NATIONAL SECURITY WHISTLEBLOWERS IN THE

POST-SEPTEMBER 11TH ERA: LOST IN A LABYRINTH AND FACING SUBTLE RETALIATION

HEARING

BEFORE THE

SUBCOMMITTEE ON NATIONAL SECURITY,

EMERGING THREATS, AND INTERNATIONAL

RELATIONS

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

FEBRUARY 14, 2006

Serial No. 109–150

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.house.gov/reform

NATIONAL SECURITY WHISTLEBLOWERS IN THE POST-SEPTEMBER 11TH ERA: LOST IN

A LABYRINTH AND FACING SUBTLE RETALIATION

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

28–171 PDF 2006

NATIONAL SECURITY WHISTLEBLOWERS IN THE

POST-SEPTEMBER 11TH ERA: LOST IN A LABYRINTH AND FACING SUBTLE RETALIATION

HEARING

BEFORE THE

SUBCOMMITTEE ON NATIONAL SECURITY,

EMERGING THREATS, AND INTERNATIONAL

RELATIONS

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

FEBRUARY 14, 2006

Serial No. 109–150

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.house.gov/reform

(II)

COMMITTEE ON GOVERNMENT REFORM

TOM DAVIS, Virginia, Chairman

CHRISTOPHER SHAYS, Connecticut

DAN BURTON, Indiana

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

GIL GUTKNECHT, Minnesota

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

CANDICE S. MILLER, Michigan

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

JON C. PORTER, Nevada

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

CHARLES W. DENT, Pennsylvania

VIRGINIA FOXX, North Carolina

JEAN SCHMIDT, Ohio

——— ———

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. DUTCH RUPPERSBERGER, Maryland

BRIAN HIGGINS, New York

ELEANOR HOLMES NORTON, District of

Columbia

———

BERNARD SANDERS, Vermont

(Independent)

DAVID MARIN, Staff Director

ROB BORDEN, Parliamentarian

TERESA AUSTIN, Chief Clerk

PHIL BARNETT, Minority Chief of Staff/Chief Counsel

SUBCOMMITTEE ON NATIONAL SECURITY, EMERGING THREATS, AND INTERNATIONAL

RELATIONS

CHRISTOPHER SHAYS, Connecticut, Chairman

KENNY MARCHANT, Texas

DAN BURTON, Indiana

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEVEN C. LATOURETTE, Ohio

TODD RUSSELL PLATTS, Pennsylvania

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

JON C. PORTER, Nevada

CHARLES W. DENT, Pennsylvania

DENNIS J. KUCINICH, Ohio

TOM LANTOS, California

BERNARD SANDERS, Vermont

CAROLYN B. MALONEY, New York

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. DUTCH RUPPERSBERGER, Maryland

STEPHEN F. LYNCH, Massachusetts

BRIAN HIGGINS, New York

EX OFFICIO

TOM DAVIS, Virginia HENRY A. WAXMAN, California

LAWRENCE J. HALLORAN, Staff Director and Counsel

J. VINCENT CHASE, Chief Investigator

ROBERT A. BRIGGS, Clerk

ANDREW SU, Minority Professional Staff Member

(III)

C O N T E N T S

Page

Hearing held on February 14, 2006 ....................................................................... 1

Statement of:

McVay, James, Deputy Special Counsel, U.S. Office of the Special Counsel; Thomas Gimble, Acting Inspector General, Office of the Inspector

General, Department of Defense, accompanied by Jane Deese, Director,

Military Reprisal Investigations, Office of the Inspector General, Department of Defense, and Daniel Meyer, Director, Civilian Reprisal

Investigations, Office of the Inspector General, Department of Defense;

Glenn A. Fine, inspector general, Office of the Inspector General, Department of Justice; and Gregory H. Friedman, Inspector General,

Office of the Inspector General, Department of Energy ............................ 374

Fine, Glenn A. ........................................................................................... 397

Friedman, Gregory H. ............................................................................... 408

Gimble, Thomas ......................................................................................... 383

McVay, James ............................................................................................ 374

Provance, Samuel J., Specialist, U.S. Army, Department of the Army;

Lieutenant Colonel Anthony Shaffer, USAR, Springfield, VA; Michael

German, former Special Agent, Federal Bureau of Investigation; Russell D. Tice, former Intelligence Officer, National Security Agency, and

member, National Security Whistleblower Coalition; and Richard

Levernier, Goodyear, AZ ............................................................................... 106

German, Michael ....................................................................................... 132

Levernier, Richard .................................................................................... 177

Provance, Samuel J. .................................................................................. 106

Shaffer, Anthony ....................................................................................... 122

Tice, Russell D. .......................................................................................... 169

Zaid, Mark S., esq., managing partner, Krieger & Zaid, PLLC, Washington, DC; Beth Daley, senior investigator, Project on Government Oversight; Thomas Devine, legal director, Government Accountability

Project; and William G. Weaver, senior advisor, National Security

Whistleblowers Coalition [NSWBC] ............................................................ 240

Daley, Beth ................................................................................................ 292

Devine, Thomas ......................................................................................... 329

Weaver, William G. ................................................................................... 356

Zaid, Mark S. ............................................................................................. 240

Letters, statements, etc., submitted for the record by:

Daley, Beth, senior investigator, Project on Government Oversight, prepared statement of ........................................................................................ 295

Devine, Thomas, legal director, Government Accountability Project, prepared statement of ........................................................................................ 332

Fine, Glenn A., inspector general, Office of the Inspector General, Department of Justice, prepared statement of ....................................................... 399

Friedman, Gregory H., Inspector General, Office of the Inspector General,

Department of Energy, prepared statement of ........................................... 409

German, Michael, former Special Agent, Federal Bureau of Investigation:

Prepared statement of ............................................................................... 135

Response ..................................................................................................... 143

Gimble, Thomas, Acting Inspector General, Office of the Inspector General, Department of Defense, prepared statement of ................................. 385

Kucinich, Hon. Dennis J., a Representative in Congress from the State

of Ohio:

New York Times article ............................................................................ 28

Various stories ........................................................................................... 423

Levernier, Richard, Goodyear, AZ, prepared statement of ........................... 179

Page

IV

Letters, statements, etc., submitted for the record by—Continued

McVay, James, Deputy Special Counsel, U.S. Office of the Special Counsel, prepared statement of ............................................................................ 377

Provance, Samuel J., Specialist, U.S. Army, Department of the Army,

prepared statement of ................................................................................... 108

Shaffer, Anthony, Lieutenant Colonel, USAR, Springfield, VA, prepared

statement of ................................................................................................... 125

Shays, Hon. Christopher, a Representative in Congress from the State

of Connecticut:

Memorandum and report .......................................................................... 43

Prepared statement of ............................................................................... 3

Various letters ........................................................................................... 39

Tice, Russell D., former Intelligence Officer, National Security Agency,

and member, National Security Whistleblower Coalition, prepared

statement of ................................................................................................... 172

Waxman, Hon. Henry A., a Representative in Congress from the State

of California, prepared statement of ........................................................... 7

Weaver, William G., senior advisor, National Security Whistleblowers

Coalition [NSWBC], prepared statement of ................................................ 358

Weldon, Hon. Curt, a Representative in Congress from the State of Pennsylvania, information concerning intelligence officials and whistleblowers ........................................................................................................... 103

Zaid, Mark S., esq., managing partner, Krieger & Zaid, PLLC, Washington, DC, prepared statement of ................................................................... 243

(1)

NATIONAL SECURITY WHISTLEBLOWERS IN

THE POST-SEPTEMBER 11TH ERA: LOST IN

A LABYRINTH AND FACING SUBTLE RETALIATION

TUESDAY, FEBRUARY 14, 2006

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON NATIONAL SECURITY, EMERGING

THREATS, AND INTERNATIONAL RELATIONS,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 1:05 p.m., in room

2154, Rayburn House Office Building, Hon. Christopher Shays

(chairman of the subcommittee) presiding.

Present: Representatives Shays, Duncan, Dent, Weldon,

Kucinich, Maloney, Van Hollen, Ruppersberger, and Waxman.

Staff present: Lawrence Halloran, staff director and counsel; J.

Vincent Chase, chief investigator; Robert A. Briggs, clerk; Marc

LaRoche, intern; Phil Barnett, minority staff director/chief counsel;

Kristin Amerling, minority general counsel; Karen Lightfoot, minority communications director/senior policy advisor; David

Rapallo, minority chief investigative counsel; Andrew Su, minority

professional staff member; Earley Green, minority chief clerk; and

Jean Gosa, minority assistant clerk.

Mr. SHAYS. A quorum being present, the hearing of the Subcommittee on National Security, Emerging Threats, and International Relations entitled, ‘‘National Security Whistleblowers in

the Post-September 11th Era: Lost in a Labyrinth and Facing Subtle Retaliation,’’ is called to order.

All Federal employees are ethically bound to expose violations of

law, corruption, waste, and substantial danger to public health or

safety. But meeting that obligation to ‘‘blow the whistle’’ on coworkers and superiors has never been easy. Breaking bureaucratic

ranks to speak unpleasant and unwelcome truths takes courage

and risks invoking the wrath of those with the power and motivation to shoot the messenger.

Seldom in our history has the need for the whistleblower’s

unfiltered voice been more urgent, particularly in the realms of national security and intelligence. Extraordinary powers needed to

wage war on our enemies could, if unchecked, inflict collateral

damage on the very rights and freedoms we fight to protect. The

use of expansive executive authorities demands equally expansive

scrutiny by Congress and the public. One absolutely essential

source of information to sustain that oversight: whistleblowers.

2

On September 11, 2001, we learned the tragic price of relying on

cold war paradigms and static analytical models that could not connect the dots. Since then, a great deal of time and money has been

spent retooling the national security apparatus to meet new

threats. Today, in the fight against stateless terrorism, we need intelligence and law enforcement programs to function strictly according to the law and with ruthless efficiency. And we need whistleblowers from inside those programs, national security whistleblowers, to tell us when things go wrong.

But those with whom we trust the Nation’s secrets are too often

treated like second-class citizens when it comes to asserting their

rights to speak truth to power. Exempted from legal protections

available to most other Federal employees, national security whistleblowers are afforded far less process than is due as they traverse

separate and unequal investigative systems in the Department of

Justice, the Department of Defense, the Department of Energy,

Central Intelligence Agency, and other agencies.

They work in secretive communities institutionally and cultural

hostile to sharing information with each other, much less those of

us outside their closed world. In that environment, reprisals for

whistleblowing can easily be disguised as personnel actions that allegedly would have taken place anyway for failure to be a team

player. Whistleblowers in critical national security positions are

vulnerable to unique forms of retaliation. Suspension or revocation

of a security clearance can have the same chilling effect as demotion or firing, but clearance actions are virtually unreviewable

under current whistleblower protections.

Last year, the Government Reform Committee approved a bill to

strengthen whistleblower protections for most Federal employees.

To help define the full scope of the problem faced by national security whistleblowers, the proposal also directed the Government Accountability Office [GAO], to study possible correlations between

protected disclosures and security clearance revocations.

It is in that same cause we convened today, to better understand

the plight of national security whistleblowers in this new and dangerous era. Should security clearance revocations be included in the

list of personnel practices managers may not use against whistleblowers? What additional protections would draw out needed disclosures without infringing on the legitimate powers of the executive branch to keep secrets?

This is an open hearing because employee rights and management accountability must be discussed openly. There is nothing top

secret about gross waste or the abuse of power. At the same time,

witnesses with access to secured information have assured us their

testimony will avoid even the inadvertent disclosure of classified

materials, and we will, of course, take care to observe those boundaries.

We are joined today by a panel of whistleblowers who will describe their difficult journeys, a panel of experts on whistleblower

protections, and a panel of those in Government to whom whistleblowers look for fairness and due process when their courage is met

with resistance and reprisals.

[The prepared statement of Hon. Christopher Shays follows:]

3

4

5

Mr. SHAYS. We welcome everyone today, and with that I would

ask the ranking member of the full committee if he has a statement.

Mr. WAXMAN. Thank you very much, Mr. Chairman, not only for

recognizing me but for holding today’s hearing on national security

whistleblowers. I thank you also for working with the Democrats

to select today’s witnesses.

We are going to begin with a panel of present and former Government officials. They have three things in common: first, they

were all screened and approved by our Government to work on our

Nation’s most secretive counterterrorism, national security, and

law enforcement programs; second, they all came forward to report

what they viewed as critical abuses in these programs; and third,

they all claim to have been retaliated against for trying to correct

these abuses.

There is one simple overarching question for today’s hearing: Do

the existing laws of our Nation provide sufficient protection for national security whistleblowers? Or should Congress enhance safeguards for people who are trying to do the right thing and protect

this Nation?

The Bush administration has taken a consistent approach to

those who question it from within. It attacks them.

The White House attacked Joe Wilson, and his wife, CIA agent

Valerie Wilson, because Mr. Wilson disclosed that the Bush administration relied on fabricated evidence in making its case for war.

Richard Foster is an actuary at the Department of Health and

Human Services who tried to tell Congress the true cost of the

Medicare drug benefits. He nearly lost his job as a result.

