Whistleblowers Are Not Protected, Mr. Goss

Dear Mr. Goss, the timing of your recent op-ed in the New York Times interestingly coincides with the upcoming congressional hearing by the House Subcommittee on National Security, Emerging Threats & International Relations on National Security Whistleblowers. Your comments are predictably consistent with the pattern of "preemptive strikes" you and the administration have been keen on maintaining. I do not blame you for your opposition to legislation to protect courageous whistleblowers, which will enable the United States Congress to reclaim some of its authority and oversight that it has given up for the past five years. No sir, you have all the right and reason to be nervous. However, I must take issue with your attempt to mislead the American public – another habit of your heart – by presenting them with false information and misleading statements.

Sir, as you must very well know after your years in Congress as a representative and as a member of the intelligence committee, there are no meaningful legal protections for whistleblowers. What is troubling is that while you are well aware of the fact that there are no meaningful or enforceable laws that provide protection to national security whistleblowers, you nevertheless state that such workers are covered by existing laws. That is simply false. You state that "the Intelligence Community Whistleblower Protection Act was enacted to ensure that current or former employees could petition Congress, after raising concerns within their respective agency, consistent with the need to protect classified information." The Intelligence Community Whistleblower Protection Act, which appears to be the legal channel provided to national security employees, turns out on closer inspection to be toothless. Please refer to the recent independent report issued by the Congressional Research Service (CRS) on National Security Whistleblowers on December 30, 2005. The report concludes that there currently are no protections for national security whistleblowers – period. Let me provide you with a recent example illustrating the fallacy of your claim:

In December 2005, Mr. Russ Tice, former National Security Agency (NSA) intelligence analyst and action officer, sent letters to the chairs of the Senate and House Intelligence Committees, and requested meetings to brief them on probable unlawful and unconstitutional acts conducted while he was an intelligence officer with the NSA and DIA. In his letter Mr. Tice, as a law abiding and responsible intelligence officer, stated "Due to the highly sensitive nature of these programs and operations, I will require assurances from your committee that the staffers and/or congressional members to participate retain the proper security clearances, and also have the appropriate SAP cleared facilities available for these discussions." On January 9, 2006, the NSA sent an official letter to Mr. Tice stating "neither the staff nor the members of the House or Senate Intelligence committees are cleared to receive the information."

Now, Mr. Goss, please explain this to the American public: What happened to your so-called appropriate congressional channels and protections available to national security whistleblowers? Mr. Goss, what "protected disclosure to congress"? According to the NSA no one in the United States Congress is "cleared enough" to hear reports from national security whistleblowers. Please name one whistleblower to date who has been protected after disclosing information to the United States Congress; can you name even a single case? Or, is that information considered classified? How do we expect the United States Congress to conduct its oversight responsibility and maintain the necessary checks on the Executive Branch, when agencies such as yours declare the members of congress "not cleared enough" to receive reports regarding conduct by these agencies? Where do you suggest employees like Mr. Tice go to report waste, fraud, abuse, and/or illegal conduct by their agencies? Based on your administration’s self-declared claim of inherent power and authority of the executive branch overriding courts and the United States Congress, what other channels are left to pursue?

Okay, now let’s move to this notion you and the administration seem to be so very keen on: Classified & Sensitive Information. Let’s start by asking how we define "classified & sensitive information," and who decides what is classified and sensitive? According to the statement by Thomas S. Benton, National Security Archive, on March 2, 2005, during the congressional hearing on "Emerging Threats: Overclassification & Pseudo-Classification," the deputy undersecretary of defense for counterintelligence and security declared that 50% of the Pentagon's information was over-classified, and the head of the Information Security Oversight Office said it was even worse, "even beyond 50%." Don’t you find the percentage of falsely classified information appalling? Well, you should; it is your responsibility, because the executive branch, under the office of the United States President, is solely responsible for classification or pseudo-classification of information. Now, based on this knowledge, what should happen when you tell the public, when you tell the United States Congress and the media "Oh, you are not allowed to have this information; this information is highly sensitive and classified"? This is what should happen: we, the people, the Congress, and the media, should first ask you for the merits of the classification; have you prove to us that the information in question should in fact be classified; and you, the executive branch, have the obligation to truthfully respond.

