Preventing Future Snowdens

by Fred Fleitz
Should Congress provide safe harbor to intelligence whistleblowers?

As reprehensible as the leaks of NSA surveillance programs by former intelligence contractor Edward Snowden are, his actions raise questions about whether more could be done to encourage would-be intelligence whistleblowers to raise their concerns through legal channels and thus protect U.S. national security.

Snowden is a traitor, not a legitimate whistleblower. There is no evidence that he made any attempt to use legal channels before he decided to violate his oath to protect U.S. national-security information by leaking classified information to the news media. I also believe the fact that he sought refuge in Hong Kong strongly suggests that he was working with Chinese intelligence.

It was Representative Justin Amash (R., Mich.) who muddied the waters in this matter by irresponsibly calling Snowden a whistleblower on a Sunday-morning talk show last weekend. By saying this, Amash justified Snowden’s traitorous behavior and may have inadvertently encouraged other intelligence officers to bring complaints about classified matters to the news media instead of to their inspectors general or the congressional intelligence-oversight committees.

Whatever their motivation, people like Snowden are a serious problem for the United States. In the 2000s, there was a flood of politically motivated leaks of classified information intended to hurt the Bush administration, many by the CIA. This included a member of the CIA inspector general’s staff who was fired in 2006 reportedly for leaking to the Washington Post. There have been numerous leaks to the press of intelligence programs and operations during the Obama administration that have hurt U.S. counterterrorism and counterproliferation efforts.

Good intelligence often takes years and great sums of money to acquire. Once compromised, many intelligence sources and methods can never be replaced. Disclosures of intelligence can also lead to loss of life, as happened when Richard Welch, the CIA station chief in Athens, was assassinated in 1975 after his Agency employment was revealed by former CIA officer Philip Agee in his book Inside the Company. For these reasons, U.S. government employees holding security clearances serve in positions of great trust and sign oaths in which they promise to protect classified information.

There are legitimate avenues that intelligence personnel and other government employees with security clearances can use to raise classified whistleblowing concerns without damaging U.S. national security. Giving sensitive national-security information to the news media is not one of them. All U.S. government agencies have inspectors general and ombudsmen to whom employees can bring their concerns. The Intelligence Community Whistleblower Protection Act of 1998 established the current procedures under which intelligence whistleblowers can communicate with Congress through their IGs, and they are authorized to go directly to Congress in limited circumstances.

Steps need to be taken to strengthen and publicize these avenues. This should include making the congressional intelligence-oversight committees safe harbors for intelligence whistleblowers so they can serve as a last resort where intelligence officers can lodge classified concerns about waste, fraud, abuse, civil-liberties violations, and other matters without fear of retaliation, instead of leaking classified information to the press.

Snowden has given no indication that he attempted to use legitimate channels to raise his supposed concerns before he violated his security oath by compromising sensitive NSA collection programs that were used to stop terrorist attacks against the United States. The same goes for Army private Bradley Manning, who apparently made no effort to lodge whatever complaints he had about U.S. foreign policy through Pentagon channels or with Congress before he leaked hundreds of thousands of classified documents to WikiLeaks.

The desire to feel important, to bathe the ego, is an all-too-frequent motivation for intelligence leakers. This was clearly one of the key motivations behind the leaks by Snowden and Manning. They are nobodies who wanted to be famous. While I believe they did not fully understand the implications of the intelligence they compromised, they knew this information would be useful to America’s enemies.

One challenge in protecting intelligence whistleblowers is that because of the importance of safeguarding national-security information from disclosure to America’s adversaries, it is not possible to give them the same rights and protections as other whistleblowers inside and outside of the federal government. This led to a multi-year delay in updating the Federal Whistleblower Protection Act, which ultimately became law in late 2012 after Congress acceded to demands by U.S. intelligence officials that it drop language providing enhanced protections to intelligence whistleblowers.

Another challenge concerns the executive branch’s longtime refusal to give Congress unfettered access to U.S. intelligence. This is not just to protect sensitive national-security information, but also because the executive branch believes allowing intelligence officers to provide intelligence to Congress without permission would usurp the president’s exclusive authority to decide what intelligence will be shared with the legislative branch. In the view of White House and intelligence-agency officials, Congress is entitled only to the intelligence that the president decides to provide.

