Defending the Constitution vs. Pledge to Government Secrecy

In the debate on reducing the national debt, members of Congress have focused on two options–tax increases and entitlement cuts—both considered unhelpful to restarting a stalled economy. Congress seemingly has forgotten that it has another option for reducing the debt: eliminating waste, fraud and corruption in government programs. Perhaps, Congress knows that the success of such a plan would correspond with the effectiveness of whistleblower protections—protections it has been reluctant to provide to the thousands of whistleblowers who hold security clearances.

Insiders are critical to identifying government waste, particularly in agencies, such as the Department of Homeland Security, where much of the information is classified and not available for public review. But, insiders are vulnerable to retaliation from managers embarrassed by their disclosures. The Obama administration has been particularly aggressive toward whistleblowers, launching criminal prosecutions against several of them.

Most Americans would be surprised to know that thousands of federal workers with ordinary jobs–food safety, for example–are required to have security clearances even if they may never handle a classified document. Agencies pay dearly for the necessary background investigations. But, they just can’t seem to pass up the opportunity to give themselves an end run around civil service laws. Steve Kohn, of the National Whistleblowers Center, writes:

A 1989 law was supposed to protect federal employees who expose fraud and misconduct from retaliation. But over the years, these protections have been completely undermined. One loophole gives the government the absolute right to strip employees of their security clearances and fire them, without judicial review. Another bars employees of the National Security Agency and the Central Intelligence Agency from any coverage under the law. And Congress has barred national security whistle-blowers who are fired for exposing wrongdoing from obtaining protection in federal court.

Knowing that they are vulnerable to retaliation, few federal employees are inclined to report wrongdoing. Nevertheless, they are required to report wrongdoing.

Every employee takes an oath or affirmation, required by Article VI of the U.S. Constitution to “support the Constitution.” Since 1884, employees have taken this expanded version of the oath, described in the U.S. Code (Title 5, Chapter 33).

I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

Incredibly, through court decisions and Congressional foot-dragging, civil servants tasked with defending the Constitution are forced to do so with an abridged set of Constitutional protections, particularly with regard to free speech and due process—essential elements for holding a government accountable.

Civilian federal employees also must adhere to the federal code of ethics (Executive Order 12674, as amended). It states, in part:

“Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.”

The code also directs that employees “shall protect and conserve Federal property and shall not use it for other than authorized activities.” This is important because agencies tend to treat classified information as government property, although it’s more accurate to say that a representative government holds information in trust for its citizens.

Sometimes, classified information contains evidence of waste, fraud or corruption, documents abuses of human rights, or it exposes negligent handling of national security. In such cases, classifying the information was illegal. Executive Order 13526 forbids classifying information to hide violations of law, inefficiency, or administrative error or to avoid embarrassing officials.

An employee who encounters classified evidence of wrongdoing therefore is compelled to ask, “Which of the applicable laws has priority?” Agencies provide little or no guidance to employees for dealing with the moral hazard dumped in their laps. Think of it as a ticking black box with protruding wires in several colors. Does one pull the blue wire, the yellow or the red? Pull the wrong one and your career explodes.

If the Executive Branch publicly discusses whistleblowing at all, it acknowledges only the confidentiality obligation as if no other obligations exist. President Obama’s comments about disclosures of classified information attributed to Bradley Manning are illustrative. “We’re a nation of laws!” the President declared. “We don’t let individuals make their own decisions about how the laws operate.” No, the government forces individuals to make their own decisions.

The outcomes of conflagrations involving whistleblowers and their agencies often are vitally important to society as a whole. But, in most cases, the public is a passive observer. Society’s moral burden and fate rest on the whistleblower who must foot the legal costs of holding an agency accountable, gambling the savings of a lifetime on a system where the odds of the winning are about 2%. If the disclosure involves classified information, the government will assert a “state secrets privilege” and instruct courts not to hear evidence against it. In the case of former FBI translator Sibel Edmonds, the government went even further, retroactively classifying information released three years earlier.

“That’s how grotesque the privilege has become,” says Jonathan Turley. Turley, who teaches law at George Washington University, points out that the “state secrets privilege” is not stated in the Constitution or in any statute, but, has the official blessing of the U.S. Supreme Court.