General Eric Shinseki was forced to resign as Army Chief of

Staff when he correctly predicted that the United States would

need several hundred thousand troops to occupy Iraq.

Bunny Greenhouse, the top contracting official at the Army

Corps of Engineers, was removed after insisting on enforcing the

rules against Halliburton’s monopoly oil contract in Iraq.

On the other hand, those who support the politics of this administration get preferential treatment.

To this day, Karl Rove retains his security clearance in spite of

evidence that he mishandled classified information regarding Valerie Wilson’s position at the CIA.

The President has stated that Mr. Rove will keep his clearance

until he is actually charged with a crime. But that is not the standard that was applied to today’s witnesses. Because they criticized

administration policies, their clearances were suspended without

any criminal charges and without any allegation that they disclosed classified information.

This is a double standard, and it has dangerous consequences.

When future abuses occur, those who could blow the whistle will

see what happens and remain silent rather than risk this kind of

attack.

This result is bad for our country. Silencing national security

whistleblowers who are attempting to report valid claims of waste,

fraud, and abuse places our Nation in greater danger, not less.

This should not be a partisan issue.

6

Last fall, this committee considered a bill to expand whistleblower protections for Federal employees. As written, however, this

bill excluded national security whistleblowers.

To address this gap, Congresswoman Maloney offered an amendment that would have expanded the bill to national security whistleblowers. At the time of the vote, many members voted against

that amendment.

To be clear, they did not say they were opposed to the idea. They

said they did not have enough information at that time to make an

informed decision. So I give credit to Chairman Shays for calling

today’s hearing to understand what these national security whistleblowers face.

My hope is that following this hearing, we can work together on

a bipartisan basis to introduce new legislation that will provide national security whistleblowers with basic protections. No one with

a security clearance should have to fear that his or her clearance

can be pulled in retaliation for truthfully reporting corruption or

abuse.

The national security whistleblowers here today are not alone.

Many others could have testified, but we simply could not accommodate all of them, and I have some of their written statements

here.

One is from Michael Nowacki, a former staff sergeant in the U.S.

Army who worked as a counterintelligence agent and interrogator

in Iraq. He reported serious flaws in U.S. detainee practices, after

which his security clearance was stripped.

I also have a statement from Daniel Hirsch and a group of several Foreign Service officers from the State Department who also

had their security clearances revoked for reporting what they

viewed as abuses.

I thank all of them for their written submission and ask that

their statements be made part of the official hearing record. And

I thank the witnesses who are here today for their courage in

speaking out.

Mr. SHAYS. Without objection, your requests for submission to

the record will happen, without objection.

Mr. WAXMAN. Thank you, Mr. Chairman.

[The prepared statement of Hon. Henry A. Waxman and the information referred to follow:]

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

Mr. SHAYS. The Chair would now recognize the ranking member

of the subcommittee, Mr. Kucinich.

Mr. KUCINICH. I want to thank the Chair for calling this hearing

and thank our ranking member for the views that he just expressed.

I think all over America people are asking, when they see what

is apparently a grab for power or an abuse of power, Where is the

Congress? What is Congress doing about it?

Congress is a co-equal branch of Government. We have just as

much of a right and a responsibility to determine the course of

events in this country as does the executive branch. This subcommittee, therefore, exemplifies the valid and essential power of

the Congress of the United States in inquiring into the treatment

that those who take a stand on behalf of the truth are receiving

at the hands of those who have sullied the truth in the executive

branch.

The underlying question at this hearing today is, who will speak

up? Who will speak up if those who have taken the risks to tell the

truth are publicly punished, stripped of their positions, pushed

aside? Who will speak up at a moment of peril? Who will speak up

to defend this country’s reputation, its honor?

We are here today to take a stand on behalf of those who took

a stand on behalf of America. So I want to welcome the whistleblowers who are with us. I know that they have been eager to tell

their stories, and they are patriots for coming forward. They risked

their jobs, their reputations, to make this country safer and our

Government more responsible by pointing out our Nation’s security

vulnerabilities and Government abuses.

How different our world and our Nation would be, how safer it

would be against global terrorism, had, for example, we listened to

FBI Agent Coleen Rowley’s warnings prior to September 11th.

Model employees are either ignored or told to keep their mouths

shut. Their honesty is not rewarded but, rather, they and others

in law enforcement, national security, and the intelligence community are punished through a systematic and harsh series of personal and professional retaliations.

Let me state clearly that there is absolutely nothing subtle about

the retaliation which whistleblowers face. Scare tactics are used to

enforce discipline to warn other potential whistleblowers against

coming forward. National security whistleblowers are subject to

harassment, to transfers or demotion or unrelated personal attacks

about their sexual activities or personal finances. Instead of examining merits of allegations, the story becomes shifted to the whistleblower’s conduct.

You only need to look at what is happening with the goings-on

in the National Security Agency right now, so-called leaks of information, instead of addressing exactly what the problem is, the attack suddenly has shifted to the people that are putting forth the

information.

Are we interested in either getting at the truth or are we interested in attacking the truth tellers? That is one of the questions

that has to be answered here today. It seems that no infraction is

too small to use against a whistleblower. They may have their security clearances suspended, as we will hear, or revoked, essenVerDate 11-MAY-2000 11:19 Jul 20, 2006 Jkt 000000 PO 00000 Frm 00034 Fmt 6633 Sfmt 6633 D:\DOCS\28171.TXT HGOVREF1 PsN: HGOVREF1
27

tially preventing them from ever working in the intelligence community or the national security community again. These are Federal employees who were apparently trustworthy enough to routinely handle the most sensitive top secret information in our country, passed extensive background checks, but once they come forward with information of importance to the American people and

defending our national honor, people are suddenly viewed as suspicious troublemakers when they blow the whistle. They may even

be forced to undergo psychiatric examinations to see if they are

mentally stable enough to perform their duties.

This is a throwback to what we used to hear about in the Soviet

Union. In the old Soviet Union, if somebody was challenging the

Politburo or the practices of the government in some public way

and they were insiders, well, suddenly they ended up getting

shipped off to a psychiatric clinic. Methods of retaliation are outrageous, and we should all be offended that this occurs with seeming regularity and impunity in our Federal agencies.

What is even more egregious to me is there is a double standard

for national security whistleblowers. Because of the sensitivity of

the information they work on, they do not have the same protection

as other Civil Service employees. They are not allowed to speak

freely to Congress, are not the subjects of the already weak Whistleblower Protection Act of 1994, and have little recourse from

third parties ostensibly established to hear their claims, such as

the Merit Systems Protection Board or the judicial system.

So who gets to hear their claims? Well, it is left to the employing

agencies who are the ones who are often exposed, who then turn

around and act as judge and jury when national whistleblowers

come forward with an allegation. This should be the first place for

recourse, not the first and the last.

So, Mr. Chairman, I hope that you will join with those of us on

this side of the aisle who will advocate strong legislation to close

the loopholes in our whistleblower protection laws. These basic protections should be applicable to all Federal employees and Federal

contractors across the board. This should not be a partisan issue,

and I trust that in calling this hearing today, you will proceed in

that spirit. Our Nation’s security should be the first priority, not

protecting agencies or not protecting management from embarrassment or damaging information. I look forward to working with you

on such legislation.

Again, Mr. Chairman, I want to thank you for working with us

to hold this hearing and to include the witnesses we requested. I

think their testimony will show the urgency of the needed reform

of our whistleblower laws, and I hope they are going to be willing

and allowed to speak freely and candidly and we can rectify the retaliations that people have suffered. I want to say that again. We

need to rectify the retaliations which people have suffered because

they had the courage to tell the truth.

Thank you, Mr. Chairman, and I want to welcome the witnesses.

[The information referred to follows:]

28

29

30

31

32

33

34

35

36

Mr. SHAYS. I thank the gentleman.

At this time the Chair would recognize the gentlelady from New

York, Carolyn Maloney.

Mrs. MALONEY. Thank you, Mr. Chairman, for calling this hearing and Ranking Member Waxman, and I truly appreciate your

continued attention to this issue. It is tremendously important, I

would say, to the national security of our country. And when we

do work on this issue, it reminds me of the old adage, ‘‘The truth

shall set you free.’’

Unfortunately, it appears that the current administration has

taken this to a new level, and I cite the examples that Chairman

Waxman mentioned earlier of the Wilsons and General Shinseki

and others. The truth will set you free because if you speak up, you

get fired. And we all know that the whistleblower protections are

weak and that the main law is the Whistleblower Protection Act.

However, this law has been weakened by recent court decisions,

and even the weak protections offered under this law do not apply

to national security whistleblowers from the uniformed military, including the FBI, the CIA, the Defense Intelligence Agency, the National Security Agency, and the contractors at these very extremely

important agencies.

Complicating the situation is the veil of secrecy most of their

work is covered by. This subcommittee has repeatedly heard from

people who have had their security clearances revoked after blowing the whistle on what they felt was a breach of security for our

country. And we have been told that wrongdoers have been allowed

to continue their actions while the whistleblower has been made to

be the one to suffer.

Clearly, we must fully protect our national security, but we also

must provide secure avenues for illegal activity to be swiftly dealt

with. That is why back in September, when the full committee was

marking up H.R. 1317, the Federal Employee Protection of Disclosure Act, that I offered the amendment that would make it clear

that whistleblower protections are extended to employees in national security and the intelligence community. I believe that is an

extremely important, substantive amendment. Regrettably, it failed

along party lines, but the majority indicated, and I appreciate their

statements, that their opposition was based on the fact that we had

not had adequate discussion and hearings on it, and that they simply did not know enough about the amendment to support it.

So it is my hope that today after this hearing and our subcommittee’s understanding of it on this subject, that my colleagues

on the Republican side of the aisle will be able to support this effort in the future.

As Mr. Waxman mentioned in his opening comments, our staffs

have been working on legislation based on the amendment that I

just mentioned and that would extend the protections of whistleblower protections to employees of national security and the intelligence community. I hope that after this hearing we will be able

to work together and pass this into law.

Again, I thank the chairman and ranking member for holding

these hearings. I look forward very much to the testimony, and I

appreciate all the panelists being here.

Thank you very much. I yield back.

37

Mr. SHAYS. Thank you, Mrs. Maloney.

At this time the Chair would recognize Mr. Van Hollen from

Maryland.

Mr. VAN HOLLEN. Thank you, Mr. Chairman, and let me start by

thanking you for holding this hearing today. As has been said, this

is not a partisan issue. This should not be a Republican issue or

a Democratic issue. This is an issue that I think is important to

the American people to make sure they have confidence in the integrity of their own Government. I think the American people are

questioning the integrity of that Government these days, and it is

important that they know that people within our Government, civil

servants, whether they are in the national security apparatus or

whether they are in our civil institutions on the civilian side, that

people who see and hear wrongdoing within those agencies are free

to come forward and report it without fear of being punished, without fear of being retaliated against for coming forward with the

truth. And I think the integrity of our national security institutions

depends on people having faith and confidence that is going to happen, that people will be able to come forward if they see waste,

fraud, abuse, if they see law breaking, if they see coverup.

So I think this is a very important hearing, Mr. Chairman, and

I think it is an important step in helping to restore the confidence

of the American people in our Government and making sure that

indeed we do put safety first and the public safety first and the national security interests first and make sure that people who are

telling the truth are free to come forward without fear of reprisal.

And it is important that people under that these are people who

are putting their own careers at risk. This is not an easy thing to

do to come forward. And as has been said, I think these are true

patriots, and we should welcome them in the interest of our own

security.

So thank you, Mr. Chairman, for holding this hearing.

Mr. SHAYS. I thank the gentleman.

Before calling on our witnesses, we will do a few UCs.

I ask unanimous consent that all members of the subcommittee

be permitted to place an opening statement in the record and that

the record remain open for 3 days for that purpose, and without objection, so ordered.

I ask further unanimous consent that all witnesses be permitted

to include their written statements in the record, and without objection, so ordered.

I ask unanimous consent that Mr. Waxman’s request to put a

statement of Michael S. Nowacki, former staff sergeant, U.S. Army,

and then a statement with a letter of Concerned Foreign Service

Officers, dated February 3rd, and without objection, will be put in

the record.

I ask further unanimous consent that the following be made part

of the record: a letter from the subcommittee dated November 10,

2005, inviting the CIA Inspector General John L. Helgerson to participate in today’s hearing; and a letter from the CIA Office of Legislative Affairs indicating the CIA’s Office of the Inspector General

38

‘‘has never received, nor had to investigate, a whistleblower complaint in which an employee claimed that their clearances were revoked as a method of retaliation for their whistleblower activities.’’

Without objection, these letters will be made part of the record.

[The information referred to follows:]

39

40

41

42

Mr. SHAYS. I do want to comment that I think it is really very

surprising that the Inspector General would communicate through

us through the Director of Congressional Affairs. I like to view that

the IG’s office is totally independent and would have their own way

of communicating with us without having to go directly through

the department.

Do we have another unanimous consent?

