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.