The following op-ed was written by GAP Legal Director Tom Devine, and published on July 2, 2010.
Civil libertarians have denounced the April indictment of senior National Security Agency official Thomas Drake for blowing the whistle on NSA mismanagement and its disregard for citizens' privacy rights. Drake has been charged with misuse of classified documents that were leaked to the media. While the facts in Drake's case are not in, some things are clear: Whistleblowers have no other viable option in the current system. The lack of internal accountability makes leaks inevitable.
At a 2006 hearing of the House intelligence committee, then-Chairman Peter Hoekstra (R-Mich.) articulated the best kind of anti-leak policy: We "need to make sure the whistleblower process is an open door, so that these folks are not faced with . . . an environment where they don't have a choice, that they see something they don't like, that they just go, 'Well, I'll just go to the press.' "
Now, however, the door is closed. The still-unresolved ordeal of Marine Corps whistleblower Franz Gayl illustrates the reality faced by many who blow the whistle on national security issues. Gayl's disclosures led to the belated delivery to Iraq of Mine-Resistant Ambush-Protected vehicles. The MRAP shipment had been held up by mismanagement and other issues for 18 months -- a delay that has been linked to the deaths of more than 700 troops. Instead of offering thanks for saving lives, the Marine Corps launched a criminal investigation of Gayl for allegedly citing a classified document improperly in an internal report.
Making waves within a security agency too often results in a criminal investigation such as the one Gayl experienced, a threatened loss of security clearance, or both. And anti-retaliation "protections" are riddled with loopholes. Since 1978, only one person at the FBI and one intelligence worker have won lawsuits for whistleblower retaliation -- little surprise given how the law makes a sham of due process. The agencies serve as judge and jury of their conduct, with no independent review. No wonder it can seem less risky to employees to leak anonymously to the media than to tell what they know to the agency officials who need the information.
Worse, shooting the messenger undermines our nation in the fight against terrorism. The Sept. 11 commission report showed that information bottlenecks within government were a major contributor to America's vulnerability. Examples are not hard to find: Flags raised about the men who carried out the attacks of Sept. 11, 2001. A 90 percent failure rate in airport screening security in the 1990s. Mismanagement that turned federal air marshals into open targets in flight in 2003 and 2004. The vulnerability of nuclear weapons plants and research facilities in 1997. Customs and border breakdowns in the mid-2000s.
Apart from strengthening bureaucratic weak links in the war against terrorism, whistleblowers have been valuable in exposing governmental abuses, regardless of party or ideology. National security employees and contractors were critical to making the public aware of indiscriminate, warrantless surveillance begun in the aftermath of Sept. 11. While such disclosures enraged the NSA, they have been America's best line of defense against threats to freedom from our own government.
The good news in all this is that we are close to a breakthrough. After 10 years, Congress is on the verge of repairing the dysfunctional Whistleblower Protection Act for government employees, and the restored act would for the first time cover FBI and intelligence employees. The House bill would allow whistleblowers to challenge retaliatory investigations before they become indictments. The House and Senate bills would allow national security workers to safely disclose what they "reasonably believe evidences" mismanagement, violations of law, waste and abuse, including as part of their job duties.
Procedural tactics have prevented a Senate vote since December, despite support from Senate leadership. The House has passed its bill twice, in 2007 and 2009. For the first time since 1978, the Justice Department has not testified against a stronger whistleblower law, and the Senate homeland security committee has unanimously approved the whistleblower act four times since 2004. But lawmakers have not overcome repeated secret holds by opponents.
National security whistleblowers face a Catch-22. They can engage in professional suicide by operating within the system or risk criminal prosecution by leaking to the media. No wonder so many remain silent. And in the end, the public loses.
The writer is legal director of the Government Accountability Project and has worked on more than 5,000 whistleblower cases, including that of Franz Gayl.