Whistleblowing Is Patriotic

Today, an op-ed by Central Intelligence Agency (CIA) director Porter Goss ran in The New York Times.  Numerous details, but, more importantly, the overall argument, are wrong.  First, the big kahuna: Goss's assertion that "the term 'whistleblower' has been misappropriated."

Goss says that "those who choose to bypass the law and go straight to the press are not noble, honorable or patriotic. Nor are they whistleblowers."  Wrong.  People who are trying to stop the government from pursuing illegal activities or expose corruption are whistleblowers, are patriotic and deserving of our respect. 

Overwhelmingly, the men and women who do go to the press are coming forward with information they believe needs to become public, because there are grave abuses, whether it is an exorbitant waste of taxpayer dollars, a threat to our constitutional system of government, or something else of significant public interest.  And when they do go to the media, operational details that can benefit our enemies are almost never revealed. 

But why go to the press when Goss says that the "Intelligence Community Whistleblower Protection Act [ensures] that current or former employees could petition Congress, after raising concerns within their respective agency, consistent with the need to protect classified information"?  The answer is quite simple: the Intelligence Community Whistleblower Protection Act is more like an Intelligence Community Whistleblower Control Act, especially when it comes to the CIA.

As we've stated before, the Act says that CIA whistleblowers cannot go to congressional intelligence committees without the CIA director giving him or her "direction on how to contact the intelligence committees in accordance with appropriate security practices."  Problem with this is that the CIA director might not want Congress to look into the allegations of wrongdoing by the CIA whistleblower. 

What about the Inspector General (IG)?  Well, they don't provide an independent shelter for whistleblowers either.  The POGO-Government Accountability Project-Public Employee for Environmental Responsibility book, The Art of Anonymous Activism, states:

While the IG touts itself as independent, that is not really the case. At small agencies, the agency head appoints the IG. For larger agencies, the IG is nominated by the President and confirmed by the Senate. The IG reports to the head of the agency and serves at the pleasure of the President. In other words, if an IG is upsetting the Administration’s apple cart, he or she can be instantly removed.

The IG’s performance appraisal comes from the agency head, who also controls issuance of awards and financial bonuses to the IG. As a consequence, many IG offices are quite political in the selection of cases for investigation and the manner in which its findings are cast.

So if an investigation by the CIA Inspector General is shut down or ineffective and the CIA director doesn't want the whistleblower to go to Congress, then there is no other choice but to go to the media.  If concerned CIA employees know this, the only way for them to air their concerns, without signaling to the CIA director who to retaliate against, is to skip the CIA IG, skip going to Congress and go straight to the press. 

These are just some of the specific problems CIA whistleblowers face.  Government employees across the government, including the CIA, face incredible legal odds.  Both the Intelligence Community Whistleblower Protection Act and the Whistleblower Protection Act are highly flawed.  For example, a whistleblower is not legally protected if they first report wrongdoing in the chain of command in their agency.  But wouldn't telling your boss be the first thing an employee who notices something wrong would do? 

The only example where Goss asserts that information in the press hurt intelligence efforts was the urban myth that Osama bin Laden abandoned use of his satellite phone, which the US has eavesdropped upon, because the press reported that he used one.  But an article by the Washington Post shows how hollow Goss' assertion really is.  It was bin Laden's ally the Taliban who revealed this fact--not a leak from the CIA or another intelligence agency--to Time in 1996 that bin Laden used a satellite phone.  It is even possible that the CIA began eavesdropping on bin Laden's phone because of this information gleaned from Time.  And when bin Laden stopped using his phone, it's more likely because the US had launched cruise missiles at his camp the day before.  The second time bin Laden's satellite phone was mentioned in the press, the source was bin Laden himself.  Again, this does not qualify as a leak from the CIA, or as a leak at all.