Mr. WAXMAN. Before you leave that one, I find that an amazing

letter because the Director of Congressional Affairs at the CIA, and

I think you are correct in saying it, I do not know why he has to

respond to your letter to the CIA. But, in effect, he says there is

no reason for the CIA to come here because they have ‘‘never received, nor had to investigate, a whistleblower complaint in which

an employee claimed their clearances were revoked as a method of

retaliation for their whistleblower activities.’’ Well, this hearing

today I think is going to make it very clear that cannot possibly

be the case. Not everybody is from CIA, but it seems to me that

we do have people from the CIA that have been retaliated against.

It is almost as if the CIA could not even find out what is going on

in its own organization, let alone what is going on elsewhere

around the world.

So I just wanted to make that comment and join you in my concern that they should be more forthcoming.

Mr. SHAYS. Mr. Kucinich.

Mr. KUCINICH. I am appreciative of the fact that the chairman

brought that letter forward because any of us who have ever dealt

with the CIA understands that letter is lacking in veracity, to put

it mildly. I think that while we are going to have our hands full

today, Mr. Chairman, with the testimony that we are going to receive and evaluate and then issue a report, this letter, Mr. Chairman, offers a whole new possibility for a line of inquiry into the

Central Intelligence Agency and how they are trying to escape

oversight, which they are not free from, by the way.

So I just wanted to say hi. [Laughter.]

Mr. SHAYS. I would ask unanimous consent that the following be

made part of the record: two CRS memoranda concerning the applicability of the Privacy Act to congressional investigative inquiries,

and the Department of Justice IG report of the investigation into

allegations from Michael German.

[The information referred to follows:]

43

44

45

46

47

48

49

50

51

52

53

54

55

56

57

58

59

60

61

62

63

64

65

66

67

68

69

70

71

72

73

74

75

76

77

78

79

80

81

82

83

84

85

86

87

88

89

90

91

92

93

94

95

96

97

98

99

100

101

Mr. SHAYS. I also welcome our distinguished colleague, Representative Curt Weldon from Pennsylvania and ask unanimous

consent that he be allowed to participate in this hearing, and without objection, so ordered.

Mr. Weldon, I don’t know if you have an opening statement before we go to the witnesses, but we would recognize you.

Mr. WELDON. First of all, I thank you and the distinguished

members of the subcommittee and the distinguished ranking member.

I think everyone on this subcommittee signed a letter that I circulated in December, 248 of our colleagues, asking Secretary Rumsfeld to allow witnesses to appear before Congress on Able Danger.

They had tried to stonewall those appearances for several months.

You have one of the key witnesses here before you, Lieutenant

Colonel Anthony Shaffer, who is a decorated veteran, 23-year intelligence officer, who has been involved in the most dangerous areas

of the world, embedded with our troops, and who had information

to offer that could help us understand what happened before September 11th. They went to such great lengths that he was within

2 days of losing not only his pay but his health care for his two

kids and destroying him completely until I, not just with the help

of the 248 Members from both parties, both Steny Hoyer and Roy

Blunt signed the letter, and all of you as well—but Gordon England at DOD on behalf of the Secretary joined in with the new

head of DIA to put Tony back into place so he could testify today

in uniform, and tomorrow he will testify before the House Armed

Services Committee on what is going to be a hearing that is going

to change, I think, the nature of this city.

I am not here to hurt any one administration, but, Mr. Chairman, I would ask unanimous consent to include summaries of

whistleblowers I have worked with over the years: Jay Stewart,

who was the former Director of Intelligence for DOE, had his career destroyed.

Notra Trulock was Director of Intelligence at DOE, testified before the Cox Commission, had his career destroyed.

Dr. Gordon Oehler was Director of Non-Proliferation at the CIA,

made the mistake of telling us the truth, was eased out of his office.

Mike Maloof, Chief of Technology Security Operations Division in

DTRA, has recently had his career destroyed.

Lieutenant Jack Daly, a naval intelligence officer, was lasered in

the eye, and the administration covered up the laser operation by

a Russian ship, had his career destroyed.

John Deutch and Jim Woolsey, both their stories are in here that

summarize what has happened to them.

And as late, Mr. Chairman, as yesterday afternoon, Lieutenant

Colonel Shaffer, who was given the approval to work with DIA to

prepare his testimony for tomorrow, was approached by DIA official

questioning him about what he was going to say, and you can ask

him in his own words, but to me it was a clear effort at intimidating him.

Mr. Chairman, it is extremely important, as someone who works

on defense issues constantly, homeland security and defense, with

my Democrat colleagues in a bipartisan way, that we not let this

102

happen. It has happened in this administration, and it happened

in the previous administration. It should not be acceptable any

time a person simply wants to tell the truth. That is all Tony

Shaffer wanted, to tell the truth, and they were within 2 days of

taking away his health care for his kids and destroying his life.

That is not America, and that is not what this country is about,

and I would hope that you and Ranking Member Waxman would

use your influence to put legislation forward to protect people like

this and simply allowing us to understand the problems that our

Government has.

I also want to acknowledge Sibel Edmonds, who is in the audience, who also played a critical role in helping us understand. She,

too, was a victim of harassment and whistleblowing action.

You know, I could go on and on, but these are the ones I have

been involved with personally, and I submit these for the record.

Mr. SHAYS. Without objection, we will submit those to the record.

[The information referred to follows:]

103

104

105

106

Mr. SHAYS. We are going to get to the panel. I just would like

to make one point. I think both sides of the aisle, at least in this

subcommittee, are very supportive of the effort that was introduced, I think by Mrs. Maloney, to extend the same protections to

those in the intelligence side. That amendment was not approved

in part because some said more information, but the real significant reason was this committee reported out that bill and wanted

to send it to the floor and knew that it would end up in every committee in Congress and never make the floor. So we are going to

try to deal with that issue in a separate way, but we did put in

that bill a requirement that the GAO report back to us on the issue

of intelligence.

So at this time, let me just acknowledge that we have Specialist

Samuel J. Provance from the Department of Army; we have Lieutenant Colonel Anthony Shaffer from the U.S. Air Force; we have

Mr. Michael German from the FBI; we have Mr. Russell Tice from

NSA; and we have Mr. Richard Levernier from DOE. We thank

them all.

I would like them to stand, and we will swear you in, and then

we will get to your testimony.

[Witnesses sworn.]

Mr. SHAYS. Note for the record all five of our witnesses have responded in the affirmative. You have a story to tell, gentlemen, and

we have three panels so we will be a little more strict about the

time. What we will do is when your 5 minutes is up, you will have

another minute to kind of wrap things up, but we would like you

to be done within 6 minutes. If it goes 61⁄2, I am not going to lose

sleep, but we do want your story to be told.

And so we will start with you, Specialist Samuel J. Provance.

STATEMENTS OF SAMUEL J. PROVANCE, SPECIALIST, U.S.

ARMY, DEPARTMENT OF THE ARMY; LIEUTENANT COLONEL

ANTHONY SHAFFER, USAR, SPRINGFIELD, VA; MICHAEL

GERMAN, FORMER SPECIAL AGENT, FEDERAL BUREAU OF

INVESTIGATION; RUSSELL D. TICE, FORMER INTELLIGENCE

OFFICER, NATIONAL SECURITY AGENCY, AND MEMBER, NATIONAL SECURITY WHISTLEBLOWER COALITION; AND RICHARD LEVERNIER, GOODYEAR, AZ

STATEMENT OF SAMUEL J. PROVANCE

Specialist PROVANCE. Thank you, sir. My name is Samuel

Provance, and I am a resident of Greenville, SC. After some years

in college, I enlisted in the U.S. Army in 1998 and sought a specialization in intelligence in 2002. I was drawn to the Army by the

professional training and the good life it promised, but also because

it provided me an opportunity to serve my country.

The Army has stood for duty, honor, and country. In wearing my

country’s service uniform and risking my life for my country’s protection, it never occurred to me that I might be required to be a

part of things that conflict with these values of duty, honor, and

country. But my experience in Iraq and later in Germany left me

troubled by what I saw happening to the Army. I saw the traditional values of military service as I understood them compromised

or undermined. I am still proud to be a soldier and to wear the uniVerDate 11-MAY-2000 11:19 Jul 20, 2006 Jkt 000000 PO 00000 Frm 00114 Fmt 6633 Sfmt 6633 D:\DOCS\28171.TXT HGOVREF1 PsN: HGOVREF1
107

form of the U.S. Army. But I am concerned about what the Army

is becoming.

While serving with my unit in Iraq, I became aware of changes

in the intelligence colleague procedures in which I and my fellow

soldiers were trained. These changes involved using procedures

which we previously did not use and had been trained not to use

and in involving MP personnel in so-called preparation of detainees

who were to be interrogated. Some detainees were treated in an incorrect and immoral fashion as a result of these changes. After

what had happened at Abu Ghraib became a matter of public

knowledge and there was a demand for action, young soldiers were

scapegoated while superiors misrepresented what had happened

and misdirected attention away from what was really going on. I

considered all of this conduct to be dishonorable and inconsistent

with the traditions of the Army. I was ashamed and embarrassed

to be associated with it.

When I made clear to my superiors that I was troubled about

what had happened, I was shown that the honor of my unit and

the Army depended on either withholding the truth or outright lies.

I cannot accept this. Honor cannot be achieved by lies and

scapegoating. Honor depends on the truth. It demands that we live

consistently with the values we hold out to the world. My belief in

holding to the truth led directly to conflict with my superiors and

ultimately my demotion.

I welcome the opportunity to speak to you today and to answer

your questions.

[The prepared statement of Specialist Provance follows:]

108

109

110

111

112

113

114

115

116

117

118

119

120

121

122

Mr. SHAYS. Thank you very much for your testimony and for

being here.

Colonel Shaffer. And would you make sure your mic is closer.

There we go.

STATEMENT OF ANTHONY SHAFFER

Colonel SHAFFER. Mr. Chairman, distinguished members of the

subcommittee, thank you for the opportunity to appear before you

today to offer my comments surrounding the use of the security

clearance system as a method of intimidation and retaliation, and

in my case, the removal of my security clearance based on my protected disclosures of information to the 9/11 Commission and to

Congress regarding Operation Able Danger.

Many of us take seriously our oath of office to support and defend the Constitution against all enemies, foreign and domestic. We

demonstrate our commitment by decades of service to this country

trying to conduct operations to ensure our citizens are protected.

There are officers within the bureaucracy who abandon their

oath of office and instead become focused on a strategy of self-preservation and obstruction of accountability. A culture now exists in

which leaders with this abhorrent set of values are in charge of

large portions of the intelligence community. It was their missteps

before September 11th that materially contributed to our failure to

detect and neutralize the September 11th attacks.

While disclosure of Able Danger information to the 9/11 Commission and to Members of Congress was not the only factor in the

revocation of my clearance, it is my judgment and the judgment of

others that it is the primary reason that DIA made such an obvious, unjustifiable effort to remove and silence me. It is notable that

I have been requested, as Congressman Weldon pointed out, to

speak in front of the House Armed Services Committee to provide

a top secret/full disclosure testimony on the Able Danger operation

tomorrow.

Let me be up front here. I am no Boy Scout. I was not hired as

an intelligence officer because I hang out at the Christian Science

Reading Room. My job is to get information using tried and true

intelligence methodologies, techniques that go back to the dawn of

civilization. I have been trained to take risks, to create high-risk/

high-gain operations, which I did successfully for 20 years.

My awards and accolades have been provided to the subcommittee for your background, and according to my legal counsel, until

I disclosed the Able Danger information, I was a ‘‘rock star.’’ DIA

arbitrary removed me from active intelligence officer status in June

2004, where this process began.

It was in my work as the chief of a DIA special mission task

force back in 1998 that I became involved with Able Danger. My

officers and I were working at the cutting edge of technology and

DOD black operations. Most all of my operations and operational

records remain classified as most of the operations and the capabilities we established are still ongoing and being utilized in the

war on terrorism.

I accepted a recall to active duty after the September 11th attacks, took command of an Operating Base, and deployed to Afghanistan twice. During the deployment to Afghanistan in October

123

2003, I made my first protected disclosure to Dr. Phillip Zelikow,

the staff director of the 9/11 Commission, regarding Able Danger

and the failures of DIA and other DOD elements to maximize the

intelligence information and promise of the project.

I wish to emphasize four key points.

I have made protected disclosures, starting in October 2003, regarding Able Danger, a pre-September 11th operation designed to

identify and conduct offensive operations against al Qaeda. It was

these protected disclosures, first made to the 9/11 Commission, that

I believe is the basis for DIA’s adverse actions against me. I revealed the fact that there were internal DOD and DIA failures regarding September 11th. It was the factor that resulted in the allegations being drummed up against me starting in March 2004.

The three allegations that DIA tried to use against me were first

related to an attempt to thinly veil administrative issues being tied

to the Uniform Code of Military Justice’s criminal issues. There is

a clearly defined process for criminal issues. These allegations

never once grew anywhere close to that level. In addition, they

were never, according to DOD’s personal security guidelines, supposed to be used as clearance adjudication issues. The three allegations used by DIA for the basis of their attempt to end my career

are as follows:

Undue aware of the Defense Meritorious Service medal. DIA

claimed I received an unlawful award unduly, despite the fact the

award was for, amongst other things, Able Danger. I provided classified officer evaluation reports and other supporting documents

showing that the award was due. There was no evidence in the

DIA IG report that I did anything wrong. To the contrary, it

showed I followed the process I was given by the chain of command. I wear the award today on my chest. You can see it. The

Army chose to not take any adverse action against me.

