Thomas Drake, a former CIA analyst and National Security
Agency (NSA) manager who tried to take on his bosses at NSA and proved, beyond
a shadow of a spy agency, that whistleblowers are not welcome anywhere around
Washington. What happened to Drake
was an indication that, in spite of the many “Whistleblower Protection” laws
that have been made into policy, being a whistleblower is not a protected
enterprise.
There is quite a bit of popular confusion about Whistleblowers. Almost anyone can claim to be one, and
very few of those who claim it, actually are. L. Paige Whitaker, Legislative Attorney, American Law
Division, wrote a report for Congress on what the Whistleblower Protection Act
actually says. Though it was amended
in 2010, after the analysis was written, most of the added “protections” are
cosmetic. My readers would do well
to read an analysis of the amendment, since it is clearly intended to right a
number of wrongs in the way the Act was administered in the Federal
government. What any analysis
shows, is the lack of protection for anyone claiming the status.
The Intelligence Community, where Snowden and Drake were
from, is not covered by the Act. “Moreover, the statute does not apply to
federal workers employed by the Postal Service or the Postal Rate Commission,
the Government Accountability Office, the Federal Bureau of Investigation, the
Central Intelligence Agency, the Defense Intelligence Agency, the National
Imagery and Mapping Agency, the
National Security Agency, and any other executive entity that the President
determines primarily conducts foreign intelligence or counter-intelligence
activities. [page CR-2]”. The 2012
amendment does not change the principle, but changed the Agency names to reflect
those currently used.
THINTHREAD was Drake’s project and he thought it worked
pretty well. He offered a cheaper
and easier way to do something that is specifically described in a redacted
portion a classified Inspector General report, leaving a person to speculate,
“NSA enhanced digital network exploitation systems… [in a way that was]
“inefficiently using resources” and …“may be developing a less capable
long-term digital network exploitation solution that will take longer and cost
significantly more to develop.”
So, it appears, Drake was right about his opinion that THINTHREAD was a
better product, and cheaper than the alternatives. Being right does not usually win out. Drake was not loved for his opinions,
but what he was really not loved for, was his way of getting them out into the
public domain. This is where most
whistleblowers go wrong.
The Government Accountability Project says “Left with no
other options, Drake began legally communicating with a Baltimore
Sun reporter about Trailblazer – never sharing any classified
information…. The Sun published a series of articles exposing the $1.2
billion debacle.”
This is where “right” gets a little cloudy, since a
government employee, with the kinds of security clearances Drake had, cannot
give any information to the press without having his work approved for public
release. The agreement doesn’t say
anything about “if you have no other choice”. The employee does not get to
decide that something is not classified;
the government does a review to decide if it is, or isn’t. The dilemma for Drake, of course, is
allowing the government to review what the author is about to send over to those
reporters. Most whistleblowers
don’t like sending it to anyone to review, and I can’t blame them. Nobody in his right mind will approve
the release of something that makes them look bad, especially something they
will then read about in a newspaper.
It doesn’t allow for the public disclosure of classified
national defense information for the purposes of identifying a wrong. It protects people who disclose
evidence of a number of types of activities to a Special Council or Inspector
General and it applies only to employees in “covered positions”. For those who are, or were, in
Intelligence, that does not mean an undercover person. It means a position covered under the
Act.
Generally, current employees, former employees, or
applicants for employment to positions in the executive branch of government in
both the competitive and the excepted service, as well as positions in the
Senior Executive Service, are considered covered employees. However, those
positions that are excepted from the competitive service because of their
“confidential, policy-determining, policy- making, or policy-advocating
character,” and any positions exempted by the President based on a
determination that it is necessary and warranted by conditions of good
administration, are not protected by the whistleblower statute.
Neither Snowden
nor Drake were covered employees by this definition, so try as they might, they
cannot be Whistleblowers. That
doesn’t mean that shouldn’t have a way to be heard. If people actually got this kind of protection, we
would almost never see a whistleblower in the press. Agencies need to look inside themselves to see why we
do. If nobody listens to the politically
sticky things that are brought to their attention, bureaucrats eventually will
stifle any possibility of correcting their own problems. They might also give outlets to people
like Snowden and Bradley Manning who chose a path that will cause us great
harm, as a country, if we don’t.
You can read more about people who give up secrets in Keeping Secrets, The White House, the
Military and Business Leaks that Threaten our National Security
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