Congress has consistently rejected this position, arguing that since it is a co-equal branch of government, the president cannot interfere with its access to information from government employees. Congress made this clear when it added the following language at the beginning of the Intelligence Community Whistleblower Protection Act of 1998:

Congress, as a co-equal Branch of Government, is empowered by the Constitution to serve as a check on the Executive Branch; in that capacity, it has a “need to know” of allegations of wrongdoing within the Executive Branch, including allegations of wrongdoing in the Intelligence Community.

No basis in law exists for requiring prior authorization of disclosures to the intelligence committees of Congress by employees of the Executive Branch of classified information about wrongdoing within the Intelligence Community.

I know from my time at the CIA and on the House Intelligence Committee staff that some intelligence officers ignore their agency’s rules on communications with Congress and provide classified information under the table to the congressional oversight committees in a whistleblowing capacity. Snowden is smart enough that, if he had been a legitimate whistleblower, he could have scheduled a one-on-one meeting in a secure congressional meeting room with an intelligence-committee member such as Senator Ron Wyden, a critic of the NSA programs that Snowden compromised. I believe Wyden would have listened to Snowden’s concerns and acted on them if he thought they were valid.

It is unclear whether recent reports are true that the CIA is cracking down on Agency officers who were in Benghazi during the September 11, 2012, attacks on the U.S. facilities there to prevent them from talking to the press and to Congress. In late July, there were press reports that the CIA forced operations officers who were in Benghazi during the attacks to sign new non-disclosure agreements, subjected them to almost monthly polygraphs, and moved them out of the Washington, D.C., area.

The CIA claims it has not done this. The Weekly Standard published a May 30, 2013, letter from Director John Brennan that encouraged CIA employees to go through official channels if they wanted to meet with Congress about the Benghazi attacks. Brennan also wrote that CIA employees are free to meet with Congress on their own as long as they follow Agency regulations on protecting classified information.

I applaud the CIA for taking aggressive action to stop leaks of intelligence to the news media. However, pressuring Agency employees not to talk to the intelligence committees — especially on a matter they are already investigating — would be a serious affront to congressional oversight. I am skeptical about whether Agency officials actually did this concerning Benghazi. However, it is important that the congressional oversight committees look into this matter and ensure that appropriate protections are put in place for any CIA or other government employee who wants to meet with them to discuss the Benghazi tragedy.

Three former NSA employees, including Thomas Drake, have claimed they tried to use various legal avenues — including speaking with the congressional intelligence committees — to raise their concerns about NSA programs that they believe broke the law. They claim that when they didn’t get anywhere with the intelligence committees, they decided to leak to the news media. From my work on the House Intelligence Committee staff, I find this hard to believe. Moreover, an important issue here is that these so-called whistleblowers ignored the possibility that they might have been wrong about the NSA programs to which they were objecting. (A former senior intelligence official told me he believes Drake did not fully understand the NSA programs he objected to.)

Drake was indicted for lying and obstruction of justice in an investigation of leaks of classified information to a reporter. These charges could have sent Drake to prison for the rest of his life, but the government’s case against him fell apart, and he pleaded guilty to a minor charge in a plea deal. He now works for an Apple store. It is unfortunate that the news media has lionized Drake as a hero. I believe he should be in prison.

When I was on the House Intelligence Committees staff, I advocated that the committee explore whether it could make itself a safe harbor for intelligence whistleblowers. I did this for two reasons.

First, to provide anyone in the intelligence community — whether they are poseurs like Snowden, politically motivated intelligence leakers, or legitimate whistleblowers — a classified and protected venue to raise their concerns without damaging U.S. national security. I don’t want to excuse the behavior of Snowden and other intelligence officers who broke the law by leaking to the press. However, I do believe it is necessary to create a safety valve for disgruntled and politically motivated individuals to air their concerns — and it is certainly necessary to give legitimate whistleblowers a safe venue.  

