DISAVOWED - ACLU

DISAVOWED:

The Government’s Unchecked Retaliation AgainstNational Security Whistleblowers

WRITTEN BY MELISSA GOODMAN, CATHERINE CRUMP, AND SARA CORRIS

DISAVOWED: THE GOVERNMENT’S UNCHECKED RETALIATIONAGAINST NATIONAL SECURITY WHISTLEBLOWERS

Written by Melissa Goodman, Catherine Crump, and Sara Corris

Copyright 2007

Nadine StrossenPresident

Anthony D. RomeroExecutive Director

American Civil Liberties Union125 Broad Street, 18th Fl.New York, NY 10004

Phone: (212) 549-2600Fax: (212) 549-2652 aclu.org

EXECUTIVE SUMMARY

Imagine you work for the government.For an agency tasked with protecting thenation’s security – the CIA, the NSA, theFBI. You love your job and you love yourcountry. You have a duty to uphold the lawand the Constitution. The governmenttrusts you with secrets – you’ve signed asecrecy agreement and work with classi-fied information. And then you uncoversomething deeply troubling. Maybe you’velearned about a surveillance programthat violates the law and the Constitution.Or your agency is ignoring a serious secu-rity problem. Or you’ve watched otherstorture a detainee during interrogation. Oryou know the government is holdingsomeone in a secret prison outside of anylegal system. Do you stay silent or do youspeak up? Who do you tell? Do you haveany legal protection?

Whether a government employeedecides to speak out is intensely person-al – but almost all national securitywhistleblowers decide to disclose wrong-doing because they believe they have apatriotic duty to do so. They believe theyare acting in the best interests of nation-al security. The vast majority of whistle-blowers start by reporting wrongdoing upthe chain of command and go public (i.e.make disclosures to Congress or thepress) only as a last resort.

Many employees in national securityagencies blow the whistle at their peril.They find no protection in the vast patch-work of laws designed to protectwhistleblowers. Whistleblowers oftenfind themselves sidelined, without asecurity clearance, without a job, dis-credited, the victim of a smear cam-paign, investigated, labeled crazy, a badteam player, a liar, isolated.

There is a disturbing and systematic pat-tern of government retaliation againstemployees who uncover weaknesses orabuses in our national security apparatus.This pattern of retaliation hurts not only thewhistleblowers retaliated against, but theAmerican public. The public has a right toknow about government wrongdoing andsecurity breaches. Though limited secrecymay be necessary to protect national secu-rity, secrecy is all too often used as a shieldto hide illegal or embarrassing govern-ment conduct. Overclassification of infor-mation makes it all the more importantthat we establish clear protections thatallow national security whistleblowers tocome forward. The public needs to knowwhen our government is doing somethingwrong – and we will never know withoutwhistleblowers. Whistleblowers deserveour gratitude, not scorn and mistreatment.

It is important to keep in mind that with-out government whistleblowers wewould never have learned about theshocking abuse of prisoners at AbuGhraib or that the NSA was engaged inwarrantless surveillance of our phonecalls and emails. Only an informed publiccan make smart electoral choices andcorrect bad policy judgments. We need toknow what government officials aredoing so that we can hold them account-able when they commit illegal or uncon-stitutional acts, abuse our trust, or wasteour tax dollars.

This report aims to highlight the lack ofreal legal protection for national securitywhistleblowers. The whistleblowers pro-filed in this report serve as concrete, real-life examples of what happens whennational security whistleblowers are leftunprotected from retaliation. The follow-ing flaws in whistleblower protection laware discussed in this report:

ªMost national security whistleblowersare not protected by the Whistleblower Protection Act.

ªNational security whistleblowers whodisclose abuses related to classified matters are unprotected.

ªNational security whistleblowers can be retaliated against even for disclosing wrongdoing to Congress.

ªWhen an agency retaliates against a national security whistleblower by taking away her security clearance, there is little the whistleblower can do to save her job.

ªSecrecy can be used all too easily as a weapon to silence national security whistleblowers and prevent them from finding legal help or obtaining justice in court.

ªNational security whistleblowers often find themselves improperly the subject of retaliatory internal investigations.

ªNational security whistleblowers whoare lucky enough to be covered by the Whistleblower Protection Act are not provided any real protection.

ªNational security whistleblowers receive little protection from the First Amendment.

4 AMERICAN CIVIL LIBERTIES UNION

National Security Whistleblowers Risk Everything to Shine Light on Government Misconduct

National security and intelligence agen-cies should not be trusted to police them-selves, and should not be able to retaliateagainst whistleblowers with impunity. Forthis reason, the ACLU recommends thatCongress act immediately to:

ªProtect whistleblowers in national security agencies from retaliation:

• Make legal protection real and meaningful.

• Protect national security whistleblowersfrom retaliation for disclosing classified information to Congress and others authorized to receive classified information.

• Protect national security whistleblowersfrom security clearance-related retaliation.

• Protect whistleblowers against retaliatory investigations.

• Require the agencies to provide guidance and training about making whistleblower complaints.

• Permanently codify existing anti-gag provisions that prohibit interference with employees’ ability to speak with Congress.

ªLimit the government’s ability to use secrecy as a weapon to defeat whistleblower court cases – particularly the government’s ability to use the state secrets privilege.

ªFix the Whistleblower Protection Act:

• Restore a reasonable definition of “any disclosure” and restore normal standards of proof.

• Get rid of court-imposed hurdles to successful Whistleblower Protection Act claims.

• Impose time limits and require jury trials where government watch-dog agencies fail to act on whistleblower disclosures and complaints.

• Get rid of the Federal Circuit monopolyover whistleblower claims.

ªFix the Inspector General process and make Inspectors General more independent from the agencies they investigate.

Many of these reforms are alreadyencompassed in pending legislationbefore both Houses of Congress – legisla-tion that could be strengthened even fur-ther. Polls show the American public over-whelmingly supports congressional actionto institute stronger laws protecting gov-ernment employees who report waste orcorruption. Employees working to protectour nation deserve the best whistleblowerprotection Congress can give them.

DISAVOWED 5


Michael German

Michael German became an FBI Special Agent in 1988, immedi-ately after graduating from law school. “Joining the FBI was achildhood dream,” German recalled, “and I wanted to do it all.”

German threw himself into his work, repeatedly volunteering forsome of the most dangerous and difficult assignments the FBIhad to offer. He twice went undercover to infiltrate domestic ter-rorist groups, solving a number of bombings and preventing otherplanned acts of terror by helping to win convictions against indi-viduals who were producing illegal weapons. German was fre-quently recognized, both inside the Bureau and out, for his intelli-gent and valiant work.

“After the terrorist attacks on September 11, 2001 I expected theFBI to put my counterterrorism experience to use,” German said.He did not have to wait long. In early 2002 German was asked toassist in an FBI counterterrorism investigation that started whenthe FBI caught on tape a secret meeting between a member of adomestic terrorist organization and a supporter of an overseasIslamic terrorist organization. The purpose of the meeting was totry and develop operational ties between the two groups. “Thisattempt was a potential nightmare,” German said, “where violentextremists already in the U.S. would be doing the bidding of a for-eign terrorist group.”

Unfortunately, when German was briefed on the case he becameaware of serious problems in the way the case was being handled,problems so serious that they could have resulted in the exclusionof crucial evidence from any future prosecution. When Germanreported the problems to the FBI managers responsible for theinvestigation, he was told they were going to just “pretend it didn’thappen.” German knew such misconduct would cripple theinvestigation, so he reported this and other problems with thecase directly through his chain of command to the Special Agentin Charge of the Tampa Division and the Assistant Director of theFBI Counterterrorism Division.

Rather than respond to these problems, the Tampa Division man-agers engaged in a cover-up. They initiated a large-scale effort tofalsify and backdate FBI records relating to the investigation.German was blocked from participating in the investigation of theterrorist groups, even though it essentially meant that the terror-ist groups would go uninvestigated. Incredibly, the FBI went so faras to hide the tape recording of the critical meeting between thetwo terrorist groups, and to deny in official FBI reports that themeeting ever happened. The FBI also altered investigatory docu-ments – sloppily using white-out.

When German discovered the Tampa managers’ deception hebrought his copy of the transcript of the taped meeting to theDepartment of Justice Inspector General and the FBI Office ofProfessional Responsibility. They immediately notified theTampa officials and allowed them to amend their reports.

While the amended reports now admitted that the FBI hadindeed monitored a meeting between the two groups, it falselycharacterized the nature of the meeting by omitting any men-tion of terrorism.

Meanwhile, senior FBI officials took concerted steps to retaliateagainst German for blowing the whistle. Overlooking his previoussuccess, the Unit Chief of the Undercover Unit at FBIHeadquarters told his staff that German would “never workundercover again.” When an agent working an unrelated terror-ism case attempted to use German in an undercover role, he wasprevented from pursuing the investigation for almost a yearbecause FBI Headquarters refused to submit the case forapproval. A second terrorism investigation was allowed to witheron the vine all for the sake of punishing German for whistleblow-ing. To German, the most lamentable thing was that “the benefitof my experience in infiltrating terrorist groups was lost to otherFBI undercover agents because I was barred from providing train-ing at FBI undercover schools.”