Misuse of a Government phone, the second issue. Misuse of a

Government phone to $67. During the time I was in command of

an operating base where I had access and ran millions of dollars

of equipment and more than a dozen personnel, they did an investigation of my command. The only thing they could find is that over

an 18-month period I would periodically program a Government

phone to forward phone calls to my personal mobile phone so they

could stay in touch with me on weekends, for a charge of 25 cents

for every call forward, accumulated over 18 months.

Mr. WELDON. Where were you?

Colonel SHAFFER. Here in the local area, sir. I ran a base, which

I cannot get into, which was another organization.

Mr. WELDON. It broke down?

Colonel SHAFFER. Yes, sir.

The last issue, filing a false voucher for $180. I attended Army

Command and General Staff School at Fort Dix, NJ, a requirement

for the promotion to Lieutenant Colonel. Despite this being a wholly legal claim for mileage, which DIA processed through their system legally, I was told by the DIA IG that I falsely stated the claim

even though there is clear evidence and I obviously got promoted

to Lieutenant Colonel. They said because there was no expense to

the Government, it was an illegal claim, although I could have easVerDate 11-MAY-2000 11:19 Jul 20, 2006 Jkt 000000 PO 00000 Frm 00131 Fmt 6633 Sfmt 6633 D:\DOCS\28171.TXT HGOVREF1 PsN: HGOVREF1
124

ily filed it on my income tax had it been rejected by the Government.

To summarize the allegations, the total alleged loss to DOD was $250. The DIA Inspector General did falsely and without evidence

make conclusions on the investigation of wrongdoing which could

not be supported.

DIA then took these false allegations, embellished them, and

went about resurrecting allegations which go back to high school,

where I disclosed on a 1986 polygraph regarding some pens. A 1986

polygraph that I disclosed. This was not an investigation. And it

goes back 30 years.

DIA’s allegations were refuted, repeatedly, on three separate occasions: in writing in April 2005, in an oral statement in June

2005, and again in my final appeal in November 2005; all to no

avail. These issues were offered in writing. They have been offered

to the subcommittee in writing so you can review them yourself.

One of the most egregious rejections was they rejected a DSS senior special agent’s statement in writing saying that she had investigated and refuted these allegations prior to 1995.

Despite the Army’s ‘‘clearing me’’ of wrongdoing and promoting

me to Lieutenant Colonel, sorry, let me conclude.

I became a whistleblower not out of choice, but out of necessity.

Many of us have a personal commitment to the truth, and——

Mr. SHAYS. I don’t mean to speed up. Slow down a little bit.

Colonel SHAFFER. OK, sorry. I became a whistleblower not out of

choice, but out of the necessity to tell the truth. The commitment

to defend this country is not only simply going into combat but actually trying to fight the bureaucracy which has slowed us down

in many instances.

I have tried to expose the truth of the September 11th attacks,

which I will hopefully provide more information tomorrow. There

is a need to legitimately hold individuals accountable for their actions or inaction regarding clearances and the security clearance

system. There should be, I believe, an independent IG which looks

at issues and also a ‘‘must issue’’ system which shows some ability

to issue a person a security clearance and retain it as long as there

are no allegations against them and establish, if you will, a list of

penalties for minor indiscretions which could be used objectively for

either an SES or a sergeant, no matter what that is.

Anyway, thank you for allowing me to share with you the information regarding the DIA retaliation against me regarding my disclosures of Able Danger information.

[The prepared statement of Colonel Shaffer follows:]

125

126

127

128

129

130

131

132

Mr. SHAYS. Thank you, Colonel, for your statement. Thank you

both who have testified so far for your service to our military. And

just to say that if you don’t cover anything in your testimony, it

is part of the record. Second, we are going to have extensive questioning of this panel, and you will be able to, I think, cover the

points if you thought you left anything out.

Colonel SHAFFER. Thank you, sir.

Mr. SHAYS. Mr. German.

STATEMENT OF MICHAEL GERMAN

Mr. GERMAN. Thank you. My name is Michael German, and I am

a former FBI special agent. Chairman Shays, Ranking Member

Waxman, Ranking Member Kucinich, thanks for having this hearing, and thanks for inviting me to speak with you today.

Shortly after the September 11th attacks, FBI Director Robert

Mueller made public statements urging FBI employees to report

any problems that impeded FBI counterterrorism operations. He offered his personal assurance that retaliation against FBI whistleblowers would not be tolerated. I listened and obeyed the Director’s

orders. I reported misconduct in a terrorism case, through my

chain of command, as directed. I did my duty. Unfortunately, Director Mueller did not uphold his end of the bargain. Retaliation

was tolerated, accepted, and eventually successful in forcing me to

leave the FBI.

I am here today to tell you about a system that is broken. The

Department of Justice Inspector General’s report on my case provides a rare post-September 11th glimpse into the dysfunctional

management practices that continue to obstruct FBI

counterterrorism operations and continue to allow FBI managers to

retaliate against agents who report their misconduct. But the IG

report is too little, too late. I am here not because I think you can

help me. I am here because your action is needed to fix a broken

system before another terrorism investigation is allowed to fail.

At the time I made my complaint, I had 14 years of experience

as a special agent of the FBI. During my career I twice successfully

infiltrated terrorist organizations, recovered dozens of illegal firearms and explosive devices, resolved unsolved bombings, and prevented acts of terrorism. I had an unblemished disciplinary record,

a Medal of Valor from the Los Angeles Federal Bar Association,

and a consistent record of superior performance appraisals.

In early 2002, I was asked to assist in a Tampa Division

counterterrorism operation that started when a supporter of an

international terrorist organization met with a leader of a domestic

terrorist organization. This January 2002 meeting was recorded by

an FBI cooperating witness as part of an ongoing FBI domestic terrorism investigation. I quickly became aware of deficiencies in the

case, but informal efforts to get the case on track were met with

indifference by FBI supervisors. In August 2002, I learned that

part of the January meeting had been recorded illegally, in violation of Title III wiretap regulations.

When I brought this to the attention of the Orlando supervisor

responsible for the investigation, he told me we were just going to

pretend it did not happen. In 14 years as an FBI agent, I had never

been asked to look the other way when I saw a violation of Federal

133

law. I reported this violation to my superiors, and that is when my

journey in the labyrinth began.

Over the next 2 years, my complaint was passed from my ASAC

to the Counterterrorism Division, to the Tampa Division SAC, to

the FBI’s Office of Professional Responsibility, to the Department

of Justice’s Inspector General, and to the FBI Inspection Division,

none of whom actually initiated an investigation. Instead, FBI officials backdated, falsified, and materially altered FBI records in an

attempt to cover up their mistakes.

Meanwhile, I was removed from one terrorism investigation, prevented from participating in a second terrorism investigation, and

barred from training other agents in the undercover techniques

that enabled me to infiltrate terrorist groups. Retaliatory investigations against me were pursued by FBI inspectors who refused to

divulge the names of my accusers or document their interviews.

For 2 years, I worked within the system to try to get these deficiencies addressed, with no success. My career was effectively

ended. When it became clear that no one would address this matter

appropriately, I chose to report the matter to Congress and to resign from the FBI in protest. Only the public exposure of this matter finally compelled the IG to act. Last month, a full year and a

half after I resigned, 3 years after my first formal complaint to the

IG, and 4 years after these events took place, the IG finally issued

a report of its investigation. That report confirms many of my original allegations: the Tampa Division terrorism case was not properly investigated or documented; the Tampa Division supervisors

failed to address these deficiencies; the only effort Tampa Division

made in response to an illegal wiretapping violation was to place

the tape into the personal possession of the Orlando supervisor

while Tampa managers officially denied that the recording existed.

The IG found that Tampa officials backdated and falsified official

FBI records in an attempt to obstruct the internal investigation of

my complaint.

The IG report details a continuous collaborative effort to punish

me for reporting misconduct by FBI managers, yet the IG only

grudgingly admits that I was retaliated against. An Orlando supervisor justified removing me from one case because I unilaterally

discussed the case with headquarters. A Portland SAC tells his

staff that my participation in a second terrorism investigation is

problematic because I was a whistleblower who requested to speak

to Congress. The unit chief of the undercover unit tells his staff

that I will never work undercover again, yet none of this is considered retaliation. Meanwhile, the FBI managers who backdated, falsified, and materially altered FBI records were given a pass. I hope

you, as Members of Congress responsible for overseeing the Department of Justice, find this unacceptable.

In closing, my odyssey is a clear example of the need for greater

congressional oversight of the FBI and the Department of Justice.

The system is broken. It was broken before September 11th, and

it has not been fixed. This is not a question of balancing security

interests against liberty interests. It is a question of competence

and accountability. Neither security nor civil liberties are protected

when incompetent FBI managers can so easily falsify FBI records

to cover up their misconduct.

134

I would request, in addition to my written statement to the committee, that my written response to the Inspector General’s staff

report be admitted as well.

Thank you.

[The prepared statement of Mr. German follows:]

135

136

137

138

139

140

141

142

[The response referred to follows:]

143

144

145

146

147

148

149

150

151

152

153

154

155

156

157

158

159

160

161

162

163

164

165

166

167

168

169

Mr. SHAYS. Thank you, Mr. German.

Mr. German, I could have closed my eyes, when you talked about

falsification and so on, when we had our hearing about Mr. Salvati,

who was in prison on death row for 30 years because two FBI

agents falsely accused him, knew that he was innocent of the crime

because they knew who committed the crime, but because they

were trying to cover up one of their sources, they let him languish

in prison for 30 years, and his wife visited him every week for 30

years. He is out now. But wouldn’t it have been incredible if someone from the FBI had been a whistleblower then? Thank you for

your testimony.

Mr. Tice.

STATEMENT OF RUSSELL D. TICE

Mr. TICE. Mr. Chairman, distinguished members of the subcommittee, I thank you for having me on the subcommittee as a

speaker. I realize this is Valentine’s Day. I hate to have to give you

another horror story like it would be Halloween, but, unfortunately, that is what I am about to do.

My career started in 1985 by joining the Air Force right after

getting out of college. I worked in the SIGIN field in the Air Force.

From there I became a contractor working SIGIN issues for the

National Security Agency as well as a few other intelligence agencies. From there I became a Government employee intelligence analyst for the Department of the Navy. From there I moved to the

Defense Intelligence Agency as an intelligence officer, and from

there I moved back home—at least I considered it a homecoming—

to the National Security Agency.

In the spring of 2001, I noticed that a coworker—and this was

when I was at DIA—exhibited the classic signs of being involved

in espionage. I liked this coworker. Everyone liked this coworker.

But, nonetheless, the signs were frequent travel to a communist

country, a political philosophy that lent itself that the United

States should not come to the support of a democratic nation

against the communist country, late hours on a classified computer,

living beyond her means, buying a home that she should not have

been able to afford at her GS level. I came to the conclusion that

I would have to report this because ultimately it was my responsibility. The young lady was popular so I kept it very quiet in doing

so. I told none of my coworkers, nor my supervisor that I had done

so.

Well, a few things happened after that. I was contacted by the

DIA counterintelligence officer involved in the case, and he said he

was going to look into it. Shortly after that encounter with the DIA

counterintelligence officer, the mother of the individual who was, I

thought at that time, very high up in DIA, came to our office even

though she was recently retired. I thought this was highly unusual,

and I told the counterintelligence officer that. He ultimately told

me that there was nothing to it. It was a coincidence.

Ultimately, I found out that this woman, the mother, was a lot

higher up than I thought. She was actually a Deputy in the Department of Defense at the Pentagon for Command, Control, Communications and Intelligence. She was also a Principal Deputy Director at the Defense Security Service, and she was high up before

170

that in DISA, the Defense Information Systems Agency. But, nonetheless, I believe to this day that the mother was there possibly to

warn the daughter that something was coming up because it made

no sense that she had showed up. Maybe 2 weeks after that encounter, the DIA counterintelligence officer told me that there was

nothing to my suspicion.

After I returned to the National Security Agency in November

2002, I was involved in the operational intelligence work for the

Iraq war, and we were quite busy, so I really did not have a whole

lot of time to think about what happened before. When things

started winding down at the initial stage of the Iraq situation with

our military forces going in, I had a little bit of time to start reading through some things. One of the things I read through was two

FBI agents in California that had been involved apparently or supposedly swapping counterintelligence secrets for sex with a suspected Chinese double agent. At that time, remembering that ultimately I got blown off pretty quick on my suspicions, I sent an email on a classified system to the individual at DIA—no one else,

just to that individual. Up until that time, no one else knew. At

that point I basically said that the FBI was incompetent in dealing

with counterintelligence measures.

Well, I found out very quickly after that counterintelligence

agent contacted security at NSA, and 2 or 3 days after that, I was

contacted and told that I had to submit to an emergency psychological evaluation. I had just been to my routine psychological evaluation at NSA in preparation for my swap over from DIA back to

NSA and passed with flying colors. So 9 months later, the very

same office is now calling me for my emergency psychological evaluation.

