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Preventing Future Snowdens
Should Congress provide safe harbor to intelligence whistleblowers?


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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.

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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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