Also a revelation, first reported by National Journal, might give Goss a pause since it implicates Vice President Dick Cheney as authorizing leaks of classified information to the press for political purposes:

Beyond what was stated in the court paper, say people with firsthand knowledge of the matter, Libby also indicated what he will offer as a broad defense during his upcoming criminal trial: that Vice President Cheney and other senior Bush administration officials had earlier encouraged and authorized him to share classified information with journalists to build public support for going to war. Later, after the war began in 2003, Cheney authorized Libby to release additional classified information, including details of the NIE, to defend the administration's use of prewar intelligence in making the case for war.

Goss only points the finger at whistleblowers who are trying to inform the public of government malfeasance, but not at the politicized leaking of intelligence authorized at the highest levels.  There's a world of difference, and it is loose lips of this Administration that Goss should be truly concerned about.

Comments

[Todd Schoenrogge]

As a party in Schoenrogge v Justice (fedcir 05-3135) pending petition before the Supreme Court (Sup.Ct. 05-8582) I have personal experience that the Court of Appeals for the Federal Circuit is a rubber stamp for the MSPB and not interested in fair review.

My case has been reported on Fedsmith and in the Sept. 26, 2005 issue of Federal Employees News Digest.

What all the reports fail to mention is that both the MSPB and Federal Circuit held that I did not have a reasonable belief that Judges bringing booze into a federal prison in violation of 28 CFR 511.11(c) and 28 CFR 511.12(a) was a crime. Both those bodies also ignored that possession of intoxicants is listed as an offense at item 20 of the US Dept. of Justice Schedule of offenses.

The court of appeals and MSPB also found that even though 56 FLRA No. 97 (Sept. 1, 2000) held that Immigration Judges are not in the chain of command for legal assistants, that my refusal to falisify computer entries at the request of an immigration judge was disrespectful. Both those bodies ignored that falisification of official records is a violation of federal law 18 USC 2071(b) and is listed at item 22 of the Dept. of Justice Schedule of offenses.

The MSPB and court of appeals also ignored the fact that I never alleged reprisal for filing discrimination complaints.

Even though the record before the MSPB contains 18 references to my allegations of reprisal for testifying against the proposing and deciding officials on behalf of a co-working in the discrimination matter she filed (Dept. of Justice docket no. B-00-2377) both the MSPB and court of appeals held that I alleged reprisal for filing discrimination complaints.

The Court of appeals did not even review the record.

Concerning the allegation that I entered a plea of guilty to disorderly conduct. There was never a charge of disorderly conduct. Therefore there was never a plea to or a finding of guilty of disorderly conduct, or attempting to provoke a physical altercation.

Regarding the phone calls that the agency stated were made for the purpose of harassment. I was denied as witnesses the recipients of those calls. I could not ask those persons if my phone calls were made to harass or if my phone calls were made for the purpose of disclosing violations of federal laws.

The recipients of those calls had a legal obligation under 28 USC 535(b) to investigate those disclosures of criminal activity. Instead, it was alleged that I made those calls to harass.

Nothing like having whistleblower disclosures termed as harassment.

Perhaps instead of trumping up charges against a whistleblower the agency should have removed immigration judges for bringing booze into a prison and ordering staff to falsify computer records.

Perhaps the agency should have also prosecuted those management personnel that attempted to influence my testimony against the proposing and deciding offiicials in the above referenced DoJ docket number.

Thank you for the time you have devoted to reading this.

[Chipotle]

I hope Mr. Goss demands more logical rigor from his intelligence analysts than he used in his op-ed piece.

"Ultimately, the bin Laden phone went silent."

http://en.wikipedia.org/wiki/Post_hoc_ergo_propter_hoc

[Debra]

Wow! What a great post! Well put, hopefully other people will be able to make their through the maze of lies, misdirection and misconception to realize that they are being hoodwinked and demand that the situation be changed. Other countries have protests and work slow downs, they express the displeasure they feel with their government. Even in totalitarian countries.

Here, we punish those who try to show the way.