At that time, I was told I was wrong about my suspicions. I also

believe that my phone may have been tapped and that ultimately

later I was being followed by the FBI. I know that to be true because I turned the tables on one of the FBI agents that was following me. I walked up behind him, and he was wearing his service

pistol and his FBI badge on his hip, so there wasn’t a whole lot of

question there.

Nonetheless, I was called for a psychological evaluation, and I

was very quickly determined to be mentally ill, suffering from paranoia. At that point, I went up the chain of command. I even went

to the Deputy Director of NSA, who I just happened to know personally, to no avail. I waited a few months—in the motor pool, by

the way, of NSA was where I was sent. I finally went to Senator

Mikulski and asked her as my congressional representative to help

out. I was told at that point that I was off the reservation or informed that I was off the reservation and I would pay dearly for

doing so.

Mr. SHAYS. Who said that?

Mr. TICE. I was told that by the person that was dealing with

the liaison office, that by doing so I was likely to pay dearly, and

that I was putting my head ‘‘above the radar screen.’’

Mr. SHAYS. OK. Please finish up your statement.

Mr. TICE. Sure. To make things quick, I went to the Merit Systems Protection Board and basically was told the Merit Systems

Protection Board cannot look at the merits of my case as ultimately

171

having my security clearance suspended. I went to the DOD IG.

The DOD IG went to NSA’s IG and allowed NSA to investigate

themselves. Ultimately that report came out against me.

It all turns basically that I was not left with many options. I

have some details. Ultimately it is 17 pages that I would like to

have you read and have submitted to the record. But, nonetheless,

you know, on my way in here, walking by the Supreme Court temple, I notice inscribed in the entrance that it says, ‘‘Equal Justice

Under the Law.’’ In the intelligence community, as an intelligence

employee, there is no equal justice under the law. Whistleblower

protection acts do not apply to us.

Thank you very much.

[The prepared statement of Mr. Tice follows:]

172

173

174

175

176

177

Mr. SHAYS. Thank you, Mr. Tice.

Mr. Levernier.

STATEMENT OF RICHARD LEVERNIER

Mr. LEVERNIER. Thank you for holding this hearing. My name is

Richard Levernier. I worked for the U.S. Department of Energy. I

retired effective January 3, 2006, after being exiled from the DOE

nuclear security community for more than 5 years. I accepted an

early retirement and buyout from the Department of Energy rather

than being paid not to contribute to the national security.

Until August 2000, I was the DOE Quality Assurance [QA] Program Manager for Nuclear Security. My job was to manage a team

of experts that reviewed the security plans for DOE nuclear weapons sites and to identify vulnerabilities before they became national

security threats. Our QA team oversaw the security effectiveness

for the entire nuclear weapons complex. I utilized a team of worldclass experts ranging in spectrum from nuclear engineers to U.S.

Army Special Forces.

My primary duty was to devise ‘‘adversary’’ scenarios and manage force-on-force tests that pitted mock terrorists against the nuclear weapons protective forces. During these tests, there were numerous artificial limits placed on us in terms of conducting the

tests. We were not allowed to surprise the defenders. We had to

schedule the tests in advance. We had to follow speed limits. We

had to follow the OSHA regulations. At many facilities, we were

not even allowed to climb the fences. We had to administratively

progress through the fences.

Despite all of this, the mock terrorists would win more than 50

percent of the performance tests that we conducted. Even the socalled wins were suspect. In the tests where the protective forces

prevailed, many of the tests resulted in 50 percent of greater casualties for the defending forces. Additionally, in many instances the

defending forces, in order to achieve victory, would slaughter hundreds of evacuating employees from the DOE facilities in an attempt to be sure and eliminate the terrorists.

The reason for this abysmal record was ingrained bureaucratic

negligence to a terrifying degree. Four years after September 11th,

plans to fight terrorists attacking nuclear facilities are still largely

predicated on catching the terrorists as they escape. Very little attention has been paid to dealing with terrorists that are suicidal

and plan to make entry into the facility, stay in the facility, create

a nuclear detonation, and are not interested in escaping.

Some of the facilities refused to change their security plans that

post guards so far away from the danger zones that terrorists

would have time to enter and leave before even the fastest responders would arrive. This has been demonstrated in performance tests

over and over again. This is inexcusable. On September 11th, the

United States lost thousands of lives. In a successful terrorist attack on a nuclear weapons facility, there would likely be a loss of

lives in terms of hundreds of thousands of people, much greater in

terms of the consequences.

My testimony is perhaps more relevant today because I illustrate

a long-term pattern of the DOE culture. First, deny there is a problem. Second, refuse to fix the problem. And, third, if the first or the

178

second option does not work, get rid of the messenger, get rid of

the employee, get rid of the manager that is identifying the issues.

DOE has done this. It has been documented in report after report

after report.

Five years ago, DOE management effectively ended my career as

a nuclear security professional by removing my security clearance

and transferred me to unclassified duties. In retaliation for sending

an unclassified IG report to the media, DOE stripped me of my security clearance. It just so happened that the unclassified IG report

validated allegations that DOE managers were forcing people responsible for conducting routine annual security inspections to improve the ratings from less than satisfactory to satisfactory in an

attempt to make sure that the system looked better than it actually

was.

The agency’s primary rationale for taking my clearance was the

fact that I had made an unauthorized disclosure. The U.S. Office

of Special Counsel determined that all of the retaliatory actions

taken by DOE against me were illegal under the Whistleblower

Protection Act [WPA]. As a result of that, the Office of Special

Counsel ordered the Secretary of Energy to conduct an investigation of all the allegations that I had put forward concerning the

problems. However, the Office of Special Counsel and the Whistleblower Protection Act protections for me only went so far as to restore a 2-week employment suspension that I had sustained. It did

not have the ability or the jurisdiction to deal with the loss of my

security clearance.

The impotence of the Office of Special Counsel was further demonstrated just 2 weeks ago when OSC tacitly accepted DOE’s investigative report, which officially insisted that all of the problems

that I identified had been fixed, despite the fact that there were at

least a dozen reports—some by the DOE IG, some by the Government Accountability Office, and some by internal special blue-ribbon panels that had been commissioned by the Department of Energy—that said exactly the opposite.

The chilling effect of DOE’s unlawful retaliatory actions taken

against me has been highly effective. No one at this point in the

Department of Energy, after seeing what had happened to me,

would be willing to come forward under similar circumstances. I

am hopeful that sharing my experiences with Congress will help to

move this body to strengthen the protection for individuals who

blow the whistle on sensitive security issues and in turn create an

environment in which vulnerabilities are addressed rapidly and appropriately.

Thank you very much.

[The prepared statement of Mr. Levernier follows:]

179

180

181

182

183

184

185

186

187

188

189

190

191

192

193

194

195

196

197

198

199

200

201

202

203

204

205

206

Mr. SHAYS. Thank you, Mr. Levernier.

We have Mr. Weldon, who really, given that he is not a member

of this subcommittee, would come last. However, what I am going

to do is I am going to exchange my time with him and give him

my time, and then I will take his time at the end.

Mr. WELDON. Mr. Chairman, I want to thank you again, and I

want to thank——

Mr. SHAYS. And let me state for all Members, we are going to

have 10 minutes so we can get into the issues.

Mr. WELDON. I want to thank Mr. Waxman and Mr. Kucinich

and the rest of the subcommittee members. I am well aware of

their efforts, and I could not think of a more important hearing

that could be held by this subcommittee.

This is my 20th year in Congress, and I have served with both

Republican and Democrat administrations. If we do not fix the

problem of people who have stories to tell that are important for

our security, who simply want to tell the truth, then we are sending a signal to every other employee of the Federal Government not

to speak up. I am not talking about giving away State secrets or

doing things maliciously. I am talking about problems that we need

to understand as elected officials and as agencies to deal with to

improve our ability to respond to concerns.

Now, my focus has been in armed services and homeland security. I serve as vice chairman of both committees, and the people

that I mentioned today, Mr. Chairman, each have a story in their

own right, and I do not have time to go into them all. I would ask

your staff to look at them all. But all of them over the past 20

years have one common thing that has occurred to them: Their

lives have been ruined. In some cases, they have been caused to go

bankrupt. In other words, they have destroyed their professional

stature and credibility. Some have gotten out because they have

taken the signal: It is time for you to leave because, as with Dr.

Gordon Oehler, who was the CIA Non-Proliferation Director, when

he told us that we had the same intelligence that Israel had, Iran

was going to build the Shahab-III missile system with the help of

Russia, he made the mistake of telling us the truth. As a result,

he was railroaded out of his job, and today we all know Iran has

the Shahab-III missile system. But because Gordon Oehler simply

told us and confirmed what Benjamin Netanyahu of Israel was saying at the time, he paid the price.

Now, as a member who oversees defense issues, it really offends

me that our military people that I deal with—and I don’t know the

details of these other cases—would have their careers ruined because they simply want to tell the truth to help us understand

problems in the services. And yet that is what has occurred and,

unfortunately, what continues to occur.

If we allow this to go unchecked, we send a signal to everyone

who wears the uniform, and our military personnel take their oath

seriously when they salute to protect and uphold the laws of the

country and their duty and honor and country seriously. And when

they see us not respond when they tell the truth, that sends a signal to everybody else: Don’t do that because you will suffer the

same fate as, in this case, Tony Shaffer.

207

Mr. Chairman, I want to go through some examples of the outrageous actions of the Defense Intelligence Agency with Mr.

Shaffer, so, Mr. Shaffer, would you answer some questions for me?

In your file, have you received letters of commendation from a

number of DIA Directors? Please name them for me.

Colonel SHAFFER. Sir, over my 10 years at DIA, I received from

Director of DIA Lieutenant General Pat Hughes, Vice Admiral Tom

Wilson, and several of their subordinate officers to include compliments for my three briefings to the Director of Central Intelligence George Tenet, which I think everybody might note it is unusual for a junior field officer to brief the Director of Central Intelligence on his personal—on the operations he is running.

Mr. WELDON. Lieutenant Colonel Shaffer, are you not also the recipient of the Bronze Star?

Colonel SHAFFER. Yes, sir. I received that from my first deployment to Afghanistan in support of both Joint Task Force 180 and

Joint Task Force——

Mr. WELDON. And how long have you served in the military as

an intelligence officer?

Colonel SHAFFER. As an intelligence officer, approximately 22

years, total about 24 years.

Mr. WELDON. Without going into detail, you were embedded in

Afghanistan. Tell us what you can in the unclassified setting of

your role there.

Colonel SHAFFER. The setting, sir, the environment?

Mr. WELDON. What were you doing there?

Colonel SHAFFER. I was overseeing all of DIA’s human intelligence collection operations on the ground going on in Afghanistan

during the period I was there.

Mr. WELDON. You were undercover, under an assumed name?

Colonel SHAFFER. That is correct, sir.

Mr. WELDON. But you had been involved with this program you

called Able Danger, correct?

Colonel SHAFFER. That is correct.

Mr. WELDON. And that was authorized by the chief of the General’s staff, General Shelton?

Colonel SHAFFER. Yes, sir. The chairman of the Joint Chiefs authorized it, yes, sir.

Mr. WELDON. And it was carried out by the Commander of Special Forces, General Schoomaker.

Colonel SHAFFER. Yes, sir.

Mr. WELDON. In the 1999–2000 timeframe.

Colonel SHAFFER. That is the beginning of it, yes.

Mr. WELDON. What was the purpose of Able Danger?

Colonel SHAFFER. As I said in my testimony earlier, sir, it was

to first detect, fix by figuring out where they are all located, and

then go after, using offensive methodology, the structure of al

Qaeda—not bin Laden himself, but the structure, the al Qaeda

mechanisms, cells, etc.

Mr. WELDON. Who was the commander on the scene of Able Danger, and what was his name?

Colonel SHAFFER. Sir, General Peter Schoomaker was Commander of Special Operations Command.

Mr. WELDON. Under him?

208

Colonel SHAFFER. Below him was his J3, General—oh, goodness.

Mr. WELDON. Who was the day-to-day commander, Navy Intelligence?

Colonel SHAFFER. Oh, the day-to-day oversight of Able Danger

was conducted by Captain Scott Philpot. He ran Able Danger day

to day.

Mr. WELDON. An Annapolis grad?

Colonel SHAFFER. Yes, sir.

Mr. WELDON. Still in the Navy?

Colonel SHAFFER. Yes, sir.

Mr. WELDON. About ready to take command of one of our destroyers?

Colonel SHAFFER. The LaSalle, yes, sir.

Mr. WELDON. The LaSalle. In a month or so?

Colonel SHAFFER. Yes, sir.

Mr. WELDON. And he will be a witness tomorrow, but he is testifying in a closed session because he also has concerns.

What did you find out in your work looking at al Qaeda in January 2000?

Colonel SHAFFER. Well, sir, in January 2000, I took a chart that

Special Operations Command requested from the Land Information

Warfare Activity, which linked together the global al Qaeda structure. Within that chart, I observed, and others subsequent to me

did observe as well, Atta, one of the primary hijackers of the September 11th attack. It was that chart which was the basis for the

beginning of work of Special Operations Command to look at the

global al Qaeda infrastructure.

