DISAVOWED: the Government’S Unchecked Retaliation Against National Security Whistleblowers
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DISAVOWED: The Government’s Unchecked Retaliation Against National Security Whistleblowers WRITTEN BY MELISSA GOODMAN, CATHERINE CRUMP, AND SARA CORRIS DISAVOWED: THE GOVERNMENT’S UNCHECKED RETALIATION AGAINST NATIONAL SECURITY WHISTLEBLOWERS Written by Melissa Goodman, Catherine Crump, and Sara Corris Copyright 2007 Nadine Strossen President Anthony D. Romero Executive Director American Civil Liberties Union 125 Broad Street, 18th Fl. New York, NY 10004 Phone: (212) 549-2600 Fax: (212) 549-2652 aclu.org National Security Whistleblowers Risk Everything to Shine Light on Government Misconduct EXECUTIVE SUMMARY There is a disturbing and systematic pat- ªMost national security whistleblowers tern of government retaliation against are not protected by the Imagine you work for the government. employees who uncover weaknesses or Whistleblower Protection Act. For an agency tasked with protecting the abuses in our national security apparatus. nation’s security – the CIA, the NSA, the This pattern of retaliation hurts not only the ªNational security whistleblowers who FBI. You love your job and you love your whistleblowers retaliated against, but the disclose abuses related to classified country. You have a duty to uphold the law American public. The public has a right to matters are unprotected. and the Constitution. The government know about government wrongdoing and trusts you with secrets – you’ve signed a security breaches. Though limited secrecy ªNational security whistleblowers can secrecy agreement and work with classi- may be necessary to protect national secu- be retaliated against even for fied information. And then you uncover rity, secrecy is all too often used as a shield disclosing wrongdoing to Congress. something deeply troubling. Maybe you’ve to hide illegal or embarrassing govern- learned about a surveillance program ment conduct. Overclassification of infor- ªWhen an agency retaliates against a that violates the law and the Constitution. mation makes it all the more important national security whistleblower by Or your agency is ignoring a serious secu- that we establish clear protections that taking away her security clearance, there is little the whistleblower can rity problem. Or you’ve watched others allow national security whistleblowers to do to save her job. torture a detainee during interrogation. Or come forward. The public needs to know you know the government is holding when our government is doing something Secrecy can be used all too easily as someone in a secret prison outside of any wrong – and we will never know without ª a weapon to silence national security legal system. Do you stay silent or do you whistleblowers. Whistleblowers deserve whistleblowers and prevent them speak up? Who do you tell? Do you have our gratitude, not scorn and mistreatment. from finding legal help or obtaining any legal protection? justice in court. It is important to keep in mind that with- out government whistleblowers we Whether a government employee National security whistleblowers would never have learned about the ª decides to speak out is intensely person- often find themselves improperly the shocking abuse of prisoners at Abu al – but almost all national security subject of retaliatory internal Ghraib or that the NSA was engaged in whistleblowers decide to disclose wrong- investigations. doing because they believe they have a warrantless surveillance of our phone calls and emails. Only an informed public patriotic duty to do so. They believe they National security whistleblowers who can make smart electoral choices and ª are acting in the best interests of nation- are lucky enough to be covered by al security. The vast majority of whistle- correct bad policy judgments. We need to the Whistleblower Protection Act are blowers start by reporting wrongdoing up know what government officials are not provided any real protection. the chain of command and go public (i.e. doing so that we can hold them account- able when they commit illegal or uncon- make disclosures to Congress or the ªNational security whistleblowers press) only as a last resort. stitutional acts, abuse our trust, or waste receive little protection from the our tax dollars. First Amendment. Many employees in national security agencies blow the whistle at their peril. This report aims to highlight the lack of They find no protection in the vast patch- real legal protection for national security work of laws designed to protect whistleblowers. The whistleblowers pro- whistleblowers. Whistleblowers often filed in this report serve as concrete, real- find themselves sidelined, without a life examples of what happens when security clearance, without a job, dis- national