German endured the FBI’s retaliation for nearly two years. Duringthat time, the Inspector General never stepped in to prevent theretaliation, and the FBI refused to address the potential threat tonational security. In the spring of 2004, German finally decided toreport everything to Congress and to resign from the FBI inprotest. The public exposure finally drove the Inspector Generalto look into the FBI’s conduct, and in January of 2006, four yearsafter the two terrorist groups came together and a year and ahalf after German resigned, the IG finally issued a report thatconfirmed many of German’s allegations. The report was hollowvindication, however, because the IG made no recommendationsto hold the Tampa Division officials who mishandled the coun-terterrorism investigation accountable, and made no disciplinaryrecommendations for the officials that deliberately backdatedand falsified FBI records.

The IG report also confirmed that the FBI retaliated againstGerman for reporting the misconduct, but these results did notmean German would be compensated for suffering this abuse.Under the law as it exists today, the FBI is exempt from theWhistleblower Protection Act, and going through the “separatebut equal” procedure established by Congress in 1990 would haverequired German to re-prove that he had been retaliated againstin an adversarial proceeding before a group of Department ofJustice attorneys. German would have been required to gothrough the expensive and time consuming process of discoveryto seek the very records he gave the IG four years earlier, whilethe DOJ lawyers deciding the case could deny such requests andrefuse to look at evidence at their own discretion. “It was clearlya deck stacked against me,” German said.

Worst of all, however, the IG report repeated the FBI’s claim thatthe Tampa recording did not reveal discussions relating to terror-

WHISTLEBLOWER CASE STUDY

DISAVOWED 7

The Whistleblower Protection Act(“WPA”) is a law that was intended – asthe name might suggest – to encouragegovernment employees to step forwardand disclose wrongdoing within theiragencies. The idea behind the law is thatstrong, comprehensive whistleblowerprotection will promote good govern-ment, reduce government misconduct,and serve the important purpose of amore transparent government.

The WPA prohibits agencies from retali-ating against employees who disclosewithin their agency, to an InspectorGeneral, to Congress, or to the public anyinformation the whistleblower reason-ably believes is evidence of a violation oflaw, mismanagement, a gross waste offunds, an abuse of authority, or a sub-stantial and specific danger to public

health or safety.1 The law prohibits cer-tain kinds of retaliatory actions – likeharassment, demotion or firing – andprovides a process by which whistleblow-ers can seek independent review of anyalleged retaliatory employment action. Inorder to find any recourse in the WPA, afederal employee must:

ªBe an employee covered by the law;ªMake a disclosure covered by the law;ªDisclose to the right people; and ªSuffer the kind of retaliation that is

covered by the statute.

Most whistleblowers who work in thenational security agencies fail at the firststep: the law does not cover most nationalsecurity whistleblowers. The law specifi-cally excludes the employees of mostagencies involved in intelligence and

Most National Security Whistleblowers are Not Protected by theWhistleblower Protection Act

national security, including the FederalBureau of Investigation (FBI), the CentralIntelligence Agency (CIA), the DefenseIntelligence Agency (DIA), the NationalSecurity Agency (NSA), the uniformedmilitary, government contractors, and air-port baggage screeners.2 The law doescover, among others, some employees inthe Department of Homeland Security,the Department of Energy, and civilian,non-intelligence employees of theDepartment of Defense (DoD).

Government contractors working onnational security projects are also unpro-tected by the WPA. Contractors areincreasingly playing important quasi-governmental roles in places like Iraqand Afghanistan – places where we alsoneed whistleblowers.

ism, and that the mishandled investigation did not represent amissed opportunity to infiltrate terrorist groups. FortunatelySenator Charles Grassley and the Senate Judiciary Committeedemanded to see the transcript and, after two years, the FBI final-ly turned it over. “[I]t flatly contradicts statements made byBureau officials trying to downplay the incident and discreditMichael German,” Senator Grassley said in a written statement.He explained that, “[t]he transcript clearly shows a whitesupremacist and an Islamic militant talking about building opera-tional ties between their organizations.”

Looking back on his ordeal, German said that “what’s importantfor the public to understand is not what happened to me person-ally, but how the national security is put at risk when agents whosee problems can’t report them for fear of retaliation.”


Frank Terreri

Frank Terreri had already spent over fifteen years in the field of lawenforcement when, following 9/11, he decided to become a FederalAir Marshal. The position meant flying five days a week on theflights deemed to be the most high-risk for a terrorist attack, andrequired a constant state of alertness to any danger on board. Thehours were long and erratic, but “I had a patriotic duty to serve thiscountry the best I could and I felt the best way to do that was to bean air marshal,” Terreri explained.

During Terreri’s first year with the Federal Air Marshal Service(FAMS), the agency brought in a new Director, Thomas Quinn. Quinnquickly began implementing a series of radical policy changes. Oneof the earliest involved a new dress code. While such a policy mayseem innocuous, to the marshals it was clearly problematic. “Whenwe first started as air marshals, the biggest thing we were told is‘don’t look like a police officer.’ Under Quinn’s policy, we had to cutour hair, be clean shaven, and basically stand out like a sore thumbwhenever we went anywhere,” Terreri remarked. The crucial secre-cy of the marshals’ identity was further jeopardized by another ofQuinn’s policies. He required marshals to display their credentials inplain view of the regular passengers. There were also predictableseating patterns for marshals on board aircraft, as well as a hotelpolicy requiring all marshals to stay at the same hotel.

As President of the FAMS branch of the Federal Law EnforcementOfficers Association, Terreri knew many marshals were growingconcerned. The increased conspicuousness of the marshals at theairport and on board flights seemed to undermine their very pur-pose. Terreri understood their frustration. “The kind of people whotake this job are the kind of people who gave up a lot to do this,” heexplained. He added that, “They wanted to stop terrorist activity, andthen what we were doing was negligible because we were so easilyouted.” Terreri began going through his chain of command toaddress the problems. At the instruction of his direct supervisor, hewrote a letter to Quinn. After waiting several weeks with no reply, hewrote again. Again, he received no reply.

On October 13, 2004, a day he was not scheduled to work, Terreriused his home computer to email two other marshals about an arti-cle he had seen in People magazine. The piece was about “a day inthe life of an air marshal,” and the marshal being chronicleddivulged detailed information about the procedures, tactics, andweaponry used by marshals. In the email to his colleagues, Terreridescribed the marshal in the article as a “sellout” for sharing suchsensitive information with the public.

Once he sent his email, Terreri did not give it another thought. “I wasvery well aware that every email went directly to management,”Terreri said, “so obviously I wasn’t going to send anything that Ithought would get me into trouble.” Several hours later, he receiveda call from a supervisor, inquiring whether he would be home laterin the afternoon. When Terreri asked why, his supervisor said that

some agents were coming out to his house, but would not explainwhy. Terreri was baffled. Then several marshals arrived at hishouse to strip him of his gun and badge. They also informed himthat he was being placed on restricted email access and paid admin-istrative leave, and that the Department of Homeland Security waslaunching a full investigation into his conduct. And then Terreri wastold why: “I was told the reason was for an email I wrote. I had noidea what they were talking about.”

After three weeks on administrative leave, Terreri was called backinto the office to perform secretarial work, which he continued to dofor seven months. Meanwhile, Quinn had come up with new allega-tions against Terreri, ranging from the “misuse of business cards” to“disclosure of sensitive security information,” and demanded that afull investigation be conducted into each charge. Terreri, who did notinitially see himself as a whistleblower, was receiving a crash coursein the kinds of retaliation that whistleblowers face.

At first Terreri believed that everything could be resolved through asimple meeting with his supervisors. “I thought they would want towork it out because we are all on the same team,” he explained.However, as the months dragged on and he realized that this wasn’tto be the case, Terreri contacted the ACLU of Southern California.Attorney Peter Eliasberg agreed to represent him. The ACLU held apress conference on Terreri’s case on April 22, 2005. Within threehours of the conference, Terreri received a call from FAMS to notifyhim that he had been reinstated to duty. In fact, Terreri learned thathe had been cleared for active flight duty weeks before, but none ofhis supervisors had bothered to notify him.

Terreri returned to work and to his position as President of FLEOA-FAMS, to the delight of his colleagues who had supported himthroughout his ordeal. He noted that “even when I was going throughretaliation, it was never at an office level. Everybody knew how ridicu-lous it was – I’ve never been in trouble in seventeen years, and nowall of a sudden there are four investigations in a year?” Terreri alsolearned the results of those investigations, thanks to a Freedom ofInformation Act request he filed. Of the three possible results in suchinvestigations – substantiated, unsubstantiated, or unfounded – everyone of the charges against him was held to be unfounded.