Mr. WELDON. Are you aware there are at least seven other people who testified under oath that they also identified Mohamed

Atta——

Colonel SHAFFER. Yes, sir, I am aware of——

Mr. WELDON [continuing]. Both by name and by face?

Colonel SHAFFER. I am aware of that fact, yes, sir.

Mr. WELDON. In September 2000, what did you do because you

had been working with FBI on some other top secret programs?

Colonel SHAFFER. I was actually requested by the FBI to conduct

a parallel operation which would have assisted them in going after

a European-based terrorist group, which they have since then

eradicated. I will not go into it here.

We attempted, because of my relationship with the FBI special

agents on that project, to broker a transfer of information relating

to the Able Danger project from Special Operations Command to

WFO, Washington Field Office of the FBI here in Washington.

Mr. WELDON. How many times?

Colonel SHAFFER. By my count, three—twice by my deputy, once

by me.

Mr. WELDON. Were the meetings all set up by the FBI?

Colonel SHAFFER. They were set up by the FBI with the WFO office, which oversees the bin Laden investigation.

Mr. WELDON. Did those meetings take place?

Colonel SHAFFER. No, they did not.

Mr. WELDON. Why not?

Colonel SHAFFER. My understanding is they were canceled by the

Special Operations Command legal advisors to the Command.

209

Mr. WELDON. So we had information about the Brooklyn cell of

al Qaeda with Mohamed Atta, and we could not transfer it to the

FBI.

Colonel SHAFFER. That’s correct.

Mr. WELDON. What has Louis Freeh recently said about that information?

Colonel SHAFFER. My recollection of his articles in the open press

is that it is his belief that had we, the Able Danger team, been able

to provide that information regarding Atta and the other members,

ostensible members of the Brooklyn cell, he may well have been

able to use the FBI to prevent the September 11th hijackings.

Mr. WELDON. Now, General Shelton has come out and publicly

said in a recent article that he actually authorized the creation of

Able Danger. Is that correct?

Colonel SHAFFER. December. Yes, sir, he did.

Mr. WELDON. Now, we all—at least I did—supported the creation

of the 9/11 Commission. The 9/11 Commission was supposed to look

at the details leading up to September 11th. You were on duty in

Afghanistan October 2003. Tell us about who went through

Bagram that you were made aware of.

Colonel SHAFFER. I was made aware of Dr. Philip Zelikow, the

staff director of the 9/11 Commission, and three staffers showing

up. They put out word. They requested anyone come forward who

had information regarding any pre-September 11th intelligence.

Mr. WELDON. And you met with him?

Colonel SHAFFER. I was authorized by my chain of command, my

Army chain of command, to meet with him and provide them a secret-level briefing on a project that we now know as Able Danger.

Mr. WELDON. But you made a mistake. What was your mistake?

Colonel SHAFFER. Well, I——

Mr. WELDON. You didn’t call the folks where?

Colonel SHAFFER. I notified DIA upon my return to the United

States of my discussion of Able Danger and the related intelligence

failures.

Mr. WELDON. Were they unhappy?

Colonel SHAFFER. Well, they did not say it outright, but the way

they responded to me after I told them about the disclosure and the

fact that the 9/11 Commission may recall me to testify more was

not pleasant.

Mr. WELDON. So when you got back, you tried to meet with the

9/11 Commissioners because you met with Zelikow, and what did

they say?

Colonel SHAFFER. I contacted them twice in January 2004. The

first time they said, ‘‘We remember you. We will ask you to come

in. Stand by.’’ I did not hear anything back from them for a week.

I call again, and the second time they said, ‘‘We do not need you

to come in now. We found all the information we need on Able Danger.’’

Mr. WELDON. Now, Colonel Shaffer, an article appeared last

week. Dr. Zelikow was interviewed, and he was supported in his

statement by Senator Bob Kerrey, who was a member of the 9/11

Commission. Have you read that article?

Colonel SHAFFER. I have read it, sir, yes.

210

Mr. WELDON. In there Dr. Zelikow said he never met you. What

do you say to that? You are under oath right now.

Colonel SHAFFER. Yes, sir. I did meet with him. I specifically

have a business card he provided me.

Mr. WELDON. Do you have the business card with you?

Colonel SHAFFER. I do not have it on me this moment.

Mr. WELDON. You will present that for evidence tomorrow before

the Armed Services Committee?

Colonel SHAFFER. Yes, sir, I will.

Mr. WELDON. Who gave you that business card?

Colonel SHAFFER. Dr. Phillip Zelikow in a private meeting in

Bagram, where he approached me after my briefing on Able Danger and said, ‘‘What you have said today is very important. We

need to continue this dialog upon your return to the United States.

Please call me.’’

Mr. WELDON. Yet Dr. Zelikow is now saying publicly he never

met you.

Colonel SHAFFER. I find it hard to believe, sir, that he could not

remember meeting me.

Mr. WELDON. When you came back to Washington, your career

started to take a turn for the worse. Am I correct?

Colonel SHAFFER. Yes, sir. The allegations which we have talked

about today were brought up against me.

Mr. WELDON. They pulled your security clearance?

Colonel SHAFFER. Yes, sir.

Mr. WELDON. Mr. Chairman, the lengths they went to with this

man are unbelievable. Let’s talk about the things besides the

charge to—are you aware of what was told by DOD officials, DIA

officials, to Wolf Blitzer and Brian Bennett, both top-rated national

reporters? What did they say about you?

Colonel SHAFFER. Mr. Blitzer, during my stint on his show, ‘‘The

Situation Room,’’ actually told me that DIA or someone in DOD

had put out information regarding me having an affair with someone on your staff and related allegations that somehow I was not

being honest in presenting the information regarding the September 11th——

Mr. WELDON. Have you ever had an affair with anyone from my

staff, male or female?

Colonel SHAFFER. No, sir, not remotely anytime.

Mr. WELDON. But that was what DIA said.

Colonel SHAFFER. They were alluding to DIA putting this out,

yes, sir.

Mr. WELDON. And you also got a letter from DIA in September

taking away permanently your security clearance, correct?

Colonel SHAFFER. That actually came in November after we appealed, but yes, sir, they did.

Mr. WELDON. And they said you would never have access to any

classified documentation again.

Colonel SHAFFER. That was the intent, to remove both my top secret and collateral secret clearance, which means I would have no

access.

Mr. WELDON. Did you receive a box from DIA several weeks

later.

Colonel SHAFFER. I received a total of seven boxes from DIA.

211

Mr. WELDON. What was in those boxes?

Colonel SHAFFER. Not only was there a GPS, Government-owned $400 GPS and related software, there was a total of five classified

documents which they had not removed.

Mr. WELDON. So DIA, after telling you your security clearance

was removed, sent you five classified documents.

Colonel SHAFFER. According to my understanding of the law, it

is a violation by sending someone classified information via the

mail who is not authorized to receive it.

Mr. WELDON. Was there also mail in there from other employees

of DIA?

Colonel SHAFFER. There was a year’s worth of mail from some

unknown employee to include bank statements and a check.

Mr. WELDON. Was there Federal property in there that did not

belong to you that they sent you?

Colonel SHAFFER. As I mentioned, there was a GPS valued at

over $400, and my estimate was there were about $600 worth of

Government material, which is well in advance of the $250 I was

accused of wrongly acquiring.

Mr. WELDON. Was there not also a bag of pens, U.S. Government

pens in there?

Colonel SHAFFER. There was a bag of 20 U.S. Government pens.

Mr. WELDON. And what had they accused of publicly that you referred to earlier of having taken—and I believe it was when your

father worked for one of our——

Colonel SHAFFER. The U.S. Embassy. Yes, sir, I——

Mr. WELDON. Your father worked for the U.S. Embassy. And

what did DIA go to the length to accuse you of?

Colonel SHAFFER. Of taking Government pens while I was 13

years old to use in high school and give them to my friends.

Mr. WELDON. They accused this man of taking Government pens

when he was 13 years old as a part of their official effort to destroy

him, and then they sent him a bag with 20 pens in a box after they

removed his security clearance.

Colonel SHAFFER. Skilcraft pens clearly marked as U.S. Government pens.

Mr. WELDON. Mr. Chairman, these agencies are out of control.

These things would be humorous, except you are talking about a

man’s life.

How close were you to having the benefits taken away from you

and your kids?

Colonel SHAFFER. Within days, sir. As a matter of fact, we

thought the paperwork had already moved forward before Under

Secretary of Defense England was able to intercede.

Mr. WELDON. Because you did what? What was your crime?

Colonel SHAFFER. Sir, as far as I can tell so far, based on the fact

we have been able to refute the allegations against me, it is because I spoke up and tried to tell the truth regarding pre-September 11th intelligence.

Mr. WELDON. You told the truth.

Colonel SHAFFER. Yes, sir.

Mr. WELDON. Mr. Chairman, if we don’t——

Mr. SHAYS. With that, we will end on that.

Mr. WELDON. If we don’t take action, we are all in trouble.

212

Colonel SHAFFER. Thank you, sir.

Mr. SHAYS. I thank Mr. Weldon for his questions. Thank you for

your responses.

Colonel SHAFFER. Thank you, sir.

Mr. SHAYS. We gave Mr. Weldon an extra 2 minutes, so he had

12, and Mr. Waxman, you have 12 minutes.

Mr. WAXMAN. Thank you very much, Mr. Chairman, for your

fairness. I do not know if I will take the full 12, but I do want to

pursue some questions, and I want to start with Sergeant

Provance.

I have gone through your detailed written statement. Your oral

statement was fairly brief. And the abuses you reported are really

shocking to me. It is also very troubling that the Pentagon’s investigation seemed designed to ignore the evidence that could point to

the higher-ups.

Let me first ask you about some of the abuses you tried to report.

We have heard accounts of detainees being humiliated and forced

to wear women’s underwear. We have also seen the horrible pictures of detainees stripped naked, wearing hoods, and chained in

barbaric positions. This was all at Abu Ghraib.

Can you tell us whether interrogators you knew used these techniques?

Specialist PROVANCE. Yes, sir, every interrogator I spoke to

would confirm these kinds of things. My job as a system administrator at the prison allowed me to speak to various, interrogators

and analysts at their work stations, troubleshooting their computers or, you know, setting their computers up. From day one it was

a very intriguing operation, and I wanted to know what it was like

to be an interrogator and exactly what they were doing.

Mr. WAXMAN. How common were these practices at Abu Ghraib?

Specialist PROVANCE. As far as nakedness and the use of dogs

and using loud music, starvation, and what-not, those were considered normal. These things were said to me as something they did

commonly.

Mr. WAXMAN. I noticed in your written testimony there were a

lot of names of officials whose names were redacted. Were these

names of officials who were involved in these practices? And who

blacked out these names?

Specialist PROVANCE. I would have to take that statement by

statement, sir, but the Department of Defense had those redacted

sir.

Mr. WAXMAN. OK. I have an article here dated May 20, 2004,

from the Sacramento Bee. It quotes General Richard Sanchez denying that he authorized sexual abuse, sleep deprivation, dietary manipulation, the use of dogs, or stress positions. Are you saying that

these tactics were authorized?

Specialist PROVANCE. General Sanchez came to the prison on different occasions, and at the prison these very measures themselves

were put on a sign that was as big as a billboard inside the Joint

Interrogation and Debriefing Center [JIDC], as it is referred to.

And if anybody of any importance came to the prison, the one place

they would come is the JIDC, which was a singular building and

not, you know, sprawling over the prison. I know he came to this

facility. So if he saw this billboard, which actually clearly states

213

that they would need his approval if used, if he did not approve of

them or if he did not even see them as something to ever approve,

I think he would have had a problem with it within, you know,

that very minute and had this board removed.

Mr. WAXMAN. How big was this billboard?

Specialist PROVANCE. It was bigger than this television, sir.

Mr. WAXMAN. And on the billboard it said?

Specialist PROVANCE. Well, on the left side it had the traditional

names of approaches for interrogators that are considered textbook.

Then to the right side you had the extra measures, which had to

do with the use of dogs and dietary and environmental manipulation.

Mr. WAXMAN. So it was all written out very clearly on a billboard

at the facility?

Specialist PROVANCE. Yes, sir. And not only that, but just as

when Red Cross came to visit and they had seen a lot of the things,

such as the nakedness, that they clearly had disapproval of, I don’t

see them hiding these things from him more than they did for the

Red Cross.

Mr. WAXMAN. Let me ask you about another abuse. We have

press reports about interrogators who used the children of detainees to break the will of their parents. Did you receive any information about cases like this?

Specialist PROVANCE. Yes, sir, I did. The one interrogation I was

a part of involved a 16-year-old son of a general whom they said

had already been broken.

Mr. WAXMAN. An Iraqi general?

Specialist PROVANCE. Yes, sir. I was the analyst and security for

this interrogation, and just based on the questions alone, as well

as his answers to these questions, he had nothing to do with anything directed against, you know, American soldiers. So he was not

a suspect in any way, shape, or form. And the interrogation itself

had to do with just asking him things he had heard. You know, so

the only crime, as it were, that he may have committed was just

being the son of this general, but as I——

Mr. WAXMAN. What did they do with his son?

