President Obama's excuse for not prosecuting Bush administration officials for torture was that "we need to look forward as opposed to looking backwards" so that "extraordinarily talented people" do not have to "spend all their time looking over their shoulders."
In the case of whistleblowers trying to protect the public from waste, fraud and abuses of power, that rule has been reversed. Multiple government employees, including Thomas Drake, have been aggressively prosecuted to the extent that federal judges, generally deferential to the government, have sharply criticized the government's attorneys.
Today, we learned that the Obama administration is "looking backwards" at hundreds of previously reported leaks for the purpose of prosecuting [or administratively punishing] those, also.
Newly released report describes search for leaks...and whistleblowers?
The Inspector General for the Intelligence Community, I. Charles McCullough, is "reviewing 375 unauthorized disclosure case files" according to a report covering the period from November 2011 through June 2012 (at p. 16), per Steven Aftergood of Secrecy News.
Most of these reviews pertained to disclosures which could not be criminally prosecuted for one reason or another, and which were therefore considered closed cases. Until recently, they were usually not investigated further. But starting a year or so ago, the IC Inspector General began reviewing them in order to identify the leakers and to impose administrative sanctions where appropriate. - Secrecy News
One reason that a disclosure "could not be criminally prosecuted for one reason or another" might be that it was an act of whistle-blowing made "within channels," as NSA whistleblower Thomas Drake initially did. Indeed, the period for which the IG is examining leaks correlates with the period when the Justice Department was prosecuting Thomas Drake. Obtained under the Freedom of Information Act, the
IG's report describes its vision (with no apparent sense of irony) as follows:
Speak truth; enable excellence in management and accountability
How independent is the Intelligence Community Inspector General?
The IC IG was established by the Intelligence Authorization Act (lAA) for Fiscal Year 2010, which authorized it "to initiate and conduct independent audits, inspections, investigations, and reviews on programs and activities within the responsibility and authority of the ONI." The IC IG is appointed by the President, and thus his/her loyalty to the President should be presumed. The IG can be removed from office "only by the President" and "shall report directly to and be under the general supervision of the Director of National Intelligence."
The Director of National Intelligence may prohibit the Inspector General of the Intelligence Community from initiating, carrying out, or completing any investigation, inspection, audit, or review if the Director determines that such prohibition is necessary to protect vital national security interests of the United States.
That is the bureaucracy's concept of "
extensive oversight" of classified programs: an Inspector General who can be over-ruled by the two most powerful officials in charge of programs under IG review. It creates the illusion of oversight while substantially undermining its likelihood, and is similar, by the way, to a provision the Bush administration embedded in the Homeland Security Act for DHS.)
How does President Obama view intelligence community oversight?
In signing the 2010 Intelligence Authorization Act that established the IC IG position, President Obama added a signing statement that provides insights into the President's implementation of of intelligence community oversight. Here is a portion of that signing statement.
In a March 15, 2010, letter to Congress, the Department of Justice summarized my Administration's understanding of a number of provisions. In particular, section 405 establishes an Inspector General of the Intelligence Community in the ODNI. In accordance with longstanding executive branch policy, my Administration understands section 405's requirement that the Inspector General make an immediate report to congressional committees regarding investigations focused upon certain current or former IC officials as not requiring the disclosure of privileged or otherwise confidential law enforcement information. Moreover, the whistleblower protection provisions in section 405 are properly viewed as consistent with President Clinton's stated understanding of a provision with substantially similar language in the Intelligence Authorization Act for Fiscal Year 1999. See Statement on Signing the Intelligence Authorization Act for Fiscal Year 1999: Public Papers of the Presidents of the United States, William J. Clinton, 1998 (p. 1825).
This letter appears to be one mentioned in the signing statement. It includes the following statement:
[I]f this bill were read to give intelligence community empIoyees unilateral discretion to disclose classified information to Congress, it would be unconstitutional.