On the issue of classification in your op-ed you go further and cite the cost of unauthorized disclosure to the American taxpayer, "unauthorized disclosures have cost America hundreds of millions of dollars." Since you brought up the issue, let’s explore it fully and give the American people the real facts, shall we? The Office of Management and Budget report on classification costs to U.S. agencies (the CIA's are still classified; but of course!), gave us a benchmark number and some sense of comparative expense to the taxpayer – the reported dollar figure was over $6.5 billion in fiscal 2003. Now, since the percentage of falsely classified data has been determined to be in the range of 50%, the cost of our agencies’ pseudo classification to the American taxpayer amounts to over $3 billion. Mr. Goss, you do the math; do you really want to attempt to twist and misuse the cost of classification to try to strike a chord with the taxpayers? It is not going to stick; wouldn’t you agree?

Let’s try your security angle on the subject of classification, where you state "disclosure of classified intelligence inhibits our ability to carry out our mission and protect the nation." The entire 9/11 Commission report includes only one finding that the attacks might have been prevented (Page 247 & 376). They quote the interrogation of the hijackers' paymaster, Ramzi Binalshibh, who commented that if the organizers, particularly Khalid Sheikh Mohammed, had known that the so-called 20th hijacker, Zacarias Moussaoui, had been arrested at his Minnesota flight school on immigration charges, then Bin Laden and KSM would have called off the 9/11 attacks, because news of that arrest would have alerted the FBI agent in Phoenix who warned of Islamic militants in flight schools in a July 2001 memo; a memo that vanished into the FBI's vaults in Washington. The Commission's wording is important here: only "publicity" could have derailed the attacks. Classification is indeed a very important mechanism, if it is applied diligently and wisely; however, as illustrated above, in certain circumstances, even with respect to national security information, classification can run counter to our national interests.

Mr. Steven Aftergood, the Director of the Project on Government Secrecy at the Federation of American Scientists, so very eloquently stated "the information blackout may serve the short-term interests of the present administration, which is allergic to criticism or even to probing questions. But it is a disservice to the country. Worst of all, the Bush administration's information policies are conditioning Americans to lower their expectations of government accountability and to doubt their own ability to challenge their political leaders. Information is the oxygen of democracy. Day by day, the Bush administration is cutting off the supply."

Mr. Goss, since you proudly quoted from the Rob-Silberman Report released in March 2005, let me do the same and present you with another quote: "In just the past 20 years the CIA, FBI, NSA, DIA, NRO, and the Departments of Defense, State, and Energy have all been penetrated. Secrets stolen include nuclear weapons data, US cryptographic codes and procedures, identification of US intelligence sources and methods (human and technical), and war plans. Indeed, it would be difficult to exaggerate the damage that foreign intelligence penetrations have caused." It appears that the only ones not privy to our so-called sensitive government and intelligence information are the American citizens, since our enemies and allies have been successfully penetrating all our intelligence agencies (including yours sir) and nuclear labs and facilities. Sir, with all due respect, you have not even succeeded in protecting your own agencies, offices and facilities against foreign penetration; you seem to be incapable of conducting appropriate background checks on your own employees; you failed to protect us against the 9/11 attacks; and you have failed in gathering intelligence and reporting it accurately on the Weapons of Mass Destruction in Iraq. With this kind of record how can you go on lecturing the Congress and the American people on your superiority and inherent authority to do whatever you wish, however you wish, and without having to provide any report or any answer to anybody, including the United States Congress?

Last year, the CIA, your agency, classified the entire findings of the Inspector General’s investigation into the failures of CIA managers prior to 9/11. Sir, I believe you made the case for this classification based on your intention to protect the wrongdoers within the CIA bureaucracy from being "stigmatized." Is this what your op-ed intended to say? Did you mean to say that these national security whistleblowers may end up stigmatizing the wrongdoers and incompetents within the rank and file of the CIA by divulging information that you decided to classify to prevent exposure of embarrassing and criminal activity? Was that a Freudian slip, since nowadays the lines get blurry between classification for national security purposes and classification to protect the agency’s bureaucrats?

Mr. Goss, I cannot attribute this misleading op-ed to your ignorance, since you were a member of Congress until recently and are surely aware of the lack of meaningful protection for national security whistleblowers; so I won't. I will not attribute it to your stupidity, since obviously our Congress confirmed your position and I do not intend to insult their wisdom and intelligence. Thus, it must be your arrogance, nurtured and fed by your boss on your purported inherent and limitless authority and power, leading you to treat us, the American Public, as stupid.

Sincerely,

Sibel Edmonds

A Proud National Security Whistleblower

Whistleblowers Are Not Protected, Mr. Goss

by Sibel Edmonds