Second, and just as important, is my belief that direct access to intelligence whistleblowers is crucial for bona fide and robust congressional oversight of our intelligence operations. It is incomprehensible that Congress has set up intelligence-oversight committees but at the same time intelligence officers can be fired or have their clearances revoked if they talk to these committees without permission.

The idea of making the intelligence oversight committees safe harbors is not new. The most serious effort to do this that I am aware of occurred in early 1998, when the Senate Intelligence Committee proposed to add language to the 1999 intelligence authorization bill, the purpose of which was to

ensure that employees within the Intelligence Community are made aware that they may, without prior authorization, disclose certain information to Congress, including classified information, that they reasonably believe is specific and direct evidence of: a violation of law, rule or regulation; a false statement to Congress on an issue of material fact; or gross mismanagement, a gross waste of funds, a flagrant abuse of authority, or a substantial and specific danger to public health or safety. The Committee is hopeful that the legislation will encourage employees within the Intelligence Community to bring such information to an appropriate committee of Congress rather than unlawfully disclosing such information to the media. It is imperative that individuals with sensitive or classified information about misconduct within the Executive Branch have a “safe harbor” for disclosure where they know the information will be properly safeguarded and thoroughly investigated.

This language sharply divided Congress, and was removed from the bill when went it to a House/Senate conference committee because of a veto threat from the Clinton White House.

Among other reasons, the White House and intelligence officials are certain to continue to oppose the idea of Congress providing safe harbor for intelligence whistleblowers on the grounds that existing congressional oversight of intelligence already intrudes too much on the president’s authority under Article II of the U.S. Constitution to oversee U.S. national security. They also will argue that too many leaks of classified material come from the Hill.

I’m sympathetic to these arguments, although I think it’s clear that the vast majority of leaks of classified material to the press come from senior administration officials. Many recent intelligence leaks appear to have originated in the White House. On balance I believe congressional intelligence oversight has done a good job in keeping U.S. intelligence agencies honest and avoiding repeats of the intelligence abuses uncovered by the Church and Pike Committees in the mid 1970s. I believe giving these committees better access to intelligence whistleblowers would enhance congressional oversight and help make intelligence agencies more accountable.

So how would Congress provide safe harbor to intelligence whistleblowers? The president is certain to veto any legislation allowing an intelligence whistleblower to go to Congress without getting permission from his management or inspector general. The Senate could possibly force the White House to agree to such legislation by putting holds on key nominations.

Meanwhile, Congress could set up safe-harbor arrangements in the absence of such legislation by simply announcing that intelligence whistleblowers will be given safe harbor and that their identities will be protected.

Another alternative would be for the oversight committees to set up a classified hotline for whistleblowers to call from their agencies.

I believe a variety of other steps need to be taken before Congress attempts to provide safe harbor for intelligence whistleblowers. The Snowden case suggests that more should be done to screen government employees who hold security clearances, especially those with wide access, such as computer-systems technicians. A related problem is that too many people in government have high-level clearances, and too many of them are contractors.

A government-wide education and counseling program should be initiated to emphasize the seriousness of the Snowden case and to explain the avenues that would-be intelligence whistleblowers can use to legally raise their concerns without harming U.S. national security. Ombudsmen and inspector generals in intelligence agencies need to be beefed up, made more independent, and encouraged to do more to reach out to employees.

Unfortunately, there will be other U.S.-government employees with high-level security clearances like Snowden who for political reasons or to simply get attention for themselves refuse to go through the chain of command and instead break the law by leaking to the news media. There also will be legitimate whistleblowers afraid to follow the current rules. Legitimizing direct appeals to the congressional oversight committees could stop some of these people from going to the press by enabling them to lodge confidential complaints requesting independent investigations by the committees and shielding them from retaliation. This would satisfy legitimate whistleblowers that their complaints were being taken seriously and would be investigated. They would then have no legitimate reason to go to the press.

I believe designating the congressional intelligence committees as safe harbors for whistleblowers is long overdue and will make our nation safer by helping prevent major compromises of national-security information and by increasing the effectiveness of congressional oversight of intelligence.

— Fred Fleitz is chief analyst with LIGNET.com, a global intelligence and forecasting service.  

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