Terreri is optimistic about the future of FAMS. Many of Quinn’s poli-cies have been revoked since his resignation in February 2006, and“the new management is really open to ideas and suggestions” fromthe air marshals, according to Terreri. However, he is still angryabout his ordeal and the impact it could have had on his family: “It’sworth it in the end, because everything’s safer, but you pay a very bigpersonal toll. It puts you in a bad position, worrying about receivinga paycheck,” Terreri said. He explained, ”My eight-year-old son hasautism, and my wife doesn’t work because of that. What my wifeand son had to go through… there is a lot on the line here, and thisdirector knew that, and yet he continued with that retaliation.”


DISAVOWED 9

SPECIAL PLAYERS IN THE WHISTLEBLOWER PROTECTION WORLD

Inspectors General (IG) - InspectorsGeneral were established to serve asindependent investigators and watch-dogs, working to combat waste, fraud,and abuse within an agency. With respectto whistleblowers, IGs receive complaintsof agency wrongdoing, investigate theproblem, and issue findings and recom-mendations. Some IGs also investigatewhether whistleblowers have been retal-iated against by the agency. Some IGshave, in fact, issued reports condemningretaliation. For example, the DOJ IGissued a report finding the FBI hadimproperly retaliated against SibelEdmonds when it fired her primarily forblowing the whistle (see below).

However, there are some real flaws withthe IG system. IGs are often unable tomaintain a whistleblower’s confidentialitybecause the IG is often required to reportcomplaints to the agency head. While IGsare supposed to be independent, mostIGs are nominated by and serve at thepleasure of the President. IGs also reportdirectly to the head of the agency. Where

IG reports involve classified information,it is the agency, not the IG that deter-mines what information in an IG reportcan be released to the public. Some havequestioned the amount of real independ-ence these IGs have. Additionally, IGshave no power to force the agency to fixproblems – the results of their investiga-tions are not binding. Finally, agenciessometimes use IGs to retaliate againstwhistleblowers – by initiating IG investi-gations about whistleblowers.

Merit Systems Protection Board (MSPB)– the MSPB is an administrative boardthat hears whistleblowers’ complaintsabout retaliation. The MSPB can ordercorrective action, such as reinstating thewhistleblower to the position she hadbefore the retaliation, issuing back pay tothe whistleblower, and covering anymedical costs and/or attorney’s fees thatresulted from the retaliation. Generally,the MSPB can only hear complaints fromemployees protected by the WPA – it can-not hear complaints from most nationalsecurity whistleblowers.

United States Office of Special Counsel(OSC) - The OSC is an independentagency that investigates, among otherthings, complaints of federal whistle-

blower retaliation. It is also an entity towhich certain whistleblowers can makedisclosures about agency wrongdoing.OSC investigates retaliation complaintsand has the power to bring a case on awhistleblower’s behalf before the MeritSystems Protection Board. Throughthese cases, the OSC can seek correctiveaction to help whistleblowers, such asseeking reinstatement or back pay. TheOSC can also try to get the Merit SystemsProtection Board to discipline retaliators.OSC cannot, however, investigate or acton retaliation complaints by employeeswho are not covered by the WPA. Thus,OSC is of no help to most national secu-rity whistleblowers. OSC has been thetarget of harsh criticism as of late for itslong delays and its perceived failure tohelp whistleblowers.

Federal Circuit Court of Appeals – TheFederal Circuit Court of Appeals is theonly federal appeals court authorized tohear appeals of MSPB rulings.Unfortunately, the Federal Circuit almostnever rules in favor of whistleblowers.The Court is known traditionally to behostile to whistleblower claims. From1995 through 2005, only one whistleblow-er claimant out of ninety-six prevailed onthe merits of her appeal.3

OTHER WHISTLEBLOWERPROTECTION LAWS

Some employees not protected by theWPA are covered by other whistleblowerprotection laws. For example, members ofthe armed services may be covered by theMilitary Whistleblower Protection Act.4

There is also a separate law that prohibitsretaliation against FBI whistleblowers whomake disclosures directly to the AttorneyGeneral (which is an unlikely scenario).5

These separate schemes also have theirinadequacies and may even be more lim-

ited than the WPA. For example, the FBI’ssystem is a recipe for failure. Rather thangetting a hearing before an independentarbiter, FBI whistleblowers are allowed tobring their case only to a group of DOJattorneys in the Office of AttorneyRecruitment and Management (OARM)who are not truly independent from theagency they work for. Even where theInspector General has found in favor of thewhistleblower – and even where all of theevidence is already in the hands of theDepartment of Justice – the whistlebloweris forced to bear the cost of discovery andre-prove her case to the OARM attorneys.

SMOKE AND MIRRORS: SPECIAL PROBLEMS WITH THEINTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTION ACT

Whistleblowers who disclose agencyviolations of law or abuses of authoritythat involve classified information areunprotected. Employees with classifiedknowledge of wrongdoing are facedwith an impossible choice: discloseclassified evidence to bring a problemto the public’s attention or stay quiet soas not to risk criminal prosecution,administrative sanctions, loss of securi-ty clearance, or firing. Governmentagencies routinely use their monopolyover classification to hide embarrassingor incriminating information.

While some laws create mechanisms bywhich national security whistleblowers –many of whom have classified knowledgeof wrongdoing or abuse – can discloseclassified information through specialchannels, none of these mechanismsprovide any legal protection for a whistle-blower if she is retaliated against forgoing through even the authorized com-plaint channels.

Whistleblowers who disclose classifiedinformation risk criminal prosecution. Aseries of laws (part of the Espionage Act)make it a crime for federal employees todisclose most kinds of national defenseor classified information under most cir-cumstances.6 Some of these laws punishfederal employees who disclose the infor-mation with the intent to harm nationalsecurity but some laws may arguablypunish disclosure regardless of intent. Asthere have not been many prosecutionsunder these statutes, the courts have notdetermined whether a whistleblower dis-closing classified information thatshowed government abuse or illegalitywould be subject to prosecution underthese laws. It is certainly arguable that awhistleblower seeking to disclose govern-ment misconduct for the good of thenation is not acting with the intent to harmnational security, but the case law is

unclear. Because of the uncertainty, awhistleblower must make a choice ofconscience and decide that alerting thepublic to illegal government actions or anabuse of government authority is worthrisking criminal prosecution.

Some laws allow “channels” for disclos-ing classified information about govern-ment wrongdoing to certain people orbodies, but provide no actual legal pro-tection if retaliation results from usingone of those channels.

The WPA does not protect against retalia-tion for disclosing classified information.Disclosures of classified information toanyone other than an IG or the OSC arenot protected disclosures under theWhistleblower Protection Act.7 The WPAdoes not protect most national securitywhistleblowers, even if the whistlebloweris disclosing only unclassified information.

The Intelligence Community WhistleblowerProtection Act gives only the appearance of

protection. In 1998, Congress passed theIntelligence Community WhistleblowerProtection Act (ICWPA) in an effort toencourage employees and contractors inthe intelligence agencies to report gov-ernment misconduct to parts ofCongress – even if the misconductinvolved classified information. The lawallows employees in the CIA, parts of theDepartment of Defense (DoD), the NSA,and FBI, among others, to notify theiragency’s Inspector General that theyintend to report a matter of “urgent con-cern” to Congress.8 But, even if whistle-blowers use this legal channel and thenare retaliated against, the whistleblowerhas no remedy – she cannot go to a courtor administrative body to complain. Allthe law does is create a process for dis-closure of information. It does not prohib-it retaliation for that disclosure. In addi-tion, the process under the law usuallymeans a whistleblower’s boss is alertedabout the disclosure, which is an invita-tion to retaliation.


Whistleblowers Who Disclose Abuses Related to Classified Matters are Unprotected

Whistleblowers have to tell the agency IGbefore they can talk to Congress directly.If the IG takes a whistleblower seriously,the head of the agency will always beinformed about the whistleblower’s com-plaint before she is even allowed to talkto Congress.

Whistleblowers cannot talk to just anymember of Congress; in fact, they cannoteven talk to their own members unlessthose members are on the intelligencecommittees.

The law does not create any rightsthat a whistleblower could enforce ina court or before an independentreview body. If a whistleblower fol-lows the process but is retaliatedagainst anyway, she is on her own.

The agencies can try to stop a whistle-blower from talking to Congress, andoften do so by claiming Congress is notauthorized to hear what the whistleblow-er has to say.

DISAVOWED 11

Sibel Edmonds

In the immediate aftermath of the 9/11 terrorist attacks, SibelEdmonds went to work for the Federal Bureau of Investigation’s trans-lation unit. The FBI had a substantial backlog of foreign languageintelligence that needed to be translated into English. As a TurkishAmerican fluent in three Middle Eastern languages, Edmonds waswell placed to help her adopted country in a time of need.