security whistleblowers are left credited, the victim of a smear cam- unprotected from retaliation. The follow- paign, investigated, labeled crazy, a bad ing flaws in whistleblower protection law team player, a liar, isolated. are discussed in this report: 4 AMERICAN CIVIL LIBERTIES UNION National security and intelligence agen- • Get rid of court-imposed hurdles to cies should not be trusted to police them- successful Whistleblower Protection selves, and should not be able to retaliate Act claims. against whistleblowers with impunity. For this reason, the ACLU recommends that • Impose time limits and require jury Congress act immediately to: trials where government watch-dog agencies fail to act on whistleblower ªProtect whistleblowers in national disclosures and complaints. security agencies from retaliation: • Get rid of the Federal Circuit monopoly • Make legal protection real and over whistleblower claims. meaningful. ªFix the Inspector General process • Protect national security whistleblowers and make Inspectors General more from retaliation for disclosing independent from the agencies they classified information to Congress investigate. and others authorized to receive classified information. Many of these reforms are already encompassed in pending legislation • Protect national security whistleblowers before both Houses of Congress – legisla- from security clearance-related tion that could be strengthened even fur- retaliation. ther. Polls show the American public over- whelmingly supports congressional action • Protect whistleblowers against to institute stronger laws protecting gov- retaliatory investigations. ernment employees who report waste or corruption. Employees working to protect • Require the agencies to provide our nation deserve the best whistleblower guidance and training about making protection Congress can give them. whistleblower complaints. • Permanently codify existing anti-gag provisions that prohibit interference with employees’ ability to speak with Congress. ªLimit the government’s ability to use secrecy as a weapon to defeat whistleblower court cases – particularly the government’s ability to use the state secrets privilege. ªFix the Whistleblower Protection Act: • Restore a reasonable definition of “any disclosure” and restore normal standards of proof. DISAVOWED 5 WHISTLEBLOWER CASE STUDY Michael German Michael German became an FBI Special Agent in 1988, immedi- While the amended reports now admitted that the FBI had ately after graduating from law school. “Joining the FBI was a indeed monitored a meeting between the two groups, it falsely childhood dream,” German recalled, “and I wanted to do it all.” characterized the nature of the meeting by omitting any men- tion of terrorism. German threw himself into his work, repeatedly volunteering for some of the most dangerous and difficult assignments the FBI Meanwhile, senior FBI officials took concerted steps to retaliate had to offer. He twice went undercover to infiltrate domestic ter- against German for blowing the whistle. Overlooking his previous rorist groups, solving a number of bombings and preventing other success, the Unit Chief of the Undercover Unit at FBI planned acts of terror by helping to win convictions against indi- Headquarters told his staff that German would “never work viduals who were producing illegal weapons. German was fre- undercover again.” When an agent working an unrelated terror- quently recognized, both inside the Bureau and out, for his intelli- ism case attempted to use German in an undercover role, he was gent and valiant work. prevented from pursuing the investigation for almost a year because FBI Headquarters refused to submit the case for “After the terrorist attacks on September 11, 2001 I expected the approval. A second terrorism investigation was allowed to wither FBI to put my counterterrorism experience to use,” German said. on the vine all for the sake of punishing German for whistleblow- He did not have to wait long. In early 2002 German was asked to ing. To German, the most lamentable thing was that “the benefit assist in an FBI counterterrorism investigation that started when of my experience in infiltrating terrorist groups was lost to other the FBI caught on tape a secret meeting between a member of a FBI undercover agents because I was barred from providing train- domestic terrorist organization and a supporter of an overseas ing at FBI undercover schools.” Islamic terrorist organization. The purpose of the meeting was to try and develop operational ties between the two groups. “This German endured the FBI’s retaliation for nearly two years. During attempt was a potential nightmare,” German said, “where violent that time, the Inspector General never stepped in to prevent the extremists already in the U.S. would be doing the bidding of a for- retaliation, and