Whistleblower Protections in the Intelligence Community
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By Erik Kleinsmith, Associate Vice President, Public Sector Outreach, American Military University
Whistleblowing is a decision. It is one of the most important and difficult decisions an intelligence officer can make in his or her career. For those who unfortunately must face the decision whether to be a whistleblower, the reality of speaking up to reveal, stop, or fix a grievous wrong must be weighed against the risks of intense personal scrutiny and reprisals—the extreme of which could include physical threats. The good news is there are some ways to prepare yourself to make and carry out your decision.
My Decision to Be a Whistleblower
I became a whistleblower in 2005, in the shadow of the terrorist attacks of 9/11 and the incomplete investigation that followed. I was an intelligence officer with the U.S. Army and the lead military analyst involved in providing intelligence support to a project called Able Danger from 1999-2000.
A member of our analytic team, LTC Tony Shaffer, had stepped forward claiming that our team had identified Mohammed Atta and his fellow al Qaeda terrorists in the U.S. before 9/11. These revelations were either missed or ignored by the 9/11 Commission, which was charged with investigating the circumstances leading up to the attacks. The omissions prompted Tony to come forward and reveal what our team had done publicly.
I was then faced with the decision to either back my fellow team member or remain anonymous. I ultimately decided to be a whistleblower, which resulted in me testifying as the only allowed Able Danger witness in a September 2005 hearing before the U.S. Senate Judiciary Committee, and later in February 2006 with Tony and other team members before the U.S. House Armed Services Committee.
While no one in their right mind actively seeks to become a whistleblower, there are some critical things a person ought to know and consider should they find themselves in a situation where the only remedy is to report illegal or unethical activity beyond their immediate organization.
Your Credibility is #1
The single most powerful armament the whistleblower has is his credibility. After all, it is your word against the status quo, your word against an organization that has condoned the problem, and your word against those involved with the problem that have a vested interest in making the issue go away.
A typical strategy for those implicated by whistleblowers is to deny everything, admit nothing, discredit the accuser, and throw out counter-accusations to deflect from the original problem. As a whistleblower, know that your credibility must survive every assault that will come in both the short- and long-term.
In an effort to help whistleblowers defend their credibility and continue to maintain focus on the problem itself, there are a few rules that, if followed, can help.
The following tips, or unofficial rules, are based on my own experience and seem especially relevant in light of the recent Ukrainian whistleblower case.
- Understand the rules and regulations. The Intelligence Community Whistleblower Protection Act (ICWPA) of 1998 provides the foundational basis of whistleblower protections. It specifies the primary criteria for a whistleblower complaint (i.e., waste, fraud, abuse or corruption) as well as the requirement of the whistleblower to express his complaint in a lawful manner to someone who can do something about it. This implies the whistleblower must have a good reason for the complaint, not simply a disagreement in policy or tactics.
- Use the proper reporting channels. One sure way to dash your credibility with a single action is to violate the channels of reporting that are already established for whistleblowers by using public or political channels. If you go to the media or a politician first, you are signaling that you are looking for personal exposure or political gain instead of fixing the original problem. As I’ve said many times over, politics ruins intelligence and running to politicians with a problem before pursuing proper channels is an almost guaranteed way of getting labeled as a partisan player and a hack.
- Be prepared for challenges. There is no such thing as a whistleblower complaint that does not expose or accuse someone else of incompetency or maliciousness. Wargame and prepare for potential reactions from those that will be affected by the complaint. Plan your strategy prior to blowing the whistle. Seek advice from those you respect and keep yourself open to unsolicited advice from others whom you respect.
- Do not expect anonymity. While an extremely protective measure, choosing to remain anonymous is a major blow to a whistleblower’s credibility. Though we still live in an era when freedom of speech is paramount, an important element to being a whistleblower is taking responsibility for the things you say and the problems you reveal. Sniping from the shadows without stepping forward opens you up to attacks regarding your moral fiber and courage to withstand criticism. If you are going to shed light on a major problem, you must have the fortitude to stand in that same light. There is no law that protects a whistleblower’s identity. It should therefore be regarded as a temporary luxury.
- Do not leak classified material. As Edward Snowden and other leakers can attest, leaking classified information is illegal, no matter how righteous the cause. In doing so, you not only risk lives and jeopardize U.S. national security, you also nullify any legal protections you may have had under current law. Instead of focusing on the problem, you’ve created another one for yourself, perhaps much larger than the original.
- Use your own language. Especially in a written statement, use your own words and vernacular to describe the problem or issue. While you can seek legal, peer, or some other professional consultation, if your complaint appears as if you didn’t write it yourself, your credibility is shot. Instead of a patriot seeking to fix a problem for the good of everyone, having your complaint appear as if it was written by someone else gives the impression that you’re simply a pawn in a larger political game.
- Stay within the scope of your original complaint. Depending on the attention or level of notoriety that results from whistleblowing, keep your subsequent statements within the scope of the original problem. This includes any interviews, statements, social media postings, or any other communication you make after becoming a whistleblower. Identifying a problem within a given intelligence agency does not make you an expert on foreign policy.
- Set aside any personal agendas. Depending on the situation, becoming a whistleblower will put you in the spotlight for your 15 minutes of fame. Don’t confuse this attention with celebrity status, as the fame is fleeting and not always positive. Your credibility is based largely on your character. If it appears that you are actively seeking publicity or milking the situation for your personal benefit, you risk being labeled an opportunist rather than a credible witness.
By sticking to these simple rules, whistleblowers can better arm themselves against those who would attack the messenger. If you make the difficult decision to become a whistleblower, remember your objective is to keep the focus on the problem you’re exposing as opposed to making yourself part of the problem.
Author’s Note: This article was based on my comments during a Whistleblowers Panel for the International Association for Intelligence Education (IAFIE) hosted by Georgetown University in December 2019.
About the Author: Erik Kleinsmith is the Associate Vice President for Business Development in Intelligence, National & Homeland Security, and Cyber for American Military University. He is a former Army Intelligence Officer and the former portfolio manager for Intelligence & Security Training at Lockheed Martin. Erik is one of the subjects of a book entitled The Watchers by Shane Harris, which covered his work on a program called Able Danger, tracking Al-Qaeda prior to 9/11. He is the author of the 2020 book, Intelligence Operations: Understanding Data, Tools, People, and Processes. He currently resides in Virginia with his wife and two children. To contact the author, email IPSauthor@apus.edu. For more articles featuring insight from industry experts, subscribe to In Public Safety’s bi-monthly newsletter.