Edmonds heard news reports that the FBI did not have enough qual-ified translators. “I saw it as an opportunity to do something to con-tribute,” she said. “I knew it was something I can do, and they saidthat they really needed it,” she added.

The timing was inconvenient. Edmonds was busy with plans to pur-sue a master’s degree. But she decided to accept a job offer anyway.“This horrifying event had taken place, there may be more attacks,”Edmonds said, recalling the mood shortly after 9/11. After such ahorrific event, she said, “you just wonder, what can I do to help?”

Edmonds was not on the job long before she realized that the FBI’stranslation unit was dangerously dysfunctional. One of her responsi-bilities was verifying the work of other translators. She realized thatsome of them lacked the language skills necessary to accuratelytranslate foreign intelligence into English. “I was horrified,” Edmondssaid. “I thought that the bad translations might cause us to missimportant information about the next terrorist attacks,” she added.

Flawed translations quickly became the least of Edmonds’ worries.Edmonds learned that one of her colleagues, also a translator, hada close relationship with an organization the FBI was actively mon-itoring. “I was afraid that she was helping to protect them,”Edmonds said. Her suspicion deepened when the colleague insist-ed on translating all wiretaps of that organization. Edmonds dou-ble-checked some of her colleague’s work. The colleague “hadmarked as ‘not pertinent’ some text containing important informa-tion that the agents should have,” Edmonds reports.

Edmonds shared her concerns about shoddy translations and hercolleague with her supervisor. When he failed to act, she reportedher concerns up the chain of command. Her claims were dis-missed at every level.

The FBI began to retaliate against Edmonds as she continued todraw attention to problems within the translation unit. In February2002, FBI agents seized her home computer. A month later, agentsasked Edmonds to take a polygraph test, and she agreed.Investigators asked probing questions about whether she hadimproperly disclosed classified information. She passed the test.Soon after, the FBI fired her anyway. As she was escorted out of theoffice building by security agents, one told her that she “wouldnever step foot in the FBI again.”

Edmonds believed that the FBI fired her for revealing unpleasanttruths about its failings. Not content to go down without a fight,Edmonds approached members of Congress to share what she

knew. They took interest. Senators Charles Grassley and PatrickLeahy arranged for the FBI to hold two unclassified briefings forcongressional officials about Edmonds’ claims. They also request-ed that the Department of Justice’s Office of the Inspector Generalinvestigate the FBI’s handling of Edmonds’ allegations.

Edmonds also sued the FBI to get back her job. She asserted thatthe FBI unfairly fired her in retaliation for bringing to light seriousproblems with the FBI translation unit. Rather than deny the truthof Edmonds’ statements, the government invoked the “statesecrets” privilege to argue that Edmonds’ case raised such sensi-tive issues that the court was required to dismiss it without evenconsidering whether her claims had merit.

In an apparent attempt to bolster its state secrets argument, thegovernment then retroactively classified its two-year old briefings toCongress. When the Office of the Inspector General completed itsreport, the FBI immediately classified it so that it was never madepublic. The judge accepted the government’s arguments and dis-missed Edmonds’ case. She appealed.

A few days before the appeals court heard Edmonds’ case, theInspector General published an unclassified summary of its report.The summary vindicated Edmonds. It explained that “many of[Edmonds’] allegations were supported, that the FBI did not takethem seriously enough, and that her allegations were, in fact, themost significant factor in the FBI’s decision to terminate her servic-es.” The Inspector General urged the FBI to conduct a thoroughinvestigation of Edmonds’ allegations. It stated that “the FBI didnot, and still has not, conducted such an investigation.”

In the appeals court, the government continued to argue that thestate secrets privilege deprived the judiciary of the right to hearEdmonds’ claims. In fact, the appeals court closed the argumentsfor the case to the press and general public. Even Edmonds andher attorneys were forbidden from hearing the government presentpart of its argument. In a one-line opinion containing no explana-tion for its decision, the appeals court agreed with the governmentand dismissed Edmonds’ case. Edmonds asked the SupremeCourt to review her case, but it declined.

Edmonds took her loss as a call to action. She reached out to otherwhistleblowers. Together, they formed the National SecurityWhistleblowers Coalition. “If you’re a private citizen and you wit-ness a crime, what do you do?” Edmonds asked. “The first thinga good Samaritan would do is call 911,” she said. The situation isfar different if you are an FBI employee. “Who do you call? Youcan’t call 911. Based on existing law you can’t go to Congress. Youcan’t go to court. Whistleblowers don’t have a 911.”

For Edmonds, the main beneficiaries of whistleblower protectionsare members of the public. “It’s not about some whistleblower’scareer,” Edmonds explains. “It’s about the public’s right to know.”



One of Congress’ most important jobs isto monitor and oversee what the execu-tive branch is doing, particularly withrespect to intelligence, terrorism, andnational security-related matters. Thecongressional intelligence committeesexist specifically to address nationalsecurity related matters. All members ofCongress (but not all staffers) can receiveclassified information. In order to fulfill itsoversight function, Congress needs infor-mation about what the executive branchis doing and whistleblowers are a criticalsource of information. The SupremeCourt has recognized that Congress “can-not legislate wisely or effectively in theabsence of information respecting theconditions which the legislation is intend-ed to affect or to change; and where thelegislative body itself does not possessthe requisite information – which is notinfrequently true – recourse must be hadto those who do possess it.”9

Sometimes Congress gets the informa-tion it needs through reports the execu-tive branch is required to file withCongress, or from testimony from anexecutive branch official. When the exec-utive branch refuses to share informationwith Congress, whistleblowers are a crit-ical source of information.10

A series of laws give the impression thatemployees cannot be retaliated against for

disclosing wrongdoing to Congress. As aresult, most employees imagine that even ifthey have no rights to speak to the publicabout a problem, they can always make adisclosure to their Congressperson. Wrong.While a patchwork of laws give the appear-ance that whistleblowers can make disclo-sures to members of Congress without fearof retaliation, for national security whistle-blowers, it is not that simple.

The WPA appears to protect whistleblowerswho disclose wrongdoing to Congress, but,again, national security whistleblowers arenot protected by that law.11

The Lloyd-LaFollette Act is a law thatsays the right of federal employees topetition Congress or provide informationto Congress “may not be interfered withor denied.”12 But it is unclear whether thislaw provides any real remedy for whistle-blowers retaliated against for speaking toCongress. The law originated in 1912 inresponse to gag orders issued byPresidents Theodore Roosevelt and Taftthat prohibited executive branch employ-ees from communicating directly withCongress without agency permission,even if Congress asked for information.

Anti-Gag Statutes. Each year, Congresspasses an “anti-gag” statute as part of itsfunding bill for the intelligence agencies.This statute prohibits intelligence agen-

Whistleblowers Can Easily be Retaliated Against Even for Talking to Congress

cies from paying employees who retaliateagainst whistleblowers for communicat-ing to Congress. Similarly, each yearCongress passes a law that says agencymoney cannot be used to enforce non-disclosure agreements against employ-ees who communicate with Congress.The anti-gag statutes simply control howagencies can spend their money, but theydo not provide any mechanism forwhistleblowers to enforce the statute.

The Intelligence Community WhistleblowerProtection Act provides a process throughwhich national security whistleblowerscan make disclosures to Congressionalintelligence committees. It does not pro-vide whistleblowers with the right tomake disclosures of wrongdoing to anymember of Congress, and it does notactually prohibit or protect against retalia-tion for using the ICWPA process.

In fact, it is often easy for an agency toretaliate against an employee, or to blockthe employee from talking to Congress inthe first place. The agency can also claimthat information is too sensitive to beshared with Congress. If this happens,none of the laws give the whistleblowerany real protection.When Congress passed the IntelligenceCommunity Whistleblower ProtectionAct, it made these findings:

DISAVOWED 13

“The Congress finds that—(1) national security is a shared responsi-bility, requiring joint efforts and mutualrespect by Congress and the President;(2) the principles of comity between thebranches of Government apply to thehandling of national security information;

(3) Congress, as a co-equal branch ofGovernment, is empowered by theConstitution to serve as a check on theexecutive branch; in that capacity, it has a‘need to know’ of allegations of wrongdo-ing within the executive branch, includingallegations of wrongdoing in theIntelligence Community;

(4) no basis in law exists for requiringprior authorization of disclosures to theintelligence committees of Congress byemployees of the executive branch ofclassified information about wrongdoingwithin the Intelligence Community;

(5) the risk of reprisal perceived byemployees and contractors of theIntelligence Community for reportingserious or flagrant problems to Congressmay have impaired the flow of informa-tion needed by the intelligence commit-tees to carry out oversight responsibili-ties; and

(6) to encourage such reporting, an addi-tional procedure should be establishedthat provides a means for such employ-ees and contractors to report to Congresswhile safeguarding the classified infor-mation involved in such reporting.”13

There is bipartisan recognition thatCongress needs whistleblowers to stepforward:

