Congress must take action to protect whistleblowers from the NSA

At the end of this year, Section 702 of the FISA Amendments Act is due to expire unless it is renewed by Congress. The provision is known for authorizing mass surveillance programs operated by the National Security Agency. If Congress renews the program, it should ensure strong whistleblower protections are in place to guard against abuse. Unfortunately, whistleblowers in national security and intelligence agencies today are specifically excluded from the protections applicable to employees and contractors of other federal agencies.

Originally passed in 2008, the provision was hastily renewed in 2012 under the pressure of its looming expiration, and the doomsday predictions of government officials. “The FISA Act not only legitimated almost every thing president Bush had told me to do,” former NSA Director Michael Hayden said of the law, “but in fact gave the National Security Agency a great deal more authority to do these kind of things.” 

{mosads}And yet, even under those broad powers, even under the honor system of the agency’s self-reporting arrangement, even under the secret and non-adversarial oversight of the government-friendly FISA Court (FISC), the NSA has never managed to color within the lines. A new report from Demand Progress compiled the numerous ways the NSA has been found noncompliant by the FISC each and every year over the past 12 years. Or, if you’re a visual learner, the Open Technology Institute has helpfully arranged the violations data in chart and tabular formats.

FISA judges have complained repeatedly about the agency not providing full information to the court and to Congress, its failure to address ongoing constitutional violations, and of unacceptable delays in reporting. In a report from April of this year, the FISC accused the NSA of an “institutional lack of candor” (lack of candor being a fireable offense for individual federal employees).

Meanwhile, Congress has not been able to get answers on even basic questions of oversight, such as a simple ballpark number of Americans swept into mass surveillance databases. High-level officials have played word games, perjured themselves, or simply refused to answer in congressional testimony. In short, the NSA is effectively thumbing its nose at the other two branches of government and making a mockery of democratic accountability and the rule of law. 

These abuses prove the need for whistleblowers as a failsafe to puncture the culture of excessive secrecy and the defiance of oversight. Properly shielding whistleblowers would provide incentive for intelligence officials to tell the truth and to fully inform Congress and the courts because they know if they don’t, someone else might.

Currently however, intelligence professionals have essentially no meaningful protection when blowing the whistle on classified wrongdoing. They face retaliatory employment actions, loss of security clearance (which to an intelligence professional is career ending), and criminal prosecution by the draconian Espionage Act — which bars the accused from even raising the public interest in their defense and has a long and ignoble history as a tool for silencing dissent.

Intelligence gathering may need some greater degree of secrecy than other government functions but far too much latitude has been given in the name of national security. Intelligence agencies have been allowed to see themselves as above the law and beyond accountability to the people and their representatives. This has inevitably created a shadowy breeding ground for billion-dollar boondoggles, sweeping civil liberties violations, and institutional ineptitude that makes us all less safe. We should not continue to permit retaliation against those who would warn us by speaking their conscience.

Jesselyn Radack was a whistleblower at the Department of Justice under the Bush administration and now heads the Whistleblower and Source Protection Program (WHISPeR) at ExposeFacts, where she has provided legal representation for clients such as Edward Snowden, Thomas Drake, and William Binney. William Neuheisel is the program manager at WHISPeR.