation. Agencies, however, remain free to use the courts to prosecute those who speak out. While PPD-19 takes basic steps beyond that of ICWPA to explicitly prohibit retaliation and allow for appeals, there are still gaping holes in their protection. Most notable among those holes is the fact that IC contractors are not granted any of the protections or appeal mechanisms that the directive affords federal IC employees. Another concern is that the appeals process goes through Inspectors General, who may lack real independence and can only make recommendations to agencies. The results of an appeal can therefore simply be ignored by any agency that wants to pretend that they are innocent of not only the original waste, fraud, and abuse, but also retaliation. This conflict of interest, where agencies are responsible for policing themselves gives whistleblowers no reason to believe that anything will change, even if they are vindicated on paper. Highlighting one of the biggest gaps in all of the current IC whistleblower protection laws (and there are many), PEN reports that:

None of the laws or executive orders applicable to intelligence community workers seeking to blow the whistle protects them from retaliatory criminal investigations or prosecution.

Read that again. We protect IC whistleblowers from being fired (on paper), but not from any kind of prosecution. This includes federal employees, not just contractors. PEN continues:

As the Brennan Center’s Elizabeth Goitein commented, “It’s bizarre to me that the legal protections out there for whistleblowers who disclose classified information, such as they are, relate only to administrative consequences and not to criminal prosecution, which is obviously the most draconian of government responses. I don’t think it’s fair to say we want to protect and encourage these kinds of disclosures and therefore we will prohibit some forms of retaliatory actions but not others.” Tom Devine, legal director of the Government Accountability Project (GAP) said, “If it’s not lawful to fire someone for blowing the whistle, it shouldn’t be lawful to put them in jail…”

President Obama has stated that if Edward Snowden “believes that what he did was right, then, like every American citizen, he can come here, appear before the court with a lawyer and make his case.” Many politicians have echoed President Obama’s statement. Former Secretary Hillary Clinton and then-Ranking Member of the House Intelligence Committee, Representative Dutch Ruppersberger (D-MD) have said (respectively) that Snowden “could have gotten all the protections of being a whistleblower,” and that “All he had to do was raise his hand... under the whistle-blower law, he is protected. Unfortunately, these statements mischaracterize the predicament that most IC whistleblowers find themselves in. As the PEN report states:

Under the existing legal framework…They [employees] are not protected for disclosures made to the public, nor are they are protected when they question judgments of legality or propriety concerning public policy matters through internal channels. It is therefore difficult for an intelligence community whistleblower to draw attention to a controversial program or policy that has been approved by an agency and/or Congress, even if the legality, constitutionality or wisdom of that policy is questionable, and/or the policy touches on a matter of significant public concern.

You can begin to appreciate the predicament that some whistleblowers are in. If all the superiors and the relevant Members of Congress already know about a potentially unconstitutional program, reporting it internally is useless, and may provoke retaliation. The alternative of disclosing information to the press may get results, but is legally indefensible under the WWI-era Espionage Act. The Espionage Act, written to punish traditional espionage, does not include any requirement of motive or that any harm is actually done. It simply criminalizes the communication, delivery, transmission, or retention of “national defense information” to any unauthorized party. Despite the broad applicability, the law has rarely been used against people who disclose classified information to the press—at least until the current administration. The Obama administration has used the law to prosecute disclosures to the press on nine occasions, three times more than every administration before combined. The law spells trouble for anyone charged with it, as the PEN report states:

It is extremely difficult for a leaker to defend him or herself from Espionage Act charges. There is no public interest defense to the Act, and courts have ruled that a defendant is not allowed to argue that the leaks were in the public interest nor can they mention the reforms that happened as a result. The courts have also found that the leaker’s intent is irrelevant—at least until sentencing—and that the government “need not show” that the leaked information “could damage U.S. national security or benefit a foreign power, even potentially.” In addition, the courts have rejected the “improper classification” defense, so defendants cannot challenge whether or not documents should have been classified in the first place.

Yet despite its broad applicability, it is almost exclusively applied to whistleblowers, rather than high level officials who leak classified information. The incredible double-standard has been highlighted often, including recently by Danielle Brian. One example of that double-standard is General David Petraeus, who was let off the hook with a $100,000 fine and probation after admitting to revealing significant amounts of highly classified information to his biographer and mistress. In comparison, whistleblower Thomas Drake was charged under the Espionage Act after making what his lawyers claimed were “legal disclosures of unclassified information” to a reporter regarding massive waste and abuse—information he had previously reported to the proper oversight bodies and for which he had been retaliated against. Compare Petraeus’s punishment to the consequences of simply being charged under the Espionage Act (without conviction):

Defending oneself from Espionage Act charges is estimated to cost between $1 million and $3 million should the case proceed to a trial. As Thomas Drake said, “Criminal prosecution completely upends your life… It practically bankrupts you, breaks you and makes you unemployable.” He added that, “By virtue of being charged under the Espionage Act you’re already guilty… People will usually plead guilty under a lesser charge or a reduced sentence, which may still be many years in prison.

In court, Drake refused to “plea bargain with the truth,” even when threatened by the Department of Justice (DOJ) with spending the rest of his life behind bars. After several key rulings against the prosecution, the government was forced to drop all ten original charges. Drake pled guilty to a misdemeanor and was sentenced to one year’s probation and community service. Yet despite being legally cleared, Drake has continued to experience government retaliation for his actions. A recent joint webinar from the DOJ and the Office of the Director of National Intelligence featured Thomas Drake in a lineup beside not only spies like Robert Hanssen and Aldrich Ames, but also terrorists like Nidal Hasan (Fort Hood killer) and Aaron Alexis (Navy Yard killer).

Let us be clear. Thomas Drake is neither a spy nor a terrorist. He is not a felon. He has gone through the justice system and been cleared of any serious wrongdoing. Yet he has been blacklisted, and his reputation is being dragged through the mud. Despite being honored with the Ridenhour Prize for Truth-Telling, he cannot find work that matches his skills. This treatment is unacceptable.

The Project On Government Oversight, along with PEN and the United Nations, have called for the implementation of a public interest balancing test that could be used as a legal defense by national security leakers. A balancing test of this kind would “promote disclosures where the public interest in the information outweighs any identifiable harm to a legitimate national security interest, and requires that the whistleblower disclose no more information than reasonably necessary to expose wrongdoing.” Unfortunately for whistleblowers, reform of the Espionage Act is resisted by those who see it taking the ability to determine what is and is not a national security concern away from the executive and gives the courts. While this is undeniably true, it is also undeniably necessary if we even hope to hold executive agencies accountable.

If real reforms for IC whistleblowers, both contractor and federal employee, are not made, it should come as no surprise that those who are willing to expose waste, fraud, abuse, and unconstitutional activities will continue to have no incentive to go through internal channels. Until the official process protects all IC whistleblowers’ identities, takes their concerns seriously, and enacts real changes, we cannot be surprised when people of conscience do not use it.

Read the full PEN report [PDF].