When it comes to whistleblower retaliation, there's no case quite like Richard Barlow's.
POGO recently released a Richard Barlow resource page, with dozens of documents and news articles relating to his case. While working as a counter-proliferation officer at the Central Intelligence Agency and the Office of the Secretary of Defense in the late 1980s, Barlow learned that top Executive Branch officials were allowing Pakistan to illegally manufacture nuclear weapons. He also discovered that these officials were lying to Congress about Pakistan's nuclear weapons network, headed by A.Q. Khan, because telling the truth would have obligated the U.S. to cut off military aid to Pakistan, at a time when covert aid was being funneled through Pakistan to aid the Afghan jihadists in their struggle against the Soviet Union.
Because he merely suggested that Congress should know the truth about this critical national security threat, Barlow became the target of a vicious retaliatory campaign that cost him his job and his security clearance, and caused irreparable damage to his marriage and personal life.
In the nearly twenty years since his firing, numerous follow-up investigations have confirmed Barlow's allegations and discredited those who labeled him a traitor. At one point, a near-unanimous majority in Congress, along with President Clinton, concurred that Barlow should be granted modest relief in the form of a pension.
But a few individual Members of Congress have so far succeeded in thwarting any congressional effort to either compensate Barlow or to address the numerous national security issues raised by his case.
In 1998, despite widespread consensus that Barlow deserved to be compensated, the Senate Judiciary Committee bowed to the objections of a single senator, John Warner (R-VA), and referred Barlow's case to the Court of Federal Claims. The Court was supposed to examine the factual basis for a Senate amendment to provide Barlow with relief. During the proceeding, however, a number of Executive Branch officials (including George Tenet, Director of Central Intelligence, and Michael Hayden, Director of the National Security Agency) invoked the State Secrets Privilege to block all evidence of crimes against Congress. The judge accepted the invocation of the State Secrets Privilege, but allowed the trial to continue, meaning that Barlow was forced to make his case without access to nearly any evidence of Executive Branch misconduct.
"The executive branch, by asserting the state secrets privilege, essentially told the court that it was not entitled to know the facts, and the court, in accepting this position, essentially told the Senate--and Congress--that it was not entitled to know the facts."
The Senate Armed Services Committee recently considered another amendment, supported by POGO (see here and here), to provide Barlow with pension relief. But this time, a few anonymous Members on the Senate Judiciary Committee placed a hold on the bill, essentially sending it to its death.
Last week, the Senate Judiciary Committee held a hearing on a legislative initiative to reexamine the State Secrets Privilege. In his testimony at the hearing, Louis Fisher argued that judges should not automatically accept the Executive Branch's invocation of the State Secrets Privilege, as was the case with Barlow's trial:
"In state secrets cases, federal judges have at times treated executive assertions about state secrets with "deference" or "utmost deference." Either standard undermines the principle of judicial independence, the essential safeguard of checks and balances, and the right of private litigants to have a fair hearing in court. Unless federal judges look at disputed documents, we do not know if national security interests are actually at stake or whether the administration seeks to conceal not only embarrassments but violations of law."
It is encouraging to see Congress turn its attention to the abuse of the State Secrets Privilege by Executive Branch officials. Nonetheless, as Barlow points out in his statement to the Senate Judiciary Committee, the recently proposed State Secrets Protection Act may not have made much of a difference in his case. For instance, it doesn't instruct courts how to handle properly classified information that shows evidence of criminal activity by the Executive Branch.
So after nearly two decades, Congress continues to deny relief to a patriotic intelligence officer, choosing instead to protect Executive Branch officials who lied to Congress and jeopardized national security.
Stay tuned in the weeks ahead, as POGO will be giving you an opportunity to take action to help resolve Barlow's case.
-- Michael Smallberg