The government is routinely retaliating against government employees who uncover weaknesses in our ability to prevent terrorist attacks or protect the public's safety. Since September 11 th , 50 percent more government workers annually are seeking protection against retaliation for blowing the whistle on ""allegations of substantial and specific dangers to public health and safety and national security concerns."" 1
In particular, there has been a dramatic increase in the number of national security whistleblowers, whose disclosures provide critical warnings that may well prevent future terrorist attacks. These whistleblowers, at great risk, have faced retaliation and dismissal for confronting a government that would prefer to maintain the false appearance of security than to face the embarrassment of acknowledging its own errors.
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It's hard to reconcile an Administration that says it is doing everything in its power to keep us safe with the routine punishing and silencing of those who reveal risks to our safety. How does the government silence its employees? By employing abusive tactics designed to cover up incompetence and risk.
Retaliating Against Whistleblowers
Both political parties claim that another terrorist attack is a matter of when, not if. It is therefore critically important that government employees have the ability and legal protection to identify malfeasance and misconduct in everything from airport security, to customs, to our ports.
However, rather than being commended for their heroism, federal employees who expose security lapses and wrongdoing are typically vilified and retaliated against. Whether it's an FBI translator citing incompetence or a customs agent uncovering significant airport security breaches, the reward for bravery is to be fired.
Sibel Edmonds, for example, charged that the F.B.I.'s translation services were plagued by incompetence and a lack of urgency, as well as by serious security lapses. She was fired.
Diane Kleiman sought to expose corruption at the Federal Customs Agency's operations at JFK International Airport in New York City. She charged that there was widespread corruption, including alleged drug overdoses among Customs employees, cash missing from seizures, and security lapses at a major airline. She was fired.
Members of the armed forces reportedly have been threatened with retaliation for exposing inhumane and abusive interrogation tactics in Guantanamo, Afghanistan, and Iraq.
Current protections for national security whistleblowers are inadequate. FBI whistleblowers do not have the same rights given to other federal employees by the Whistleblower Protection Act of 1989. Legislation was proposed, but not passed, in the last Congress that would have made the revocation of a security clearance in retaliation for whistleblowing a ""prohibited personnel practice"" and forbade the president from using his power to exempt an agency from whistleblower protection laws retroactively.
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Government employees who risk their careers to expose deception and misconduct are true American patriots. The ACLU stands ready to provide legal support and advice to individuals who want to reveal evidence of wrongdoing by the government.
Invoking the So-Called ""State Secrets"" Privilege
In more than 60 cases, the government has invoked the so-called ""state secrets"" privilege. The privilege, when properly invoked, permits the government to block the release in litigation of any material that, if disclosed, would cause harm to national security. However, the government has employed the privilege not only to protect national security, but to protect itself from embarrassment. It has relied on the privilege to dismiss lawsuits that might expose serious wrongdoing and security lapses.
The privilege was first used in the now infamous Reynolds case. Al Palya and eight men died in October 1948 when their military plane crashed into a Georgia field. Palya's widow and two others filed a lawsuit against the Air Force. The lawsuit went up to the Supreme Court, which ruled that the government had a right to keep secrets even from federal judges on grounds of national security. They claimed that the case involved such ""secrets.""
The truth didn't come out until 2004 because the Air Force kept insisting that releasing its report might harm national security. When the military finally declassified old reports, Al Palya's daughter learned that the accident report contained no state secrets. It did, however, expose the Air Force's failure to make needed repairs to its B-29 fleet.
Now, t he government has invoked the state secrets privilege in the case of Sibel Edmonds, and the dubious Reynolds case has found its modern counterpart. As in Reynolds, the government is using the privilege to avoid exposure of its own security lapses. Edmonds' allegations - which have been supported by United States Senators and have been confirmed by the FBI itself - go to the heart of the government's pre- and post-9/11 failures to provide accurate and timely translations of material related to potential terrorist plots.
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By invoking the state secrets privilege to dismiss Edmonds' case, the government not only will avoid additional embarrassing disclosures in this case, but will send an unfortunate signal to future national security whistleblowers about the treatment they will face if they dare to come forward. If the state secrets privilege can be invoked to terminate at the outset any litigation brought by employees whose work is similar to Ms. Edmonds', then the government may retaliate with impunity against whistleblowers who disclose embarrassing lapses.
Excessive Secrecy to Cover Up Government Misconduct
The Administration has gone to extreme measures to cover-up its failures, including, in the Edmonds case, the unprecedented step of retroactively classifying information that was previously part of the public record.
Public congressional hearings and all related documents were retroactively classified, even though all of the information at issue had long been publicly available. Furthermore, a two-year-old report prepared by the Department of Justice's Office of Inspector General investigating Sibel Edmonds' allegations remains classified.
This over-classification of information that might portray the government in an unflattering light is part of a larger pattern of conduct on the part of this Administration. In October of 2001, Attorney General Ashcroft vigorously urged federal agencies to resist Freedom of Information Act requests made my American citizens. And the Administration has refused even to provide information to Congress that would permit legislators to perform critical oversight functions.
As history has taught us, excessive secrecy is not only antithetical to our democratic system, but it actually harms national security. We are witnessing an abusive use of secrecy designed to grab power by the executive and to shield itself from political embarrassment.
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1 Project on Government Oversight