New ACLU Report Sheds Light on Lack of Protection for National Security Whistleblowers

May 14, 2007 12:00 am

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Congress Must Reform Whistleblower Protection Laws, ACLU Says

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The ACLU’s New Reporton FBI Whistleblowers, Disavowed: The Government’s UncheckedRetaliation Against National Security Whistleblowers

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BACKGROUND ONWHISTLEBLOWERS
> Atthe expense of safety
>Retaliating against whistleblowers
>Invoking “state secrets” privilege
>Covering government misconduct

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>Sibel Edmonds v. Department of Justice: A Patriot Silenced, Fighting toKeep America Safe

WASHINGTON – The American Civil Liberties Union today released a new report detailing a glaring lack of protection for government employees who uncover wrongdoing or national security breaches.

“We cannot trust national security and intelligence agencies to police themselves, yet we leave frontline workers who report serious government misconduct and potential security risks, completely unprotected from retaliation,” said Melissa Goodman, an attorney with the ACLU National Security Project and one of the authors of the report. “Without whistleblowers, we would have never learned about the shocking abuse of prisoners at Abu Ghraib, or that the National Security Agency engaged in warrantless surveillance of our phone calls and e-mails. Whistleblowers deserve our gratitude, not scorn and mistreatment.”

In the report, Disavowed: The Government’s Unchecked Retaliation Against National Security Whistleblowers, the ACLU points to several flaws in current law that leave national security whistleblowers unprotected. In particular, the Whistleblower Protection Act, which was passed by Congress to encourage government employees to disclose wrongdoing, does not apply to employees of most agencies involved in intelligence and national security, including the FBI, the CIA, the NSA, and the Defense Intelligence Agency. National security whistleblowers can be retaliated against even for disclosing wrongdoing to Congress.

Those few national security whistleblowers who are covered by the law are still often left unprotected, said the ACLU. The administrative and federal circuit courts that oversee whistleblower claims consistently interpret the Whistleblower Protection Act narrowly and have been consistently hostile to whistleblower claims. Congress has already amended the act at least twice to correct narrowing interpretations of the law.

The ACLU report highlights five current and former government employees who were left unprotected from retaliation after reporting potential security breaches. One employee, FBI translator Sibel Edmonds, was fired after reporting that the bureau’s translation services were plagued by incompetence and a lack of urgency, as well as by serious security lapses. Bogdan Dzakovic, a team leader for the Federal Aviation Administration, was relieved of all duties and responsibilities after filing a report detailing serious flaws with aviation security.

Other whistleblowers featured in the ACLU report include former FBI Special Agent Michael German, who reported wrongdoing in a counterterrorism investigation, Frank Terreri, a federal air marshal who voiced concerns over mishandling sensitive information, and Russell Tice, a former senior intelligence analyst who reported suspicions about potential espionage and was later blocked from talking to Congress about his concerns regarding NSA surveillance activity.

The ACLU also charges in its report that the Bush administration is using secrecy as a tool to shield itself from disclosure of embarrassing and even criminal information. In the past few years, the government has aggressively argued that its need for absolute secrecy prevents disclosure of information pertaining to torture and abuse of detainees, NSA warrantless wiretapping, the CIA’s practice of kidnapping people and sending them to other countries for torture and interrogation, and the FBI’s use of the Patriot Act’s expanded surveillance powers.

Secrecy, over-classification, and the threat of prosecution under the Espionage Act also prevents whistleblowers from stepping forward to disclose wrongdoing that involves classified information. As a result a whistleblower must decide if alerting the public to illegal government actions or an abuse of government authority is worth risking criminal prosecution.

The ACLU today asked Congress to immediately grant meaningful protections to national security whistleblowers and to once again fix the Whistleblower Protection Act. The ACLU is also urging Congress to actively oversee and limit the ability of executive agencies to use secrecy as a tool to silence whistleblowers.

“The brave men and women working to protect our nation deserve the best whistleblower protection Congress can give them,” said Caroline Fredrickson, director of the ACLU’s Washington Legislative Office. “We can no longer trust an administration that consistently invokes national security to hide its own actions, but then punishes and silences whistleblowers who reveal safety risks.”

On March 15, the U.S. House of Representatives approved 331-94 the Whistleblower Protection Enhancement Act of 2007, a comprehensive whistleblower protection reform bill that would implement many of the recommendations the ACLU makes in its report. The ACLU is urging the Senate to improve upon the House bill.

The ACLU report comes in the middle of Washington Whistleblower Week, which was organized by 40 public interest organizations and hundreds of whistleblowers across the country. The groups hope to put pressure on lawmakers to finally enact true whistleblower protection.

The ACLU report is available at: www.aclu.org/whistleblower.

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