The administration's proposed "fix" for that alleged problem was to "provide that intelligence community employees may also report their concerns to the Inspector General of the Intelligence Community instead of the Inspector General of their agency, should they so choose." But, as pointed out above, the IG's ability to act on their concerns is constrained by the President and DNI. Subsequent to the establishment of the IC IG position, any future President and DNI will also have the power to shut down IG investigations, although they could be involved themselves in a major scandal. John Kiriakou, a former CIA employee, has alleged that the Bush White House
authorized torture of terrorism suspects.
The White House sent another letter, same date, to Congress on the letterhead of the Director, Office of Management and Budget. In the letter, the administration objects to multiple provisions of the bill that offered better Congressional oversight of classified programs, including the following.
The Senate bill imposes unreasonable burdens on the Intelligence Community (IC) by requiring the committees to be notified of any change in a covert action and by imposing potential Anti-Deficiency Act liability ifthere is a subsequent disagreement about whether a committee was "fully and currently" informed of anintelligenceactivity. Inaddition,andsimilartotheHousebill,theSenatebill requires that every member of the intelligence committees be informed of the "main features" of the intelligence activity that is not fully briefed to all members of the committee. Finally, with respect to the requirement to provide "the legal authority under which [an] intelligence activity is being or was conducted," we wish to make clear that we would construe the provision only to require that the Executive Branch provide the committee with an explanation of the legal basis for the activity; it would not require disclosure of any privileged information.
How has the Intelligence Community Inspector General implemented his responsibilities?
In concept, the Intelligence Community Inspector General is responsible for taking appropriate action...
to promote economy, efficiency, and effectiveness in the administration and implementation of such programs and activities; and
(B) to prevent and detect fraud and abuse in such programs and activities;
So, where are the investigations of government abuses of classification to hide fraud and abuses in intelligence agencies, or threats to the efficiency of intelligence programs such as Thomas Drake
reported? Where is the investigation of over-classification that undermines national security effectiveness by providing almost limitless opportunities for data to leak? The government as a whole is opposed to discussing those subjects, although experts say over-classification and classification abuses lead to contempt for the classification process.
What impact will Snowden's disclosures have on intelligence community oversight?
As a result of Edward Snowden's disclosures, the extent and legitimacy of classification are now the subject of public discussions. But, within the federal government itself, it remains the Great Taboo. The executive branch asserts that is is always right in classifying information and no one--not Congress, not the Judiciary and certainly not its employees--may question its decisions.
As for public input, some current and former officials believe the public has no right at all to know what their leaders are doing--hence government has become the dysfunctional mess it is today. One of those who share that view previously was a "heartbeat" from the Presidency.
[CHRIS] WALLACE: So what right do you think the American people have to know what government is doing?
[DICK] CHENEY: Well, they get to choose, they get to vote for senior officials, like the president of the United States, or like the senior officials in Congress. And you have to have some trust in them. You don't go out when you find an intelligence operation trying to collect data, and in effect tell the enemy what you're doing. It would be a dumb idea. It makes the program significantly less effective and it reveals to our adversaries crucial information that they shouldn't have. - Fox News Sunday
Some information truly needs to be secret and should be vigorously protected. But, that information is buried in a mountain of benign and wrongly classified information that covers up wrongdoing and disenfranchises the public. Those who intentionally bury pearls of great price under mountains of manure should not expect others to respect their decisions. Honest civil servants and contractors are motivated to rebel against a system that gives every appearance of being criminally insane.
If the President truly believes that we should look forward, not backward, he should courageously address the problem of over classification rather than backing away from it. Responsible investigation of a structural collapse begins with a search for the the root cause--not with attacks on those who reported the collapse. In addition, the President should implement the recommendations of experts on whistleblower protections that multiple presidents and Congresses have opposed.
Providing a disclosure process that earns the respect and trust of government employees is essential to having strong national security. As an attorney who litigated many whistleblower cases once said, “Whistleblowers who work for the federal government are entitled not to better whistleblower protections but the best whistleblower protections."