-Sen. Patrick Leahy, D-VT: “Protectingwhistleblowers is vital to the security ofour nation. People who literally risk every-thing to point out waste, fraud, and abusein our government deserve a reasonableguarantee that they will not suffer retalia-tion for their patriotism. Unfortunately,current whistleblower protection lawshave been interpreted so narrowly thatsuch a guarantee does not exist.”14

-Sen. Chuck Grassley, R-IA: “It’s whistle-blowers who often serve as the checkagainst the wrongdoings of the federalgovernment. Whistleblowers in the execu-tive branch have helped me to do my job ofoversight. It’s simply not fair, nor is it goodgovernance for Congress to enact whistle-blower protections on other branches ofgovernment without giving its ownemployees the same considerations.”15

-Rep. Bruce Braley, D-IA – “We need tosend a strong message that protecting therights of whistleblowers is not aDemocratic issue, it is not a Republicanissue, it is an issue that impacts the livesand the safety of every American citizen.”16

-Rep. Todd Platts, R-PA – “I would like tothank the courageous citizens who haveblown the whistle on waste, fraud, andabuse in the Federal Government. If wetruly want to eliminate waste, fraud, andgross mismanagement throughout the

Federal Government, then we need toempower and protect our Federalemployees who are on the frontlines ofgovernment operations and best posi-tioned to witness [these abuses].”17

-Rep. Henry Waxman, D-CA –“Protecting whistleblowers is a keycomponent of government accountabil-ity. Federal employees are on theinside. They can see where there iswaste going on or if there is corruptiongoing on. They can see the signals ofincompetent management, and whatwe want is to enable them to let usknow, those of us in Congress, aboutthese kinds of problems.”18

-Rep. Christopher Shays, R-CT – “Theuse of expansive executive authoritydemands equally expansive scrutiny byCongress and the public. One absoluteessential source of information to sustainthat oversight is whistleblowers.”19

-Rep. Sheila Jackson-Lee, D-TX – “Allemployees should feel free to tell thetruth. All employees should be protect-ed, particularly Federal employees,particularly in the backdrop of 9/11…the whistleblower protections willallow us to run this country in the rightway, save lives, and have employeesthat are Federal Government employ-ees give us the facts so we can do theright thing.”20

MEMBERS OF CONGRESS KNOW THEY NEED WHISTLEBLOWERS


Russ Tice

Russ Tice began his career in U.S. Intelligence shortly after finish-ing college and doing some post-graduation travel through Europein 1985, but he entered the field by chance. Since boyhood, Tice haddreamed of flying F-15 fighter jets for the U.S. Air Force, only to findout during a flight physical that he was too tall to fly an F-15, leav-ing him “crushed.” Tice, however, still wanted to work for the AirForce, so when a representative pointed out that his technical andgeo-political background made him a perfect candidate for intelli-gence work, he decided to give it a try. Over the next two decades heworked as a high-level intelligence analyst for the Air Force, Officeof Naval Intelligence, Defense Intelligence Agency (DIA), andNational Security Agency (NSA).

In April 2001, Tice wrote to his superior officials at the DIA with hissuspicions about a female coworker possibly engaging in espionageactivities for China. His concerns, expressed both in his letter and infollow-up emails, were brushed aside by DIA counterintelligenceofficials. In 2002, Tice took a new job with the NSA, a position whichrequired that he undergo a polygraph exam and psychological test-ing, both of which he passed.

Retaliation began in the spring of 2003, and took an unexpected andhumiliating form. Expressing concern over Tice’s letter regarding hisDIA coworker from nearly two years before, NSA security orderedhim to undergo a second round of psychological testing, nine monthsafter passing the first exam. Although the results of his April 23, 2003tests came back normal, the Defense Department psychologist con-ducting the exam diagnosed Tice as having psychotic paranoia. Ticetried to fight the diagnosis. “I got a third NSA psychologist to tellNSA’s security office I was normal and I also went to an independentpsychologist who said I was normal, just like every other psychologi-cal evaluation I ever had in my career,” he said. Nevertheless, Tice’ssecurity clearance was suspended in June 2003.

As a result of his security clearance suspension, Tice was unable toconduct the intelligence work he had been performing for nearlytwo decades, and he was instead assigned to a series of menialtasks. “I was forced to work in the NSA motor pool, then forced offall NSA property and forced to work in a warehouse lifting veryheavy furniture, which resulted in a back injury that caused nervedamage in one of my legs,” he said. Few of Tice’s coworkers offeredhim support during this period. “The rank and file is terrified to bearound a whistleblower for fear they will pay a price for it. I was toldthat people in my office were ordered not to contact me and when Icalled the office, I could tell they were very nervous and that as soonas I hung up the phone they would call the NSA’s security office toinform on everything I had spoken to them about,” he explained.

In spite of this treatment, Tice stayed on with the NSA. “I was veryangry and I was not going to give them the satisfaction of forcing meto resign,” he said. “If they wanted me out, I was going to force theirhand.” In the meantime, Tice attempted to speak with members ofCongress about his situation. “By that time, I knew my career was

over,” he explained. He was ultimately fired in May 2005 when hisclearance was formally revoked and his appeals of that decisionwere unsuccessful.

After the New York Times broke the story about the NSA’s surveil-lance program in December 2005, Tice went back to Congress toattempt to disclose other information about NSA surveillance activ-ities. According to Tice, “The decision to go all the way to Congresswith this information was tearing me up. I was weighing the poten-tial compromise by Congress of the information, and the potentialloss to national security if it were to get leaked from the Hill, versusthe price the American people would pay in terms of the loss oftheir liberties.” After all of this grappling with his decision, though,the NSA successfully blocked Tice from speaking with any mem-bers of Congress about these issues. “The NSA said that no one onthe intelligence committees in Congress had a high enough securi-ty clearance to hear what I wanted to tell them,” he explained. “TheIntelligence Community Whistleblower Protection Act is set up toallow intelligence officers to go directly to the intelligence commit-tees in Congress but to this day these committees are not allowedto hear what I have to tell them.”


One of the easiest (and most common)ways for agencies to retaliate against anational security whistleblower is to sus-pend or revoke her security clearance.Without a clearance, whistleblowers innational security agencies cannot do theirjobs. Without a clearance, these whistle-blowers can be marginalized, givenmenial work, and eventually fired with lit-tle or no recourse. Without a securityclearance – or with a record of a clearancebeing suspended or revoked – whistle-blowers often find themselves informallyblacklisted and unable to get jobs withintheir fields. When it comes to securityclearance-related retaliation, employerscan basically retaliate with impunity.

No WPA Protection. The WPA providesno protection for retaliation throughsecurity clearance suspension or revoca-tion.21 This means that even if an employ-ee is covered by the WPA, the employeeis unprotected if an agency retaliates notby suspending or firing the employeeoutright but by first revoking her securityclearance and then firing her becauseshe no longer has a clearance.

There is no independent court or admin-istrative body that can review whether asuspension or revocation of a securityclearance is retaliatory. Because securi-ty clearance retaliation is not covered bythe WPA, the MSPB cannot hear com-

plaints about security clearance retalia-tion. Even if a whistleblower could getinto a regular federal court to complainabout security clearance retaliation, thecourts are notoriously deferential toclearance-related decision-making.Instead, employees who blow the whistleand find themselves without a clearanceliterally have nowhere else to turn but tothe retaliator itself – the agency. Manyemployees can contest security clear-ance decisions within an agency process,but in this process the agency is theaccused, the judge, and the jury. As youwould expect, most employees are notvindicated through this process.

DISAVOWED 15

If Employers Retaliate by Attacking an Employee’s Security Clearance,There Is Almost Nothing a Whistleblower Can Do to Save Her Job

Secrecy Can Be Used as a Weapon to Silence a Whistleblower

The more information a governmentkeeps secret, the more important it isthat whistleblowers feel safe steppingforward to disclose wrongdoing. Secrecyis a tool that the government can use toshield embarrassing and even criminalinformation. In the past few years, thegovernment has aggressively argued thatnational security prevents disclosure ofinformation pertaining to torture andabuse of detainees, NSA warrantlesswiretapping, the CIA’s practice of kidnap-ping people and sending them to thirdworld countries for torture and interroga-tion, and the FBI’s use of the Patriot Act’sexpanded surveillance powers. Secrecyhas also been used as a weapon tosilence whistleblowers, to discredit andisolate them, and to leave them without aremedy when they are retaliated against.The government should not be allowed touse secrecy as a tool to avoid accounta-bility for its wrongdoing.

Non-disclosure agreements. Employeeswho work in national security agencies

often have to possess a security clearanceand sign a secrecy (non-disclosure)agreement as a requirement of theiremployment. These agreements prohibitwhistleblowers from publicly disclosingclassified information. Some agencieshave policies that prevent employeesfrom disclosing even unclassified infor-mation about agency matters withoutprior approval. Employees can be disci-plined or fined for failing to abide by theseagreements and policies. Employees arestill bound by the secrecy agreementseven after they leave the federal service.

