McClatchy reports that the Central Intelligence Agency may be “intercepting the communications of officials who handle whistleblower cases.” The Senate Intelligence Committee’s classified 6,000-page report into the CIA’s post-9/11 interrogation programme is still yet to be published and the Committee has already accused the agency of illegally spying on that probe.
Now it has emerged that the CIA retaliated against an official who cooperated with the Senate investigation, and Senate members emailed one another to accuse the agency’s inspector general of failing to investigate that retaliation – and the CIA has obtained at least one of those emails.
As McClatchy writes, “The email controversy points to holes in the intelligence community’s whistleblower protection systems and raises fresh questions about the extent to which intelligence agencies can elude congressional oversight.” If the Senate cannot investigate the CIA independently and free of retaliation fears, who can? How can intelligence agencies be held accountable if they even intercept communications into their own operations?
From internal channels to insider threats
It is already difficult enough for government employees in the US to come forward with their concerns. If intelligence community officials fear reprisal, they have even less incentive to expose wrongdoing through internal channels. US Senators Chuck Grassley and Ron Wyden have publicly warned that if public employees are committed to blowing the whistle and internal channels are compromised, it is to be expected that some will anonymously seek other ways to voice their misgivings.
Truly meaningful whistleblower protections need to include the option of a legitimate channel for confidential disclosures… However, if potential whistleblowers believe that disclosing waste, fraud or abuse means putting a target on their backs for retaliation, they will be intimidated into silence. The failure to provide such protected alternatives could result in whistleblowers choosing to make unprotected disclosures in public forums, with potential negative consequences for national security.
The CIA’s illegal monitoring of whistleblower communications has been seen as part of the Obama Administration’s Insider Threat programme, which categorically treats leaks of classified information about wrongdoing as aiding America’s enemies. Introduced in an October 2011 executive order as a direct response to US Army whistleblower Chelsea Manning’s disclosures, the programme covers “virtually every federal department and agency”, including those who are not concerned with national security matters.
A series of reports by McClatchy over the past year describe a range of measures designed to encourage public officials to report on colleagues who they perceive to be exhibiting unusual behaviour. The programme has taken profiling to extreme lengths: late last year it was revealed that the personal details of 5,000 US citizens who had purchased a book on defeating polygraph tests had been retained on the off-chance that they might apply for a job in a federal agency at some point in the future.
This new controversy about the Insider Threat programme exacerbates an already deeply problematic situation for potential whistleblowers within the US intelligence community. Recent public statements by officials responsible for whistleblower protection within the NSA display a reluctance to take complaints seriously, suggesting that within that agency at least, officials see their role as containing rather than engaging with the concerns of employees.
“Don’t bother me with this”
In a recent interview for PBS, the NSA’s former General Counsel Vito Potenza admitted that he would have dismissed Thomas Drake’s criticisms of US warrantless wiretapping:
If he came to me, someone who was not read into “The Program,” right, and not a part of what we were doing and told me that we were running amok essentially and violating the Constitution and it was in that timeframe when there was an awful lot going on and we were all worried about the next [terrorist] attack, there’s no doubt in my mind I would have told him, you know, go talk to your management. Don’t bother me with this. I mean, you know, the minute he said, if he did say you’re using this to violate the Constitution, I mean, I probably would have stopped the conversation at that point quite frankly. So, I mean, if that’s what he said he said, then anything after that I probably wasn’t listening to anyway.
Drake subsequently blew the whistle to the media, and before the government’s case collapsed just days ahead of trial, he was facing an Espionage Act charge that could have imprisoned him for decades.
Similarly, Edward Snowden made enquiries within the NSA about the legality and morality of that agency’s mass, unchecked surveillance. He spoke up at least ten separate times — the Office of the Director of National Intelligence has in fact released one of Snowden’s emails. When he was ignored, Snowden was compelled to give documents detailing the NSA’s spying programs to investigative journalists.
In February this year, NSA Inspector General George Ellard, the official responsible for dealing with whistleblower communications, outlined his likely response to a complaint about the collection of US call data:
Ellard was asked what he would have done if Snowden had come to him with complaints. Had this happened, Ellard says would have said something like, “Hey, listen, fifteen federal judges have certified this program is okay.” (He was referring to the NSA phone records collection program.)
“I would also have an independent obligation to assess the constitutionality of that law,” Ellard stated. “Perhaps it’s the case that we could have shown, we could have explained to Mr. Snowden his misperceptions, his lack of understanding of what we do.”
Insufficient security or insufficient democracy?
The Insider Threat programme and the stated attitudes of the very officials responsible for facilitating internal channels draw a picture of a US administration that is deeply hostile, not only to disclosure of government information, but to internal criticism of its activities from those charged to carry them out.
Famously, President Obama has overseen the prosecution of more Espionage Act cases than all previous presidents combined. The majority of those cases concern individuals trying to blow the whistle on wrongdoing. Within their number include cases, like that of Thomas Drake, where employees have tried to make their case within the ‘official channels’ ostensibly created to facilitate internal whistleblowing.
It is ironic that the United States has responded to disclosures of illegality and abuse, not by subjecting its programmes to democratic input or ensuring that future whistleblowers have better options, but by cracking down on those who speak up and the journalism they enable. The US administration has treated whistleblowers as an issue of insufficient security rather than insufficient democracy.