Specialist PROVANCE. Well, as I came to find out, sir, originally

we were going to interrogate the general, but we were told he had

already been broken. And the interrogator was told he had been

broken by using his son, you know, by splashing cold water on him,

and it was very cold at the time itself, and driving him around in

the back of Humvee, placing mud upon him, and then having his

father thinking that he is going to see his son, you know, was allowed to see him in the state, and then that is what broke the general.

Mr. WAXMAN. Had the child done anything wrong?

Specialist PROVANCE. No, sir. No, sir. And actually tried to plead

his case because he was in the general population where the MPs

had already told me the detainees were raping each other and——

Mr. WAXMAN. Was there any legitimate reason to keep him in

prison?

Specialist PROVANCE. No, sir.

Mr. WAXMAN. Do you think this practice was repeated with other

children?

214

Specialist PROVANCE. I don’t see why it would not have been, sir.

It wasn’t something they were trying to keep quiet about or even

said to keep secret.

Mr. WAXMAN. Were people bragging about using children to

break the parents?

Specialist PROVANCE. No, sir.

Mr. WAXMAN. They were not bragging about it, but they commented that they had used children?

Specialist PROVANCE. Yes, it was just given as an explanation.

Mr. WAXMAN. Your testimony has some other examples. A prisoner forced to use an MRE bag as a loincloth, guards having latenight parties with Robitussin and Vivarin pills, and female interrogators who got a thrill out of humiliating male prisoners.

What is amazing is that it seems like everybody knew about it.

Nobody was surprised when those pictures came out. Is that what

you are saying, that people seemed to know about these practices?

Specialist PROVANCE. Yes, sir.

Mr. WAXMAN. Let me turn to your attempts to report these

abuses through your chain of command. You were interviewed on

May 1, 2004, by General Fay. In your testimony, you say he did

not want to hear about abuses by military intelligence. What happened when you tried to tell him about the involvement of intelligence officials?

Specialist PROVANCE. After basically forcing my testimony on

him that had nothing to do with his prior questioning, he pulled

out my original CID statement from January 2004 and quoted me

saying where I was glad that there was an investigation and saying, you know, because of what was going on was shameful at the

prison. And after reading this back to me, he then says he is going

to recommend administrative action against me. So, you know, the

feeling I got—I mean, his whole mood and demeanor had changed

at this time and——

Mr. WAXMAN. He was asking you questions about something else,

but you volunteered this information because you thought he ought

to know about it. Is that right?

Specialist PROVANCE. Yes. He had only asked about the MPs and

the photographs and anything that I had explicitly seen. But I

tried to volunteer information of, you know, things that I had

heard from not just rumor but from the participants themselves.

And he clearly——

Mr. WAXMAN. So he was doing an investigation about the reports

about Abu Ghraib?

Specialist PROVANCE. Yes.

Mr. WAXMAN. Reports about prisoner abuse, but when you talked

to him about intelligence officials being involved, he did not—he reacted in a very negative way.

Specialist PROVANCE. Yes.

Mr. WAXMAN. Did he ask questions to find out more?

Specialist PROVANCE. No, he didn’t. He just said, ‘‘Tell me what

you’’—you know, ‘‘tell me what you have heard.’’ And so I told him,

and his assistant documented it. But he didn’t ask me anything on,

you know, what I had said.

Mr. WAXMAN. What was your impression? Did you think he was

trying to keep you quiet?

215

Specialist PROVANCE. Yes.

Mr. WAXMAN. So when you were contacted by the press and

asked for your views on the investigation, you went ahead and

talked to them. Was the interview with General Fay the tipping

point for you? Did it change things in your view?

Specialist PROVANCE. Yes, it did. By that time I had already tried

to tell them what was going on, and I got the impression that they

didn’t—they weren’t going to act on that. They weren’t going to do

with that, and that anything that I had to say was just going to,

you know, be avoided or ignored. And the only persons at that time

I felt really wanted to do anything about it was the media. And

they had already been wanting to talk to me for quite a while, and

that was the only avenue I felt I had.

Mr. WAXMAN. You did not see any use in talking to General Fay

or other people in the military because they were not receptive to

the information? Is that what you are telling us?

Specialist PROVANCE. Yes, sir.

Mr. WAXMAN. Your security clearance was suspended. Was it

suspended for disclosing classified information, or was it suspended

for talking to the press about unclassified information?

Specialist PROVANCE. It was suspended for disobeying the order

to not speak about Abu Ghraib to anybody.

Mr. WAXMAN. Did you reveal any classified information?

Specialist PROVANCE. No, sir.

Mr. WAXMAN. OK. Your commanders issued a written order directing you not to talk to the press about what you saw at Abu

Ghraib, regardless of whether it was classified or not. But in your

statement you say that you could not find anybody else who got an

order like that. Why were you the only one who got a written gag

order?

Specialist PROVANCE. Because I think everything I had to say

was contrary to what the prosecution was trying to get everyone

to—you know, basically the theory is that this was the work of a

few bad apples, it is only these MPs and these photographs on this

night when these photographs were taken. And, you know, I would

say it wasn’t just these few people, that it was the whole operation.

Mr. WAXMAN. Do you know of anybody else who got a gag order?

Specialist PROVANCE. No, sir.

Mr. WAXMAN. Let me go back to that article I talked about in the

Sacramento Bee from 2004. The story quotes you as reporting

abuses, but it also quotes General Sanchez denying that he authorized these tactics. Clearly, General Sanchez did not receive a gag

order like yours. So the bottom line is you can talk about an ongoing investigation as long as you deny wrongdoing, deny that abuses

take place, deny that the abuses were directed by higher-ups; but

if you take the opposite view, you are banned for speaking out. Is

that a conclusion that one could reach? Because he did not get a

gag order for his reports to the press.

Specialist PROVANCE. Yes, sir.

Mr. WAXMAN. I would like to request the Chair’s indulgence for

just 30 seconds more to close out this line of questions. Sergeant

Provance, you flew all the way from Europe to be here today, and

I have a short video clip I would like to play to get a reaction. This

216

is from a speech by General Pace, the chairman of the Joint Chiefs

of Staff, on December 1, 2005. I wonder if we can roll the clip.

[Videotape played.]

Mr. WAXMAN. So that clip pretty much illustrated that the General, head of the Joint Chiefs of Staff, is urging you and others in

the military and come back home and tell people what is really

going on Iraq, but you were singled out and specifically ordered not

to do that. So I would like to ask you: In your personal opinion,

do you think the military has adequately investigated the abuses

at Abu Ghraib?

Specialist PROVANCE. No, sir.

Mr. WAXMAN. Do you think there was a coverup?

Specialist PROVANCE. Yes, sir.

Mr. WAXMAN. Mr. Chairman, I just want to make a request of

you. I know our staffs spoke about this before the hearing, so I

wonder if you would be willing to join me in a document request

related to Sergeant Provance’s testimony today. In my opinion,

there are two areas the committee should investigate further: First,

I think we should examine some of the substantive reports Sergeant Provance made particularly regarding the extent to which innocent children would be used as part of the interrogation process.

And, second, I think it makes sense to investigate the circumstances surrounding Sergeant’s Provance’s gag order and disciplinary action. I would like to ask you if you would join with me

in making a document request on these issues.

Mr. SHAYS. First, I would be delighted to work with you on this

issue and to make whatever requests we need to.

I just want to say to you, Specialist Provance, it takes a tremendous amount of courage with your rank to tell a General what they

may not want to hear, and people like you will help move our country in the right direction. And so this full committee thanks you

for what you have done.

If I could just ask this question, because I want to make sure the

record is clear so we do not have pushback from the military. When

you were meeting with General Fay, you were telling him things

he did not ask you. Was he at all inquisitive about the terrible

things you were seeing and wanting to learn so that he could hold

those accountable who were doing it and to be aggressive in an investigation? That is kind of the thing that I want to make sure we

are clear on before you leave?

Specialist PROVANCE. Are you asking if he was asking me questions about what I was volunteering?

Mr. SHAYS. No. I do not want to know about what you were volunteering. I mean, that is important, too. What I want to know is

you were telling him things that you had seen that he did not seem

to know about. Did he want to know more so that he would be better educated about the things that you knew just in the course of

your being there?

Specialist PROVANCE. No, sir.

Mr. SHAYS. OK.

Specialist PROVANCE. The only feedback I got was administrative

action.

217

Mr. SHAYS. So he seemed more concerned about what you might

tell people, not the information that you had that might help him

understand the abuses that went on in Abu Ghraib. Is that correct?

Specialist PROVANCE. Yes, sir.

Mr. WAXMAN. Mr. Chairman, I just want to thank Sergeant

Provance for his testimony. It takes a great deal of courage, but

that is true of all of the witnesses that are here today, and they

speak for themselves, but for others as well. And when they do

that, when they are whistleblowers, when they come forward and

speak truth to power, we ought to be protecting them, especially

when they are being discriminated against and losing their jobs, in

effect, their ability to get classified information, which is tantamount to reducing them in their stature and ability to continue in

their careers.

Thank you very much for the extra time.

Mr. SHAYS. Thank you.

The Chair at this time would recognize Mr. Duncan.

Mr. DUNCAN. Well, thank you, Mr. Chairman, and thank you for

once again calling a hearing on a very, very important topic.

Specialist Provance, you said in your testimony that you saw superiors scapegoating young soldiers and also trying to misdirect attention or direct attention away from what was really going on. I

just want to get clear on that. Do you mean that superiors, even

after some of these abuses came out, they were still trying to deflect attention away or keep doing what they were doing? Second,

what to your mind was the worst example of scapegoating of a

young soldier. I am not talking about what you thought were the

worst abuses of the prisoners, because we have had a lot of publicity about that, but I am more interested in what in your mind what

the worst example that you can think of of a scapegoating of a

young soldier specifically.

Specialist PROVANCE. Going to the first part of the question,

throughout this whole order, the only people that have been

charged or convicted are young soldiers. My own brigade commander testified as being at the scene of a murder saying, ‘‘I am

not going to go down for this alone,’’ and all he got was an Article

15. An MP stepped on a detainee’s fingers, and he spent time in

prison. Maybe that even answers both parts of your question, sir.

Mr. DUNCAN. OK. Well, did you see some of these abuses continue even after there had been big worldwide publicity about what

was going on?

Specialist PROVANCE. I was already redeployed back to Germany

by the time the scandal had come out, sir.

Mr. DUNCAN. Based on what you have heard since that time, do

you think it is fair or accurate to say, as many people have, that

we treat our prisoners better than probably any other country

would?

Specialist PROVANCE. I wouldn’t be educated enough to answer

that, sir.

Mr. DUNCAN. You wouldn’t know that. All right. Thank you very

much.

Colonel Shaffer, in another subcommittee of this committee,

about a year and a half ago, we heard David Walker, who was then

the Inspector General of the Defense Department—he is now the

218

head of the GAO—he testified that the Pentagon or the military

had lost $9 billion over in Iraq, just lost it, couldn’t account for it

at all, and that another $35 billion had been misspent. That is $44

billion, with a B.

Colonel SHAFFER. Yes, sir.

Mr. DUNCAN. And they came after you and did all this to you for a little $250. Is that correct?

Colonel SHAFFER. That is accurate, sir, yes. And I believe that in

the end, when the DOD IG completed the investigation, it will be

found that I was due that money all along.

Mr. DUNCAN. Have you known of other people in your 24 years

in the military that have turned in similar expense accounts or

even inflated expense accounts, and do you think it would be an

accurate statement to stay that if they wanted to, they could come

after almost anybody in the military, if they really wanted to, for

similar type of trumped-up charges?

Colonel SHAFFER. Sir, if I can answer that in general, yes, there

have been stories amongst my colleagues of the fact that if they

really want to come after you, they are going to find something,

something somewhere. And since I had just completed a command

of an operating base, which is essentially a Colonel-level responsibility—I had millions of dollars of equipment that I was responsible for—a lot of things can go wrong. I was truly shocked when

they came after me for $67 of phone charges, which I would have

gladly paid. But the answer is, yes, they will look at vouchers, they

will look at activities. One of the big things DIA does is go after

people for timecard fraud. They will try to find a way to trick you

into putting in the wrong time, and then come after you on that

very issue.

Mr. DUNCAN. All right. Thank you.

Mr. German, I had an uncle who many years ago spent a few

years as an FBI agent before he became a lawyer and a judge, and

he always had tremendous respect for the FBI, as did everybody

in our family.

Mr. GERMAN. As do I.

Mr. DUNCAN. But about 3 years ago or so, in this committee we

we had a hearing or hearings about the FBI in Boston putting a

man who had four small children into prison for more than 30

years for a murder that they knew he did not commit because they

did not want to blow the cover of one of their informants. After I

heard all that, which I thought was one of the most horrible abuses

I had ever heard of, I became convinced that a Federal bureaucracy

can justify or rationalize almost anything. The man did finally get

out, but it is just horrible to think of.

You say in your testimony that you had your superiors, high-up

FBI officials, who backdated and falsified and materially altered

your records?

Mr. GERMAN. Those are actually the findings of the Department

of Justice Inspector General, so it is not just my opinion. That is

what they found.

Mr. DUNCAN. Those are really fancier ways, I guess, of saying

that they produced lies.