Threatening prosecution. The agencycan use the threat of prosecution underthe criminal Espionage Act statutes dis-cussed above to effectively silencewhistleblowers.

Using classification to bar employeesfrom talking to Congress. The agencycan claim information a whistleblowerwants to disclose is so sensitive that noteven members of Congress can hear

about it. Even when whistleblowers areallowed to disclose classified informationto members of Congress, it is difficult toget access or get a member of Congressto pay attention. Most complaints get fil-tered up to a member of Congressthrough the member’s staff, but staffmembers don’t necessarily have securityclearance. This means that, in manycases, a whistleblower can only discloseinformation directly to a member ofCongress. When the information is par-ticularly sensitive, it has to be shared in acontrolled environment which simplyadds to the hurdles facing a whistleblow-er. As Representative Carolyn Maloneyhas said: “Our system, when we classifythings, it’s supposed to be used fornational security, not to punish whistle-blowers or cover up a ‘mistake’ possiblyin an agency… every single [government]agency that may have a whistleblowerthat they want to silence or whatever canjust sit there and classify everythingabout that person so they can’t evenexpress their situation.”22


Impairing full and frank discussionswith a lawyer. Federal employees withclassified knowledge often find it quite dif-ficult, if not impossible, to get legal adviceor representation when retaliation occurs.A whistleblower cannot share classifiedinformation with an attorney unless theattorney has a security clearance and thegovernment thinks the attorney has a“need to know” the classified information.This is a substantial obstacle for employ-ees who simply want to learn whetherthey have the right to blow the whistle orwant to learn precisely what the risksmay be. There are not many attorneyswith security clearance that work onbehalf of whistleblowers and the govern-ment has a great deal of control overwhat can and cannot be shared. It is notenough that the government has granteda lawyer a security clearance in the past.An attorney must ask for clearance for

each new case. Unless a lawyer hassecurity clearance, national securitywhistleblowers cannot tell their lawyersthe full story – they must omit importantaspects of what happened to them. Thismakes it quite difficult for a whistleblowerto convince an attorney that her case isworth taking. Whistleblowers will need tofind a lawyer who can get security clear-ance for their case or trust a lawyer torepresent them ably despite that thelawyer may partially be in the dark.

Shutting cases down on secrecygrounds. The government often uses dif-ferent forms of secrecy to get casesbrought by whistleblowers thrown out ofcourt. As of late, the government’sfavorite secrecy weapon is the statesecrets privilege. The state secrets privi-lege, when used properly, permits thegovernment to block the release of evi-

dence in a lawsuit that, if disclosed, wouldcause harm to national security. However,the government is increasingly using theprivilege to dismiss entire lawsuits at theoutset – by telling a court at the verybeginning of the case that the subject ofthe suit is so secret that not even a courtshould consider it, or that the parties can-not litigate the case without harm to thenation. The government has recentlyinvoked the privilege to stop a retaliationsuit brought by a national securitywhistleblower. It has also used the privi-lege in an effort to evade review of theNSA’s warrantless wiretapping program,claims brought by men kidnapped andtortured by the CIA, and even a federalemployee’s race discrimination claim.This once-rare tool is being used not toprotect the nation from harm, but to coverup the government’s illegal actions andprevent further embarrassment.

- “I have long believed that too muchmaterial is classified across the federalgovernment as a general rule . . . .”Donald Rumsfeld, Former Secretary ofDefense23

- “[W]e overclassify very badly. There’s alot of gratuitous classification going on . .. .” Porter Goss, Former Director of the CIAand Former Chair of the House IntelligenceCommittee24

- “It quickly becomes apparent to anyperson who has considerable experiencewith classified material that there ismassive overclassificaton and that theprinciple concern of the classifiers is notwith national security, but with govern-mental embarrassment of one sort oranother.” Erwin N. Griswold, formerSolicitor General who fought to keep thePentagon Papers secret and who lateradmitted that he had never seen “any trace

of a threat to the national security” in thePentagon Papers case.25

- “Each intelligence agency has its ownsecurity practices, outgrowths of theCold War. We certainly understand thereason for these practices . . . . But thesecurity concerns need to be weighedagainst the costs. Current securityrequirements nurture overclassificationand excessive compartmentation ofinformation among agencies. Eachagency’s incentive structure opposessharing, with risks (criminal, civil, andinternal administrative sanctions) but fewrewards for sharing information. No onehas to pay the long-term costs of over-classifying information, though thesecosts—even in literal financial terms—are substantial. There are no punish-ments for not sharing information.” 9-11Commission Report. 26

TOO MUCH SECRECY – NOTORIOUS OVER-CLASSIFICATION OF INFORMATION

DISAVOWED 17

Investigating the whistleblower.Sometimes, when a national securitywhistleblower speaks up – maybe to aboss, to the IG, or to Congress, the agencywill respond by starting an investigationinto the whistleblower, in an effort toharass, intimidate, or discredit her. Thewhistleblower often finds herself on theother side of an official investigation. Awhistleblower may make a complaint tothe agency’s IG about an internal agencyproblem and then the agency might askthe IG to investigate whether the whistle-

blower has improperly disclosed sensitiveinformation or failed to follow agency pro-cedures. Whistleblowers often face intensescrutiny from managers and bosses afterthey blow the whistle, with managers andbosses waiting for the whistleblower tomake one tiny mistake that may justify rep-rimand, demotion, or firing.

Broken investigatory mechanisms – theprotectors failing to protect. Whistleblowersreport problems to the IG or OSC or to theirbosses because they want to see a problem

investigated and fixed. Often, however,IGs end up investigating whether awhistleblower has been retaliatedagainst, but they do not investigate theunderlying problem the whistleblower istrying to report. Delays and inaction arealso rampant problems. Many whistle-blowers wait months and years for agen-cies to act on their complaints.

When a National Security Whistleblower Asks for an Investigation of Agency Wrongdoing, She May Be Subjected to RetaliatoryInvestigations of Her Own Conduct

Bogdan Dzakovic

Like so many Americans, Bogdan Dzakovic was devastated by the 9/11terrorist attacks. He was not, however, surprised by them. As a TeamLeader for the Federal Aviation Administration (FAA)’s Red Team,Dzakovic had spent six years orchestrating undercover tests of airportsecurity, and warning FAA authorities about widely known securityweaknesses. Despite these warnings, the FAA failed to act.

Dzakovic joined the FAA as an air marshal in 1987 and later served asa Team Leader. In 1995, Dzakovic became a Team Leader of the RedTeam. Created by Congress in 1990, the Red Team simulated varioustypes of terrorist attacks at airports to gauge effectiveness at prevent-ing terrorist attacks. Dzakovic chose to join the Red Team becauserather than “picking up the pieces after something happens, it mademore sense to prevent disasters.”

Dzakovic quickly learned that airport security was in disarray. He said,“We smuggled simulated bombs, and did a lot of surveillance at air-ports, breaching security on the various doors in and out of the termi-nal and airport perimeter.” His agents were able to get simulatedexplosives through security and onto aircraft over 90% of the time.

At first, Dzakovic trusted that the FAA, shocked by his reports, wouldpromptly correct the situation. Yet by 1997, Dzakovic had still seen noimprovement. In fact, his FAA supervisors seemed irritated by hisfindings and sought to undermine the team. For example, the agencybegan notifying airports in advance of an “undercover” test by the RedTeam, thus undermining the whole program. After conferring withcolleagues, Dzakovic confirmed that the deplorable quality of securityhad remained essentially unchanged since 1990.

This was the final straw. Dzakovic began a tireless effort to convince

the FAA to fix its most egregious security problems. Dzakovic workedup the chain of command. In 1998, after his direct supervisors failedto act on his complaints, Dzakovic sent a 13-page memo to theAdministrator of FAA. The Administrator never responded. He alsosent a memo detailing the FAA’s inaction to the Secretary ofTransportation. The Secretary forwarded the memo on to FAA offi-cials, “noting that these are some concerns you might want to lookinto,” said Dzakovic, paraphrasing the Secretary’s response, but therewas no follow up on the Secretary’s part. Dzakovic subsequently wroteto the Department of Transportation’s Office of the Inspector General(“DOT IG”) (where he was told by a senior manager that “unless yougive me a dead body and a smoking gun, there is nothing I can doagainst the managers in FAA”), and the General Accounting Office.Dzakovic then turned to Congress. He even personally delivered avideotape documenting numerous security breaches at Logan airportto Sen. John Kerry’s office in May 2001. Dzakovic’s efforts were con-sistently met with either protests of powerlessness against the FAA orcomplete indifference. Nevertheless, he continued to meet withmembers of Congress to brief them on the situation; his last meetingon Capitol Hill was just a month before 9/11.

