Hill mulls new whistleblower protections

WASHINGTON, Feb. 15 (UPI) -- A parade of national security whistleblowers Tuesday told a congressional panel their careers were ruined by their decisions to come forward with information about government malfeasance or abuse of law.

All saw their security clearances revoked, which essentially ended their careers, and all believed it a retribution scheme meant to scare other whistleblowers into silence.

On Tuesday, Sen. Frank Lautenberg, D-N.J., introduced a bill that would allow whistleblowers to pursue their claims of retribution in civil court rather than subjecting them to the federal government's arbitration system. Since 1999, according to Lautenberg, just two of 30 whistleblowers have won their cases before the Merit Systems Protection Board. Currently, only the federal agency exposed -- and potentially embarrassed -- by the whistleblowers currently has the power to bring disciplinary action against a manager that punishes a whistleblower for coming forward.

Under the Lautenberg bill, whistleblowers whose security clearances are revoked would be able to sue in court for damages; it would be up to the federal government to determine if the security clearance would be reinstated.

"Because of the sensitivity of the information they work on, they don't have the same protection as other civil service employees. They aren't allowed to speak freely to Congress, aren't the subjects of the already weak Whistleblower Protection Act of 1994, and have little recourse from third parties ostensibly established to hear their claims," said Rep. Dennis Kucinich, D-OH. "So who gets to hear their claims? Well, it's left to the employing agencies who are the ones who are often exposed, who then turn around and act as judge and jury when national whistleblowers come forward with an allegation. This should be the first place for recourse, not the first and the last."

Beth Daley, senior investigator of the Project on Government Oversight, said since the 9-11 terrorist attacks, the government has drawn an even tighter noose of secrecy over its actions, and more whistleblowers are coming forward than ever before. But the rewards are few.

"Even when a whistleblower is right, they are rarely compensated for the loss of their job, their income or their security clearance," Daley said. "As a result, there are few incentives for employees to come forward."

To illustrate that case, the House Government Reform committee assembled a panel of witnesses who all say they were punished after speaking out.

Samuel Provance, an Army intelligence computer systems administrator who worked the nightshift at the notorious Abu Ghraib prison during the abuse, was demoted from sergeant to specialist after he was identified as a witness in the Taguba report on the abuse. Provance was also interviewed by Maj. Gen. George R. Fay for a related investigation, a meeting he said resulted in a threat of punishment.

Fay's report, issued in August 2004, sharply criticized American commanders in Iraq for failing to make clear to soldiers what kind of interrogation techniques and treatment were allowed for prisoners at Abu Ghraib.

At his May interview, Provance offered information he had gathered about interrogation practices at Abu Ghraib from his stint there, including his observations from one interrogation for which he was present.

"(Fay) then said he would recommend administration action against me for not reporting what I knew sooner than the investigation. He said if I had reported what I knew sooner, I could have actually prevented the scandal," Provance said.

Provance then testified in the court martial of one of the accused soldiers. Two days later, Provance was ordered by his commander to sign an agreement forbidding him to discuss the Abu Ghraib scandal publicly.

"I was convinced that the order was issued because I was speaking honestly and candidly about what happened and because of concern that the information I was providing would be circulated in the media and to Congress," Provance told the House Government Reform Subcommittee on National Security, Emerging Threats and International Relations.

Two days after that, he was interviewed by ABC News, and then by Sen. Lindsay Graham, R-S.C. By May 21, Provance's top-secret clearance was suspended. In July, he was reduced in rank to specialist for "disobeying a direct order."

"I am still proud to be a soldier and to wear the uniform off the United States Army. But I am concerned about what the Army is becoming," he said.

Army Lt. Col. Anthony Shaffer, a 22-year intelligence officer, believes he was targeted by the Defense Intelligence Agency for telling the 9-11 Commission members about Able Danger, a military intelligence program begun in 1999 that was tracking the al-Qaida organization. Shaffer said he briefed the commission staff director on Able Danger "and the failures of DIA and other Defense Department elements to maximize the intelligence and promise of the project" in October 2003, when he was serving in Afghanistan.

According to Shaffer, three times prior to the 9-11 terrorist attacks, he tried to help the FBI arrange briefings with U.S. Special Operations Command to hand off the information and three times the meetings were cancelled by SOCOM for legal reasons.

DIA revoked Shaffer's security clearance in September 2005, 48 hours prior to his scheduled testimony before the Senate Judiciary Committee.

According to Shaffer, DIA sifted through his background and trumped up three charges to justify the security clearance revocation. They included charges that he received a major military medal unlawfully; that he had misused a government telephone to the tune of $67; and that he had filed and been approved for a voucher for $180 mileage on his car when he traveled to and from Command and General Staff College. According to Shaffer, DIA said the voucher was illegal because he was authorized to attend the school "at no expense to the government."

"The Army has taken no punitive legal action against me on these allegations and I was promoted as scheduled to lieutenant colonel. DIA security leadership continues to live in some parallel universe in which what they decree is so, no matter the facts of a given issue," said Shaffer.

Michael German, a former special agent with FBI with 14 years of experience, was retaliated against after he reported that another counterterrorism agent had illegally recorded an August 2002 meeting during an investigation.

"About this time the unit chief of the undercover unit at headquarters told his staff that I would never work undercover again," German told the committee.

A subsequent inspector general investigation confirmed his complaint, saying the FBI had falsified and backdated records to cover up their failure to investigate German's allegation, and that German had been punished for reporting official misconduct within the FBI. The same report "heaps praise on the FBI supervisors and inspectors who were responsible for the misconduct," German said.

The FBI launched an investigation into the entire situation -- not just the illegal recording and the cover up, but also into German.

"The Inspection Division was not trying to discover what went wrong in this investigation, they were trying to find something they could use against me," he said. The office found nothing, according to German, but his case is still in adjudication at the FBI.

"This is not a question of balancing security interests against liberty interests. Neither our security nor our civil liberties are protected when FBI managers can so easily cover up misconduct," he said.

Russell Tice, a veteran National Security Agency intelligence analyst, lost his security clearance and was subsequently fired after he reported suspicions that a co-worker, then at the Defense Intelligence Agency, was involved in espionage. His concerns were dismissed. Later, Tice reiterated his allegation. Although he had already passed a routine psychological review, he was ordered to take an emergency exam. He was declared to be paranoid and lost his clearance. He was then removed from his job and assigned to work in "a remote agency warehouse where I was forced to perform backbreaking labor."

After a series of what he believes to be retaliatory measures, he wrote 132 letters to Congress complaining of NSA abuses, and spoke to congressional staff about his experience. He was then fired.

"The current system of whistleblower protections in the national security agencies is worse than nonexistent because it gives those that would report wrongdoing a false sense of security, believing the laws that exist will protect them. The truth is that they will not," Tice said. "When all avenues for protected reporting of waste, fraud and abuse are closed or will ensure retaliation, people are either forced to remain quiet or resort to drastic measures such as going directly to the press."