It began…with United States v. Reynolds, which began with a crash of a plane that belonged to the Air Force, but was – resulted in the deaths of three civilian contractors. When their families sued, the government refused to turn over critical information from the crash site. They said to a series of courts, ending in the Supreme Court itself, that that report contained very sensitive national security data and information; that, indeed, American lives and security would be put at risk if it was disclosed.

The Supreme Court fashioned out of Reynolds what we know today as the state secrets privilege, and that privilege allows the government to seek dismissal not just of cases against it, but even cases against third parties where the government can come into a case and say, you just can’t litigate this issue because we have national security interests at stake. (Jonathan Turley)

Years later, when the Reynolds report finally was released, it was “absolutely devoid of sensitive material,” says Turley. “What it was full of was evidence of clear negligence on the part of the government.” Imagine how much negligence one could find in the other documents government classifies—77 million in 2010, alone?

Logically, employee responsibilities assigned by the Constitution should have greater weight than a confidentiality agreement in the way that an order from a division head overrules that of a branch chief. The Constitution is the supreme law of the land. But, that is not the impression created by the court’s decision in U.S. v Reynolds.

In another case, Garcetti v. Ceballo, the Supreme Court gave agencies carte blanche to retaliate against employees who report problems as they conduct their official duties. The majority opinion argued that employees in those situations “are not speaking as citizens for First Amendment purposes.” Actually, those employees are doing something even more important: speaking on behalf of Americans who cannot speak for themselves because they don’t have access to government information.

Issues like these came into play in the case of Thomas Drake, a whistleblower at the National Security Agency. Drake observed problems with a computer system designed for gathering and analyzing intelligence. He believed the government’s decision to adopt that system in lieu of another wasted nearly a billion dollars, violated Constitutional law, and cause critical delays. Drake believes the alternative system could have detected the 9/11 hijackers in time to prevent the attacks.

Drake tried going through administrative channels and working with Congress to get the problems addressed, but government covered them up instead. Drake says, “I was faced with a crisis of conscience. What do I do—remain silent, and complicit, or go to the press?” Drake was working without guidance or a safety net.

He researched the relevant legal statutes and concluded that if he spoke to a reporter about unclassified matters the only risk he ran was losing his job. N.S.A. policy forbids initiating contact with the press. “I get that it’s grounds for ‘We have to let you go,’ ” he says. But he decided that he was willing to lose his job. “This was a violation of everything I knew and believed as an American.”

Imagine Drake’s shock when the government later charged him with ten felonies, including espionage. Critics accused the Department of Justice of overreaching and, indeed, DOJ dropped the felony charges on the eve of trial. Judge Richard Bennett rebuked DOJ for its actions, noting that “Drake had gone through ‘four years of hell’ that a citizen shouldn’t endure.”

J. William Leonard, former director of the Information Security Oversight Office, found the government’s conduct so outrageous that he filed a complaint requesting punishment of NSA and DOJ officials who classified a document he says contained no secrets.” “Now that the Justice Department is seeking to imprison government workers for leaking classified information to the news media, Mr. Leonard said, it is especially critical to make sure that only genuine secrets are protected by law (New York Times).”

In requiring federal employees to “defend” rather than simply adhere to the Constitution, the framers did something rather extraordinary: they deputized every federal employee to apprehend violators. The framers’ efforts are being thwarted, however, through government’s increasing use of the state secrets privilege.

Without the checks on abuses that whistleblowers provide, corruption will grow unabated, making government more costly but less efficient. That would have negative consequences for everything, from public health to national defense to the economy. Congress must get busy and pass a bill restoring due process and free speech rights for whistleblowers. It must include strong reprisal protections for all whistleblowers, including national security whistleblowers. At a 2008 conference on whistleblowing, Steve Kohn summed this up memorably, saying, “Whistleblowers who work for the federal government are entitled not to better whistleblower protections but the best whistleblower protections.” And for everyone’s sake, that can’t come too soon.

Linda Lewis is a policy analyst with degrees in emergency management and geosciences. Her experience includes 13 years as a policy analyst and planner for the U.S. government. During that time, she brought attention to serious deficiencies in government preparedness prior to the disasters that confirmed her analyses. Those included emergency communications (9/11 terrorist attacks), federal assistance (hurricane Katrina) and decision making (Columbia shuttle disaster).

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