House Hearing on National Security Whistleblowers
Sat Feb 18, 2006 15:35

House Hearing on National Security Whistleblowers
House Subcmte. hearing on "National Security Whistleblowers in the post-9/11 Era: Lost in a Labyrinth and Facing Retaliation by Security Clearance Revocation"
2/14/2006: WASHINGTON, DC: 4 hr. 51 min.


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2/14/2006 GAP Testifies on National Security Whistleblower Protection

GAP Testifies on National Security Whistleblower Protection
February 14, 2006


Contact: Tom Devine, Legal Director
Phone: 202.408.0034 ext. 124

Contact: Adam Miles, Advocacy Associate
Phone: 202.408.0034 ext. 132

Contact: Dylan Blaylock, Communications Director
Phone: 202.408.0034 ext. 137, cell 202.236.3733

Gap Testifies On National Security Whistleblower Protection
Praises House Hearings as Last Step for Congressional Consensus to Close Security Clearance Loophole in Whistleblower Rights

The Government Accountability Project (GAP) today testified on the lack of enforceable rights for national security whistleblowers at hearings of the House Government Reform Subcommittee on National Security, chaired by Rep. Christopher Shays (R.-Conn).

GAP legal director Tom Devine praised the forum as the last step necessary for a congressional consensus on closing the security clearance loophole in the Whistleblower Protection Act. He characterized the reform as “essential for America’s national security,” by giving whistleblowers genuine legal rights against “the most common harassment technique against those who challenge security breaches – yank the whistleblower’s security clearance or otherwise block access to classified information necessary to perform the employee’s job duties.”

Devine's full testimony is available by clicking here.

Based on experience representing over 100 national security whistleblowers, GAP’s testimony summarized the primary lesson learned, “Abuses of secrecy enforced by repression are a severe threat to national security, because they cover up bureaucratic negligence that sustains unnecessary vulnerability to terrorism.” Devine surveyed why national security whistleblowers are America’s modern day Paul Reveres exercising the freedom to warn. The testimony illustrated why the nation is less safe from silencing the warnings of front line professionals before and since 9/11 about not being prepared for terrorist and natural disasters at our airports, nuclear facilities, ports, coasts and borders.

GAP also surveyed the obstacles national security whistleblowers face while attempting to survive professionally and make a difference. Devine provided the bottom line for employees trying to exercise their rights against security clearance retaliation: “Kafka’s The Trial isn’t just a 20th Century novel. It is 21st Century reality for national security whistleblowers seeking justice.” The testimony supported that conclusion with case studies illustrating the following barriers --

* contempt for anti-secrecy laws. Agencies openly discipline and yank the security clearances of whistleblowers for unclassified disclosures, which are shielded on paper under the Whistleblower Protection Act (WPA).

* noncompliance with the anti-gag statute. As a rule, agencies disregard the law passed unanimously by Congress for the last 17 years that bans spending on agency gag orders that attempt to cancel the WPA and other good government laws. This abuse has even spread to Congressional Research Staff evaluating the effectiveness of national security whistleblower laws, as well as to climate change scientists trying to prevent national security threats from natural disasters.

* systematic conflicts of interest in enforcement of paper rights. Agency officials abuse unchecked authority to yank the clearances of those who blow the whistle against them, as occurred when whistleblowers challenged nuclear weapons security breakdowns and lax monitoring of leaks from 500 tons of chemical agents. Internal review boards to police anti-retaliation paper “rights” are honor systems: The agency that normally would be the institutional defendant for a fair day in court, instead is the judge and jury of its own alleged retaliation. In reality, whistleblowers’ only have the legal right to ask an institution engaging in harassment to change its mind.

* twisting in the wind syndrome: Agencies have and abuse unrestrained power
to suspend clearances for periods ranging months to years, without telling employees the charges that leave them officially untrustworthy until proven otherwise.

* internal review boards that make a caricature of due process. To illustrate in one case, after waiting three and a half years for a hearing that went 90 minutes and not a second longer, a pre-Katrina emergency planning whistleblower was not informed of her alleged specific misconduct; allowed to know who made the charges against her, let alone confront her accusers; present witnesses or the lion’s share of evidence in her defense; only allowed to present her defense to a bureaucrat who was little more than a delivery boy forwarding the transcript; and a decision by an anonymous three person panel that upheld her clearance revocation without explanation.

* the Twilight Zone. Agencies can deny reality at will, as occurred after a Department of Justice whistleblower successfully exposed leaks of classified information. He was informed he never had a clearance, despite having contrary documentation and a record of handling Top Secret data for 18 months. There wasn’t anything he could do.

* inconsistent rules for disclosures and protection: National security whistleblowers at the FBI and intelligence agencies have the right to make classified disclosures to Congress under controlled circumstances, but those at civil service agencies like DOE, the department of Defense or the Department of Homeland Security do not. More fundamentally, all rights at the FBI and intelligence agencies are honor systems, compared to third party enforcement of anti-reprisal rights covering all but security clearance harassment for other national security whistleblowers.

* toothless channels to work within the system. The Whistleblower Protection Act disclosure channels for employees to work within the system are broken, as evidenced by the Office of Special Counsel’s (OSC) recent resolution of a whistleblowing disclosure of a systematic security breakdown against terrorist threats to Department of Energy (DOE) nuclear weapons operations. The OSC took over two and a half years to evaluate a report that took DOE less than six months to investigate and write. After conceding the whistleblower’s evidence that DOE’s official, public denial of any ongoing problems was contradicted by a dozen internal agency reports, the Special Counsel then concluded that he could not determine whether DOE’s conclusions reviewed all relevant evidence and were a reasonable resolution of the whistleblower’s concerns. The WPA requires the Special Counsel to make those determinations. Devine concluded, “The Special Counsel does not have the legal option to duck a judgment call whether DOE responsibly addressed this homeland security threat. National security professionals are more likely to work within the system if it is worthy of respect.”

GAP made the following recommendations to remove these obstacles:

* press for a floor vote on Whistleblower Protection Act amendments in H.R. 1317, and support ultimate adoption of the Senate Government Affairs Committee’s provisions in S. 494 to close the security clearance loophole, define channels for responsible classified disclosures to Congress, and confirm Whistleblower Protection Act supremacy over new hybrid secrecy categories such as Critical Infrastructure Information. (CII)

* introduce legislation to close WPA coverage for national security whistleblowers at the FBI, intelligence agencies, and the Congressional Research Service.
Conduct analogous hearings on that issue consistent with this forum on security clearances, and support corresponding floor amendments to H.R. 1317 if the record is complete.

* initiate an oversight initiative to request a General Accountability Office (GAO)
investigation whenever the Office of Special Counsel orders an agency investigation into whistleblowing disclosures of national security breakdowns, so there were will be some healthy competition to keep agencies honest in responding.

* hold hearings on creative models for national security whistleblowers to work within the system, such as Alternative Dispute Resolution (ADR) third party policy hearings to develop a record of the whistleblower’s concerns, instead of agency self-investigations.

Government Accountability Project •
National Office
1612 K Street, NW Suite #1100
Washington, D.C. 20006
202.408.0034 West Coast Office
1511 Third Ave. Suite 321
Seattle, Washington 98101

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