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Protecting Whistleblowers since 1977

The Government’s Criminalization of “A Good American”

Shanna Devine, April 25, 2016

Friedrich Mosers’ new documentary, A Good American, details the courage and struggle of National Security Agency (NSA) whistleblower Bill Binney and his partners in committing the truth. Before there was Edward Snowden, there existed a team of senior NSA employees who devised a surveillance program called ThinThread that effectively identified terrorist threats and protected the privacy rights of innocent individuals. When it was replaced by a costly, ineffective and unconstitutional mass surveillance program, they resigned and blew the whistle through designated channels. As the film reveals, however, they were ultimately treated as if they committed a crime for reporting a crime.

A recent letter by prominent good government groups calls on the Obama Administration to put an end to that practice by “prohibiting managers from pursuing or threatening prosecution of whistleblowers who use protected channels.”

Over the course of several decades, Binney partnered with NSA colleagues Edward Loomis, Kirk Wiebe, and later Tom Drake and Diane Roark (former senior staffer for the House Intelligence Committee) to advocate for ThinThread’s use and to warn of its competition. Despite the agency and Congress’ initial praise for and efficacy of the program, NSA senior management intervened. Within weeks of the September 11th attacks, it shelved ThinThread for a costly replacement.

In 2002, the NSA contracted the Science Applications International Corporation (SAIC) to create Trailblazer – a multibillion dollar program that indiscriminately collected personal communications and violated privacy rights, without effectively sorting through the data to identify national security threats, which was its alleged purpose.

The film carries the viewer through Binney’s loyal career, first with the Army Security Agency in the 60’s, then as a top NSA analyst and Technical Director for three decades, until his resignation in 2001 following the September 11th attacks and the NSAs decision to replace ThinThread with Trailblazer. It climaxes in 2007, when Binney and his family were terrorized by an FBI raid based on fabricated evidence that he had improperly disclosed government secrets.  

Wiebe, Loomis, Roark and Drake were subjected to the same raids, and Drake went on to face a botched prosecution under the Espionage Act threatening 35 years in prison. His crime? He engaged in protected whistleblowing activity and provided an unclassified briefing to The Baltimore Sun on NSA surveillance.

Binney and his colleagues’ actions personify those of A Good American. They blew the whistle on NSA’s gross waste, fraud, abuse and corruption to the Department of Defense Inspector General (DoD IG). Rather than examine the wrongdoing, the government made them the targets of a criminal investigation. After a two-year taxpayer-funded investigation, the final DoD IG report remains heavily redacted to this day.

The retaliation did not end with the investigation. The NSA followed Binney, Wiebe and Loomis into the private sector and ran interference with nearly every contract they obtained. They were the brightest in their field, but the government branded them as traitors and they had no viable legal avenues for redress.

Remarkably, little has changed in the last decade. Under Presidential Policy Directive 19, Intelligence Community (IC) employees who blow the whistle internally are able to obtain an IG investigation and can appeal before a board of IC IGs. Those rights were codified through Title VI of the Intelligence Authorization Act FY2014. They do not provide due process outside of the IC, however, and they are silent on the most severe form of retaliation – the years of relentless criminal harassment experienced by Binney and his team.

Snowden witnessed what happened and chose a different course of action, as documented by a 2015 Congressional Research Service report, “When NSA contractor Edward Snowden was asked why he did not go to the government first, he cited the severe retaliation that previous IC whistleblowers experienced when they worked through institutional channels without specific rights.” Legislation introduced by Senator Claire McCaskill (S. 794) would establish credible whistleblower rights for Intelligence Community contractors.

In March leading groups within the good government community called on President Obama to, among a number of legacy items, “better protect future whistleblowers”:

Whistleblowers sound the alarms that let the policymakers and the public know when our government has gone dangerously off course. They alert us to waste, fraud, abuse, and wrongdoing. Despite the passage of the Whistleblower Protection Enhancement Act, all too often the messengers are criminally investigated and prosecuted for the bad news they bring forward. We urge you to issue a presidential memorandum prohibiting managers from pursuing or threatening prosecution of whistleblowers who use protected channels. This presidential memorandum should:

  • In the national security context, eschew criminal prosecution, including for disclosures to the media, where the person making the disclosure has a reasonable belief that the information reflects government fraud, waste, or abuse; and
  • Extend this presidential memorandum to government contractors, including those within the Intelligence Community

The full letter can be viewed here

Additional information on The Good American, including screenings, can be viewed here