After 9/11, Congress and the general public now shared Dzakovic’soutrage. Dzakovic’s quest for FAA accountability for its security lapsescontinued. Within a month of 9/11, Dzakovic filed a WhistleblowerDisclosure with the Office of Special Counsel (OSC). Dzakovic couldhave filed his report anonymously, and thus have avoided any potentialrepercussions. He declined. Dzakovic said, “they told me it wouldcarry more weight if I had my name attached to it. At this point, with3,000 people dead, I thought, what am I going to lose in comparison towhat they lost? So I said go ahead, put my name on it.”



National Security Whistleblowers Who Are Covered by the WhistleblowerProtection Act Receive Little Real Protection

Even those few national security whistle-blowers who are lucky enough to be cov-ered by the WPA often get no protectionin fact. Congress has forcefully andrepeatedly stated its intent that the WPAis meant to actually protect whistleblow-ers, to encourage reporting of waste,fraud, abuse, and illegality. The MSPB –the administrative body that adjudicateswhistleblower claims – and the FederalCircuit – the only federal court to whichwhistleblowers can turn when they losebefore the MSPB – have consistently dis-regarded the will of Congress, interpret-ing the WPA as narrowly as possible anderecting barriers for whistleblowers thatCongress never intended. Congress hasalready amended the WPA at least twiceto correct Federal Circuit narrowinginterpretations of the law.

“Any disclosure” does not mean anydisclosure. The WPA is supposed toprotect any disclosure a whistleblower“reasonably believe[s]” is a violation oflaw or abuse of authority.27 However, the

Federal Circuit has interpreted the WPAto exempt certain kinds of disclosures.For example, the Federal Circuit hasruled that disclosures to a supervisorabout a supervisor’s own wrongdoingare not protected because “the purposeof the [WPA] is to encourage disclosuresthat are likely to remedy the wrong [and]the wrongdoer is not such a person.”

28

Because of this ruling, an employee whofirst seeks to address a problem bygoing through the chain if command,rather than directly to an InspectorGeneral or to Congress, is not protectedunder this interpretation of the WPA.Similarly, the court has decided thatwhistleblowers who have a duty toreport wrongdoing are not protected bythe WPA for disclosures made in thecourse of their job. The court has alsoruled that there is no WPA protection ifthe whistleblower is not the first to dis-close a particular problem.

Unreasonable standards of proof. TheFederal Circuit has decided that whistle-

blowers can win WPA claims only if thereis “irrefragable proof” of retaliation. Thedictionary definition of “irrefragable” is“irrefutable.” Thus, an agency is pre-sumed to act in good faith unless thewhistleblower presents irrefutable proof– an impossible standard to meet.

Federal Circuit monopoly over whistle-blower cases. The Federal Circuit Courtof Appeals has a reputation for beinghostile to whistleblowers, yet it is the onlycourt that hears WPA appeals.Whistleblowers cannot appeal MSPBlosses anywhere else.

No jury trials. Whistleblowers with WPAclaims cannot present their stories to ajury of their peers. WPA claims are gener-ally adjudicated by administrative judges.

No real penalties for retaliating againstwhistleblowers. There are no civil or crimi-nal penalties for retaliating against whistle-blowers in violation of the WPA. Often,retaliators do not even get reprimanded.

Shortly after filing his report, and without any sort of an explanation,Dzakovic was removed as Team Leader and promptly relieved of all RedTeam duties and responsibilities. His bosses told him, “when we wantyou to do something, we’ll let you know.” Out of boredom, Dzakovic vol-unteered to help colleagues with tasks such as assembling binders, ori-entation packets, and other clerical chores. This sort of menial work isall Dzakovic has done since he was removed from the Red Team.

Why does Dzakovic remain with the TSA? Partly out of necessity: aftertwenty-five years of government service, Dzakovic would lose hisretirement benefits if he were to quit. But he also feels compelled bya sense of duty. He explained, “In my federal career, I had to take anoath of office three different times, and in that oath, we are sworn toprotect the Constitution, and we are sworn to protect this country fromall enemies, foreign and domestic. I took my oath of office seriously,and I still do.”

The IG completed a report about Dzakovic’s whistleblower allegationsin 2003. According to him, the report reached the baffling conclusionthat, while his allegations were correct and the Red Team had uncov-ered systemic problems, no one was responsible. Dzakovic was evenmore troubled when he saw that none of the materials he had sup-

plied to the IG – documentation, written statements, testimony fromwitnesses – had been incorporated into the report. The report hasnever been made public, however, despite its being unclassified.

In the face of such tremendous discouragement, Dzakovic continuesto demand FAA accountability for the tragedy of 9/11 and to try toimprove aviation security today. On May 22, 2003 he appeared beforethe 9/11 Commission to testify as a witness. Upon the release of theCommission’s report, he joined with fellow government whistleblow-ers in a press conference to criticize the report for its failure to assignblame to any government officials.

Dzakovic still receives a wide variety of reactions to his whistleblowingactivities. He said, “Some people despise me. But I’ve actually had anumber of people, people who I’ve never even met before, they actu-ally shook my hand and congratulated me for what I did.” He isunsure, though, whether his experiences would encourage other gov-ernment employees to blow the whistle. “There are a lot of decentpeople in this field, but they are afraid, because of the way our govern-ment operates,” Dzakovic said. “Given how many billions of dollars wehave lost, and the lives lost, it is mind-boggling that Congress doesn’tdo more to protect whistleblowers.”

DISAVOWED 19

Whistleblowers cannot count on theirconstitutional rights to protect them fromretaliation. The Supreme Court has heldthat the First Amendment rights of gov-ernment employees are more limitedthan those of ordinary citizens.29 But thatis not the only obstacle. Another compli-cation is that it is difficult to tell inadvance whether a particular disclosurewill be protected.

The Supreme Court has held that onlyemployee speech on a matter of “publicconcern” is entitled to First Amendmentprotection.30 It is not always clearwhether speech is about a topic impor-tant enough to be of public concern.

Determining that speech relates to amatter of public concern is not the end ofthe matter. The Supreme Court requiresthat courts then go on to balance thevalue of the employee’s speech againstthe government’s interest in censoringspeech, for example to maintain officediscipline. This standard is very subjec-tive. Only if the court decides that theemployee’s speech is more importantwill the employee enjoy the benefit ofFirst Amendment protection.

Even if a whistleblower’s speech is pro-tected by the First Amendment, courtswill not grant relief for retaliation unlessthe whistleblower can show that there isa substantial relationship between herdisclosure and an adverse employmentaction.31 If the whistleblower can makethis showing, then the burden shifts tothe employer to demonstrate that itwould have taken the same employmentaction even in the absence of the whistle-blowing activity. Only if the government isunable to make this showing will thewhistleblower prevail.

Unfortunately, in 2006 the SupremeCourt added a new wrinkle to the law

that makes it even harder for whistle-blowers to claim First Amendment pro-tection. In Garcetti v. Ceballos, an attorneyin the Los Angeles County DistrictAttorney’s Office believed that a deputysheriff had misstated the facts in order tosecure a search warrant. He argued thathis office should dismiss a pending crim-inal case because of the sheriff’s miscon-duct.32 Instead of dropping the case, theattorney’s employers retaliated againsthim. He sued, arguing his FirstAmendment rights had been violated.

The Court rejected the attorney’s claim. Itwrote that “[w]hen public employeesmake statements pursuant to their offi-cial duties, the employees are not speak-ing as citizens for First Amendment pur-poses, and the Constitution does notinsulate their communications fromemployer discipline.” Because it was partof the attorney’s job description to reportmisconduct, he was ineligible for FirstAmendment protection for doing so.

National Security Whistleblowers Receive Uncertain Protection from the First Amendment


National security and intelligence agencies should not be trusted to police them-selves and should not be able to retaliate against whistleblowers without fear ofbeing held accountable. Congress should act immediately to grant national securitywhistleblowers meaningful protections, to fix the Whistleblower Protection Act, andto actively oversee and limit the ability of executive agencies to misuse nationalsecurity as a pretext to silence whistleblowers.

whistleblowing should be protected andshould have an independent forum – acourt or truly independent administrativebody – that will review the security clear-ance action.

ªProtect whistleblowers against retal-iatory investigations. While employeeswho suffer illegal discrimination enjoyprotection against retaliatory investiga-tions, whistleblowers do not have suchprotection. Prohibiting retaliatory investi-gations is crucial because such investi-gations are usually the first step.

ªRequire national security and intelli-gence agencies to give their employeesguidance on how to properly make awhistleblower complaint involving clas-sified information. Federal employeesand contractors working in national secu-rity shouldn’t have to become experts inthe intricacies of whistleblower protectionlaws in order to make a good faith com-plaint and receive protection from retalia-tion. Agencies should be required to pro-vide the proper guidance to their employ-ees and contractors so they will knowhow to report their complaints within thelaw. Employees should also be able toreceive confidential advice on how toreport waste, misconduct or abuse thatthreatens our national security so theycan make an informed decision regardingwhether and how to make a complaint.

