National security vs. whistle-blowing

Protections erode for those who allege governmental wrongdoing - especially if going public risks state secrets.

Former intelligence officer Russ Tice wants to tell Congress about what he believes were illegal actions undertaken by the National Security Agency in its highly sophisticated eavesdropping programs.

But he can't. He's been warned by the NSA that the information is so highly classified that even members of the House and Senate Intelligence Committees - who are charged with overseeing the work of the intelligence community - don't have clearance to hear about them. If Mr. Tice talks at the hearings early next month, he could face criminal prosecution.

Tice is one of an increasing number of whistle-blowers in the national security realm who have come forth and found themselves in a bind.

According to the Government Accountability Office, the number of government employees coming forward to report allegations of wrongdoing within the government increased 46 percent in the aftermath of the 9/11 attacks. And surveys of government employees, particularly in the intelligence agencies and the Defense Department, show the terror attacks prompted an increase in concern about the competency of bureaucracy at all levels as well as a decline in morale.

So more employees have come forward. But new secrecy regulations and a series of judicial rulings have threatened the limited legal protections that are supposed to prevent retaliation against such whistle-blowers - even if they believe what they want to report is essential to national security.

"The laws on the books give the impression that people have somewhere to turn and they'll be protected, but they don't," says Beth Daley, an investigator for the Project on Government Oversight (POGO), a nonprofit organization dedicated to government accountability. "There really isn't a functioning whistle-blower protection program right now."

The Whistleblower Protection Act of 1989 and the Intelligence Community Whistleblower Protection Act of 1998 set out mechanisms for employees to report wrongdoing if they "reasonably believe" there's misconduct. Most whistle-blowers can go to the Merit Systems Protection Board (MSPB) and the US Office of Special Counsel. Those in the intelligence communities are supposed to go to their agencies' inspectors general or members of the congressional Intelligence Committees.

"Congress needs access to not only the information an agency head is willing to release, but things from the middle and the bottom, and that's whistle-blowing," says Louis Fisher, a senior specialist in the separation of powers at the Congressional Research Service. "In a time of war and emergencies, it's particularly important because when you concentrate power, the chance of abuse and mistakes increases."

Yet some analysts believe it's vital that the executive branch have the prerogative to keep some information secret. "There are some ... programs that are so sensitive that distribution of information should be very limited. It's vital to our national security," says Peter Brookes, a senior fellow for national security at the Heritage Foundation, a conservative think tank in Washington. "But I also believe there should be some oversight."

In 1999, a federal court ruled that employees can be protected from retaliation only if there is irrefutable evidence of wrongdoing - a standard that government accountability experts say is extremely difficult to meet. Prior to the ruling, 36 percent of whistle-blower cases that went to the MSPB won on the merits, according to the Government Accountability Project, another nonprofit government watchdog group. Since that 1999 ruling, only 7 percent have prevailed. Court rulings have also narrowed the scope of who qualifies as a whistle-blower and limited the MSPB's ability to remedy certain forms of retaliation.

The combination has stripped many employees intent on exposing wrongdoing of their congressionally promised protections, according to Sibel Edmonds, founder of the National Security Whistleblowers Coalition, a group of more than 100 employees from the nation's intelligence and defense agencies.

"These are experienced veterans who've been working for these agencies for a long time," says Ms. Edmonds. "The moment they reported wrongdoing, their whole lives changed. They became pariahs overnight."

Most lost their security clearance, were demoted, or lost their jobs altogether. Edmonds has firsthand experience. She was a language specialist in the FBI's Washington Field Office. After she reported another translator was omitting information vital to national security, she was fired. Her case is currently in the courts, but the Bush administration has invoked the state's secrets privilege, which gives it the right to withhold all information on the case from the courts because of national security.

The FBI has declined comment on the case since it is still pending, but in an e-mail FBI spokesman Bill Carter wrote: "FBI Director Mueller has expressed his firm commitment to the protection of employees who report organizational wrongdoing."

Still, as a result of heightened concerns about terrorism, the Bush administration has significantly increased the amount of government material that is, or could be, classified. For instance, the Department of Homeland Security has a regulation that forbids disclosure of any document to the public that is marked "For Official Use Only," or any document that could be labeled that way. An employee who releases such information can be prosecuted.