Mr. GERMAN. They produced false documents and——

Mr. DUNCAN. About you.

219

Mr. GERMAN. And also materially altered, literally took Wite-Out

and altered FBI records to thwart the internal investigation.

Mr. DUNCAN. Is it fair to say that shocked you?

Mr. GERMAN. Absolutely it shocked me. Like I said, in 14 years

in the FBI I had never come across anything remotely similar to

this. And even the original Title III violation was something that,

you know, I thought as soon as I reported would be immediately

dealt with. And when the supervisor suggested that we were just

going to pretend it did not happen, I was shocked.

Mr. DUNCAN. Has anything been done to any of these people?

Mr. GERMAN. They have been promoted, some of them.

Mr. DUNCAN. They have been promoted?

Mr. GERMAN. Absolutely.

Mr. DUNCAN. Mr. Tice, when you were hired into the National

Security Agency, were you give any guidelines or instructions or

any encouragement about reporting waste or fraud or abuse?

Mr. TICE. Sir, there is a general policy at NSA that you report

waste, fraud, and abuse. As far as connecting it with the Intelligence Community Whistleblower Protection Act or any whistleblower protection, the answer is no.

Mr. DUNCAN. All right. Mr. Levernier, you have a quote from a

report in your testimony that says, ‘‘At the birth of DOE, the brilliant scientific breakthroughs of the nuclear weapons laboratories

came with a troubling record of security administration. Twenty

years later, virtually every one of its original problems persists.’’

That was a report issued in June 1999, which is 61⁄2 years ago,

closing in on 7 years.

What would you say about that report today? Would you say it

is still accurate, or would you say that a great deal of improvement

has occurred in that last 61⁄2 to 7 years?

Mr. LEVERNIER. In my opinion, the report is still accurate, and

more than just my opinion, the independent review that the Department of Energy’s National Nuclear Security Administration

commissioned, which was chaired by retired Admiral Mies, U.S.

Navy, came out and in its introduction comments referred to the

report that you are talking about, the 1999 President’s Foreign Intelligence Advisory Board Report, and said that not much had

changed from 1999 until May 2005, when the Mies report was

issued. So it is not only my opinion that very little changed, but

DOE’s own internal independent review of the management structure within the security programs in the Department had the same

conclusion.

Mr. DUNCAN. Well, I have a large number of people waiting on

me in my office right now, and they have been there for a while.

But I wanted to hear as much of your testimony as I could, and

I simply want to thank each of you for coming forward with your

testimony and for being witnesses here today. Thank you very

much.

Thank you, Mr. Chairman.

Mr. SHAYS. I thank the gentleman.

Mr. Kucinich.

Mr. KUCINICH. Thank you very much, Mr. Chairman. I would

like to ask some questions of Mr. Tice.

220

Mr. Tice, there has been a lot of attention recently focused on a

classified NSA program to eavesdrop on American citizens who call

or receive calls from overseas. Many of the people in this room

would be familiar with a New York Times story of December 15th

that says in the first paragraph, ‘‘Months after the September 11th

attacks, President Bush secretly authorized the National Security

Agency to eavesdrop on Americans and others inside the United

States to search for evidence of terrorist activity without the courtapproved warrants ordinarily required for domestic spying, according to Government officials.’’ And with unanimous consent, I ask to

submit this story for the record.

Mr. SHAYS. Without objection, so ordered.

Mr. KUCINICH. Mr. Tice, are you familiar with that story?

Mr. TICE. I am, sir.

Mr. KUCINICH. A story that ran on January 12th out of mtv.com

says, ‘‘President Bush has defended his orders allowing the NSA to

eavesdrop on e-mails and phone conversations from what he described as a small number of Americans with known ties to al

Qaeda without obtaining proper warrants.’’

Now, everyone agrees that intercepting calls from Osama bin

Laden or other al Qaeda terrorists is a national security priority.

But outside the Bush administration, there is a great concern that

the NSA program violates the Foreign Intelligence Surveillance

Act. The President is here saying that this policy of wiretapping

without warrants affects a small number of Americans.

Based on your understanding of the program, which now is a

matter of public record, would you say that statement by the President of the United States that it only affects a small number of

Americans is true?

Mr. TICE. Congressman, I cannot specifically say how NSA does

its work or not. I could potentially do that in closed session,

but——

Mr. KUCINICH. Did you say that the number of Americans who

might be subject to eavesdropping by the NSA could be in the millions?

Mr. TICE. I said if a broad-brush approach was used in that collection, then it very easily could be in the hundreds of thousands,

if not millions, yes, sir.

Mr. KUCINICH. You have been mentioned as a source for the New

York Times article that revealed the existence of a secret NSA program, but as I understand it, you didn’t work on the program. Is

that correct?

Mr. TICE. No, sir, I did not work on the program specifically.

Mr. KUCINICH. In your discussions with the New York Times, did

you reveal any classified information?

Mr. TICE. No, I did not, sir.

Mr. KUCINICH. What did you provide them with?

Mr. TICE. Technical information that would be possible to gain

from any communications specialist in the private sector.

Mr. KUCINICH. Although you were not involved in the NSA program, you stated that you were involved in others. You also stated

that you have grave concerns about the legitimacy and the legality

of these other NSA programs. Is that correct?

221

Mr. TICE. That is correct, sir. I was involved in what is called

special access programs, which are very closely held, that at some

point I would like to talk to Congress about.

Mr. KUCINICH. Are those considered generally ‘‘black operations?’’

Mr. TICE. We refer to them as ‘‘black world operations and programs,’’ sir.

Mr. KUCINICH. Now, we understand that in this particular open

setting, Mr. Chairman, we cannot discuss classified information.

But can you characterize generally how important you believe it is

for Congress to know about this program and your particular concerns?

Mr. TICE. Sir, are you referring to the program that the President has already mentioned or some of the other things that specifically I would like to talk about?

Mr. KUCINICH. Well, we are talking about either one, but let’s get

into this. You know, the President talked about one type of program that he maintains is a small-scale program. Comments have

been made by you that suggest that maybe there is a program

going on that affects millions of Americans. So I guess the question

is: We know about one program now. Is it possible that there are

other programs out there that could conceivably be affecting millions of Americans with respect to warrantless wiretaps?

Mr. TICE. Sir, to go into detail would probably put me underwater here, but I can say that some of the programs that I worked

on I believe touched on illegalities and unconstitutional activity.

As far as connecting with the information we know about the

program that has been talked about in the press and ultimately

confirmed by the President, I can only make a tertiary connection

with what ultimately I would like to talk about to Congress.

Mr. KUCINICH. Let me ask you, we know that you have approached Congress about this. You sent a letter to the Intelligence

Committee, and you made it clear that you wanted to discuss your

concerns in a classified setting. Is that correct?

Mr. TICE. That’s correct, sir.

Mr. KUCINICH. But the NSA sent a letter blocking you from talking to the Intelligence Committee. Is that right?

Mr. TICE. They said that the Intelligence Committee were not

cleared at the proper security level for what I wanted to tell them.

Mr. KUCINICH. So the NSA said no members or staff on the Intelligence Committee are authorized to hear what you have to say.

Mr. TICE. That’s correct, sir.

Mr. KUCINICH. No members or staff, correct?

Mr. TICE. That’s correct.

Mr. KUCINICH. Now, Mr. Chairman, from our research and from

our discussions with other committees and directly with the NSA,

we believe that the program Mr. Tice was involved in is not under

the Intelligence Committee’s jurisdiction at all. In fact, it appears

to be under the jurisdiction of the Armed Services Committee, in

which case our committee can also have jurisdiction. In one way,

this highlights how difficult it is for national security whistleblower. Mr. Tice is an intelligence official, so he naturally came to

the Intelligence Committee. How is he supposed to know the ins

and outs of congressional jurisdiction. But as it currently stands

222

today, nobody in Congress has heard Mr. Tice’s information despite

his careful and insistent efforts to inform them.

Now, Mr. Chairman, you know, given this maze of bureaucracy,

I wonder whether or not you would join with me in writing to both

the Intelligence Committee and the Armed Services Committee regarding Mr. Tice’s case. If they are not willing or able to hear this

information, then I believe that we should do so. I mean, we could

even subpoena Mr. Tice to compel him to appear in a classified setting, but before we get to that point, I am just wondering if you

would be willing to join with me in writing to the other committees.

Mr. SHAYS. Do I get to write the letter?

Mr. KUCINICH. Of course.

Mr. SHAYS. No, I am teasing. We had talked about this a bit earlier because it is my understanding that there are folks on the

Armed Services Committee who have clearance to hear about this

program, but not the Intelligence Committee. If that, in fact, is

true, that is a shocker to me because I have always believed that

the Intelligence Committee trumps all other committees in terms

of anything to do with intelligence. If we are finding now that there

are things the Intelligence Committee does not know but the

Armed Services Committee does, that is a surprise.

In theory, this committee has jurisdiction over intelligence as

well, and whenever we ask for anyone, for instance, from the CIA

to come to testify before this committee, they get a permission slip

from the Intelligence Committee saying they do not have to attend.

So I am eager to pursue this issue with you, Mr. Kucinich, and we

will pursue it.

Mr. KUCINICH. I just have a few more points. Thank you, Mr.

Chairman.

It was very shocking to many Americans to know that their Government was conducting warrantless wiretaps. It is even more

shocking to see assertions that eavesdropping by the NSA could be

‘‘in the millions if the full range of secret NSA programs is used.’’

That from an ABC News article by Brian Ross of January 10, 2006,

regarding discussions with yourselves.

Is it your belief that it is an urgent matter relating to the protection of the Constitution of the United States that Congress obtain

information to determine the full scope of the eavesdropping going

on in this country?

Mr. TICE. Yes, sir. As a matter of fact I have NSA’s policy in

front of me that basically NSA tells its own people, you will not do

this, ultimately, ‘‘the policy of the USSS, the U.S. Signals Intelligence Service, is to target or collect only foreign communications.’’

Mr. KUCINICH. Do you believe our Constitution is at risk because

of widespread wiretapping?

Mr. TICE. Ultimately, domestically, I have the fourth amendment

in front of me. The answer is yes, sir.

Mr. KUCINICH. You have the fourth amendment in front of you?

Mr. TICE. Yes, I do, sir.

Mr. KUCINICH. Do you want to read it?

Mr. TICE. Sure. ‘‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no warrants shall issue, but

upon probable cause, supported by oath or affirmation, and particuVerDate 11-MAY-2000 11:19 Jul 20, 2006 Jkt 000000 PO 00000 Frm 00230 Fmt 6633 Sfmt 6633 D:\DOCS\28171.TXT HGOVREF1 PsN: HGOVREF1
223

larly describing the place to be searched, and the persons or things

to be seized.’’

Mr. KUCINICH. Do you believe in that fourth amendment?

Mr. TICE. Yes, sir. As a matter of fact, as an intelligence officer,

we are required to raise our hand and swear an oath to protect and

support the U.S. Constitution.

Mr. KUCINICH. You have taken an oath to support the Constitution of the United States, and am I correct that it is in that spirit

consistent with the oath that you have taken that you have approached Congress and asked for an opportunity to meet with

Members of Congress in a classified session so that you can discuss

with them your belief that the Constitution itself is being put at

risk with regard to domestic eavesdropping and the scope of it?

Mr. TICE. Partially, sir. Most of what I want to talk to Congress

about is not directly related to what you know about right now.

Mr. KUCINICH. Well, obviously it is not because it would be in a

closed session.

Mr. Chairman, I would like to submit for the record a number

of articles that relate to this case, and I think that it is important

that Mr. Tice has come forward.

One final question. Has the Justice Department contacted you in

connection with its investigation of the so-called leak of information

that has resulted in a hunt for those who are responsible for informing the New York Times of this previously clandestine domestic eavesdropping matter?

Mr. TICE. About 21⁄2 weeks ago, I was approached by the FBI.

They came to my home, and they said they wanted to talk to me.

Knowing the witch hunt that is going on right now at NSA, I told

them that I preferred not to talk to them.

Mr. KUCINICH. Mr. Chairman, I think that this is a matter that

this subcommittee should reserve the right to continue to review,

because not only did the American people not know about the

eavesdropping going on, but instead of trying to get into the nature

of the eavesdropping, the Government is going after people who basically were defending the Constitution. This world does not have

to be upside down, as long as we stand by our obligation to support

people like Mr. Tice.

Thank you, Mr. Chairman. Thank you, Mr. Tice, and other members of the panel.

Mr. SHAYS. I thank the gentleman, and I thank you, Mr. Tice,

for your responses.

Mr. Dent, you have the floor.

Mr. DENT. Thank you, Mr. Chairman.

My question is to all of you, and we will start, I guess, from the

left with Specialist Provance. Were any of you advised of various

whistleblower rights upon the commencement of your employment?

We will start with you, Specialist.

Specialist PROVANCE. The only thing I have been told regarding

me and my testimony is that I was going to be punished for the

testimony offered and then actually being punished itself.

Mr. DENT. So the answer is no, you were never advised of whistleblower rights upon your enlistment or duties in the military.

Specialist PROVANCE. That is correct.

Mr. DENT. