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Why Protect Whistleblowers?

Michael German,
Senior Policy Counsel, ACLU Washington Legislative Office
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June 10, 2009

(Originally posted on Daily Kos.)

In the weeks leading up to the September 11, 2001 terrorist attacks, FBI officials denied a New York agent’s request to start looking for a known al Qaeda operative who had entered the United States, in what the 9/11 Commission would later call a clear misunderstanding of the law (PDF). The agent sent an angry e-mail warning that “someday someone will die.” At the same time an FBI supervisor in Minneapolis, stymied from pursuing a Foreign Intelligence Surveillance Court order to search Zacharias Moussaoui’s computer by headquarters officials who later admitted to that they did not know the legal standard necessary to obtain one, shouted that he was trying “to stop someone from taking a plane and crashing it into the World Trade Center.”

These agents clearly knew that gross mismanagement in the FBI’s counterterrorism program posed a substantial threat to public safety, but neither formalized his complaint or pushed it up the chain of command. Perhaps, like one third of those polled in a 1993 Merit Systems Protection Board study (PDF) of the federal workforce who did not report illegal or wasteful activities they had seen on the job, they feared retaliation. And not without good cause, since the administrative process Congress created to protect some federal employees in the Whistleblower Protection Act are completely ineffective, as a number of whistleblowers and whistleblower advocates testified in the House of Representatives last month. Worse yet, employees of the FBI, CIA and other intelligence agencies are exempt from even these meager protections.

After 9/1,1 President Bush called on FBI, CIA and other intelligence agents to report any breakdowns in national security and FBI Director Robert Mueller vowed to protect Bureau whistleblowers. But the few FBI employees who answered this call — myself, Sibel Edmonds (PDF), Jane Turner (PDF), Robert Wright, John Roberts (PDF), and Bassem Youssef (PDF) — were not protected. It should be no surprise then that a Department of Justice Inspector General survey (PDF) released in May found that 42 percent of FBI agents don’t report all of the misconduct they see on the job, and 18 percent never report any.

The myriad scandals involving the FBI, CIA and NSA from spying on political activists, to warrantless wiretapping, to torture, more than demonstrate the need for more whistleblowers in the intelligence community. It’s even been reported that the intelligence agencies sometimes lie to Congress about their activities, but Congress has been too slow to protect the brave agents within these agencies that might actually tell the truth. The ACLU vigorously supports meaningful legal protections for all whistleblowers, and particularly for federal employees and contractors within the law enforcement and intelligence communities, where abuse and misconduct can have the most direct consequences to our liberty and security.

With renewed calls for greater accountability over the intelligence community, there is a new effort in Congress to protect whistleblowers. A House bill, H.R. 1507, would finally provide real protections to all federal employees and contractors — including intelligence agents — who are willing to speak out when waste, fraud or abuse of authority endanger our security or violate the law, by providing independent due process guaranteed by the right to jury trials once the administrative process is exhausted. But as important as what this bill does for national security whistleblowers is what it does not do to national security: H.R. 1507 does not authorize intelligence community employees to leak classified information to the media or to any other person who does not have the appropriate security clearances. In fact, by providing safe avenues for agency employees to report waste, fraud and abuse to the appropriate authorities and to Congress, there will be less of a need to anonymously leak information in order to have serious problems addressed.

But there is work yet to do. The Senate whistleblower bill, S. 372, while making some meaningful improvement to the current administrative process, does not provide federal whistleblowers the right to take their cases to a jury and the bill does not extend any protections to FBI, CIA or other intelligence agency employees.

Congress needs access to information about mismanagement and misconduct within the intelligence community, both classified and unclassified, in order to perform its constitutional duty to check abuses of power and ensure Americans’ security is being adequately protected. But Congress cannot perform effective oversight unless informed federal employees and contractors are willing to tell the truth about what is happening within these agencies. And it is simply unfair to expect them to tell the truth if they know it will cost them their jobs.

The Senate is holding a hearing on its bill tomorrow. Let your voice be heard. Tell your Senator to extend meaningful protection to the workforce that is charged with protecting us all by granting all federal employees full and independent due process rights when they blow the whistle during government investigations or refuse to violate the law, enforced through jury trials in federal court once administrative measures are exhausted, and “full circuit” review. Perhaps the next time FBI or CIA agents see breakdowns in terrorism investigations, they will have the confidence to report these problems to Congress before another disaster happens.

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