By David E. Hubler
Contributor, In Homeland Security
Who is a whistleblower? Should a whistleblower remain anonymous? Are their actions legal or illegal?
Those were some of the questions that several intelligence experts sought to answer at a panel titled “Intelligence Community Whistleblowers: Key Viewpoints.” The event was hosted by the International Association of Intelligence Education, Washington, D.C., Area Chapter at Georgetown University’s School of Continuing Studies.
The panel included Erik Kleinsmith, Associate Vice President for Strategic Relations in Intelligence, National, Homeland and Cybersecurity at AMU. His new book is titled, “Intelligence Operations: Understanding Data, Tools, People and Processes.”
Bradley P. Moss, a partner at the law firm of Mark S. Zaid, opened the discussion by recalling that a majority of whistleblower law was created by Congress in the 1990s and only updated in recent years. “But they never contemplated the situation we currently face,” he said, with political and constitutional tension underlying the current whistleblower complaint.
Intelligence Witness Act Provides Protection for Classified Complaints but Not for Retaliation
Moss said the Intelligence Community Witness Protection Act of 1998 (ICWPA) provides a secure mechanism for whistleblowers to take classified complaints to the intelligence community. But the law does not protect whistleblowers against retaliation. “It does provide protection against criminal charges. It’s just a means to ensure that you have submitted [complaints] properly,” he said.
John Kostyack, Executive Director of the National Whistleblower Center, acknowledged that improvements to the ICWPA in 2014 included some administrative protections for whistleblowers “assuming you went through the proper channels.”
He added, however, whistleblowers still have “no right to judicial reviews, no right for a lawyer to have access to the classified information at issue.” The administrative protections added in 2014 were “just first steps” and still need to be improved, he added.
Whistleblowers Who Talk to an IG Have a Right to Identity Confidentiality
Kostyack defended whistleblower anonymity by citing the Privacy Act, the Social Security Act and the Inspector General Act. The latter “specifically says that whistleblowers who talk to an Inspector General have a right to keep their identity confidential,” he said.
He noted too, however, that in “the long history of whistleblowing,” the result often is “severe retaliation” against the whistleblower. “The best strategy against retaliation is confidentiality,” Kostyack said.
Kleinsmith spoke of his involvement in a whistleblower case involving the Defense Department. As Chief of Intelligence for what was then called the Army’s Land Information Warfare Activity (LIWA), he was the lead military member of an analytical team known as Able Danger.
Able Danger Was Using Data Mining to Identify and Hunt al-Qaeda Prior to 9/11
“We were using data mining to identify and hunt al-Qaeda prior to 9/11,” he explained. It was the first data mining operation in Defense Department history. The accumulated data showed a significant al-Qaeda presence in the U.S., including the New Jersey cell that the 9/11 hijackers and its leader Mohammed Atta belonged to.
U.S. regulations required that any incidental collection of information on U.S. persons could be stored for no more than 90 days. As the lead, Kleinsmith was required to delete the data, including that which might have prevented 9/11.
In September 2005, Kleinsmith was called to testify before the Senate Judiciary Committee about Able Danger. He was there also to support his colleague Tony Shafer’s claim that the team had identified the 9/11 hijackers years before the actual attacks. Shaffer also claimed that the DOD retaliated against him for speaking out publicly about the case.
Kleinsmith said his biggest takeaway from the entire experience was that “the most important part of a whistleblower is your credibility. If you go out with a personal ax [to grind] or a political agenda, your credibility is already incredibly at risk.”
Whistleblowers Must Take Responsibility for What They Say
“One of the decisions you have to make as a whistleblower going forward is you must take responsibility for what you’re saying, especially if it’s an accusation or something like that,” Kleinsmith said. “In an age of hyper-politics, you have to expect you’re going to be attacked no matter what stance you take.”
When it comes to whistleblowers, “there’s a tendency to confuse what the law is and what people think it ought to be,” said W. George Jameson, President of the Council on Intelligence Issues, with over 30 years of experience in the intelligence community.
“Secondly,” he added, “there’s almost always going to be confusion over facts because each side comes in thinking they know what the facts are and allege them.” That’s something that the investigators have to sort through and determine their veracity, he said.
Jameson was asked about the anonymity of the whistleblower whose report prompted the Impeachment hearings. “The identity of the whistleblower is really irrelevant,” he said. “By all accounts, everything that was spelled out in the whistleblower complaint has been repeated [or] corroborated by one of the witnesses who’s gone public. So why do you need the whistleblower? That’s just political.”
Summing up, Jameson said: “The existence of a process that has integrity that can protect the sources and methods is what helps protect the whistleblower and the accused. People want the system to work.”