ªLimit the government’s ability to usesecrecy as a weapon to defeat whistle-blower retaliation cases – particularlythe state secrets privilege. In most casesthe information national security whistle-blowers report reveals agency failures and

misconduct that negatively impact ournational security, but the government hasbeen increasingly relying on the statesecrets privilege to suppress whistleblow-er lawsuits. Hiding the waste, misconductand abuse that hinders the ability of theseagencies to fulfill their important missionsdoes not protect the national security.Congress should neutralize the govern-ment’s use of the state secrets privilege toensure that problems within these agen-cies are exposed and corrected.

FIX THE WPA

ªRestore a reasonable definition of“any disclosure” and impose a normalstandard of proof. The plain language ofthe WPA extends protection for “any dis-closure” regardless of the setting of thedisclosure, the form of the disclosure orthe person to whom the disclosure ismade, but hostile case law from theFederal Circuit has bent the definitions ofcritical terms within the WPA to createunreasonable hurdles, frustrating thisclear legislative intent. Whistleblowersshould not have to face unreasonableexpectations and impossible evidentiaryburdens. Whistleblowers should be pro-tected for any disclosure, and be able toovercome the presumption that govern-ment acts lawfully with “substantial evi-dence” of retaliation.

ªNo penalty for talking to the boss orfellow employees. Disclosures of wrong-doing should be covered regardless ofwhether those disclosures were made toa supervisor or colleague.

ªNo penalty for being the second orthird person to disclose the wrongdoing.There should be no rule that a whistle-blower must be the first person to everdisclose the scandal in order to receiveprotection under the WPA. Whistleblowersshould be protected regardless of whetherthe whistleblower was the first, third, ortenth person to disclose the wrongdoing.

Recommendations

PROTECT WHISTLEBLOWERS INNATIONAL SECURITY AGENCIES FROMRETALIATION

Federal employees and contractorsworking in law enforcement, intelligenceand homeland security are our frontlineprotection against threats to our nationalsecurity and they need and deserve theright to say something when they seesomething that impairs the efficient andeffective operation of their agencies.Congress should grant meaningfulwhistleblower protection to all employ-ees and contractors working for ournational security agencies.

ªProtect whistleblowers from retalia-tion for disclosing classified informationto Members of Congress and othersauthorized to receive classified informa-tion. By virtue of their election to officeeach Member of Congress has the rightto receive information about the function-ing of our government. Whistleblowersshould safely be able to disclose anyinformation to a Member of Congress orto an agency Inspector General withoutfear of retaliation and without the agencybeing tipped off about the whistleblower’scomplaint. National security whistle-blowers should be able to turn to a courtor an independent agency body if they areretaliated against for making any disclo-sures to IGs or Congress.

ªProtect whistleblowers from securityclearance-related retaliation. Securityclearance retaliation should be flatly pro-hibited. Whistleblowers who believe theagency is revoking or suspending a secu-rity clearance in retaliation for good-faith

DISAVOWED 21

ªCodify the anti-gag provision.Government agencies should be bannedfrom implementing or enforcing anynondisclosure policy, form or agreementthat does not contain specified languagepreserving open government statutessuch as the WPA, the MilitaryWhistleblower Protection Act, and theLloyd Lafollette Act.

ªTime limits and jury trials where gov-ernment watchdog does not act.Whistleblowers should not have to relysolely on the OSC or IG to investigate aretaliation claim. There should be strictdeadlines on how long OSC or the IG hasto fully investigate a whistleblower’scomplaint and correct the problem. If theagency watchdog does not act in a cer-tain period of time, the whistleblowershould be able to file a lawsuit (and seeka jury trial) to address the problem. Thisis the kind of system already in place todeal with discrimination claims.

ªGet rid of the Federal Circuit monop-oly over whistleblower claims. Case lawfrom the Federal Circuit Court of Appealshas gutted the protections Congressintended to give federal employees whomake good faith efforts to report waste,fraud, abuse and misconduct in govern-ment. Congress should break theFederal Circuit monopoly.

Improve the IG process and make IGsmore independent from the agenciesthey investigate. Agency InspectorsGeneral have proven themselves ineffec-tive defenders of whistleblower rights.Even where retaliation is found throughan IG investigation, it is often too little andtoo late to help a whistleblower who findsher career in tatters after making a goodfaith complaint. Congress should exer-cise its oversight authority and requirethe Inspectors General from the federallaw enforcement, intelligence, andhomeland security agencies to reportwhen whistleblower complaints aremade, what action has been taken to stopthe retaliation, and whether disciplinaryaction has been taken against thosefound to be retaliating against whistle-blowers. Congress should have fullaccess to IG investigative files to make an

independent determination that IG con-clusions regarding whistleblower retalia-tion are consistent with the facts and notcolored by their allegiance to the agen-cies they work with.

On March 15, 2007 the U.S. House ofRepresentatives approved by a vote of331-94 the Whistleblower ProtectionEnhancement Act of 2007 (H.R. 985), acomprehensive whistleblower protectionreform bill that would implement manyof these recommendations. The Senatehas an opportunity to improve upon theHouse bill by incorporating provisionsfrom H.R. 985 into the Federal EmployeeProtection of Disclosure Act (S. 274),which was reintroduced in the Senatewith strong bi-partisan support onJanuary 11, 2007. Polls show theAmerican public overwhelmingly sup-ports congressional action to institutestronger laws protecting governmentemployees who report waste or corrup-tion. Those conscientious employeesworking within our law enforcement,intelligence and homeland securityagencies are doing their best to protectour national security, and they deservethe best whistleblower protectionCongress can give them.


1 5 U.S.C. § 2302(b)(8)(A).2 5 U.S.C. § 2302(a)(2)(C)(ii)-(iii).3 Project on Government Oversight (POGO) Report, “Homeland and National SecurityWhistleblower Protections: The Unfinished Agenda,” April 28, 2005, at 8. Available athttp://www.pogo.org/m/gp/wbr2005/WBR-04282005.pdf.4 10 U.S.C. § 1034. 5 5 U.S.C. § 2303(a).6 See, e.g., 18 U.S.C. § 793(d); 18 U.S.C. § 793(e); 18 U.S.C. § 798(a).7 5 U.S.C. § 2302(b)(8)(A)-(B).8 5 U.S.C. App. 3, §8H(a)(1)(A).9 McGrain v. Daugherty, 273 U.S. 135, 175 (1927).10 See Louis Fisher, “National Security Whistleblowers,” CRS Report for Congress,Dec. 30, 2005.11 5 U.S.C. § 2302(b)(8) (“This subsection shall not be construed to authorize the with-holding of information from the Congress or the taking of any personnel actionagainst an employee who discloses information to the Congress.”)12 5 U.S.C. § 7211.13 Pub.L. 105-277, Title VII, § 701(b), Oct. 20, 1998.14 Press Release, Sen. Patrick Leahy, “Leahy Whistleblower Measure Advances inSenate,” (Oct. 10, 2002), available athttp://leahy.senate.gov/press/200210/101002a.html.15 Press Release, Sen. Chuck Grassley, “Grassley Works To Provide WhistleblowerProtections To Legislative Branch Employees,” (Feb. 7, 2007), available at http://grass-ley.senate.gov/index.cfm?FuseAction=PressReleases.Detail&PressRelease_id=5266&Month=2.16 Whistleblower Protection Act of 2007, H.R. 985, 110th Congress (2007), available athttp://thomas.loc.gov/cgi-bin/query/C?r110:./temp/~r110lwfM87.17 Id.18 Id.19 Id.20 Id.21 See 5 U.S.C. § 2302(a)(2)(A) (security clearance actions not listed as prohibited per-sonnel actions); see also Heese v. Dep’t of State, 217 F.3d 1372 (Fed. Cir. 2000) (findingsecurity clearance retaliation unprotected under the WPA).22 Id.23 War of the Worlds, Wall Street Journal, July 18, 2005 at A12.24 Remarks Before the Nat’l Comm. on Terrorist Attacks upon the United States (9/11Commission), May 22, 2003, available at http:// www.9-11commission.gov/archive/hearing2/9-11Commission_Hearing_2003-05-22.htm#panel_two.25 Secrets Not Worth Keeping: The Courts and Classified Information, Washington Post,Feb. 15, 1989 at A25.26 The 9/11 Commission Report, July 22, 2004, available at http://www.9-11commis-sion.gov/report/911Report.pdf.27 5 U.S.C. §2302 (b)(8)(A).28 Huffman v. Office of Personnel Management, 263 F.3d 1341, 1350 (Fed. Cir. 2001)29 Pickering v. Board of Education, 391 U.S. 563 (1968)30 Id.31 Mt. Heathly City School District Board of Education v. Doyle, 429 US 274 (1977).32 Garcetti v. Ceballos, 126 S. Ct. 1951 (2006).

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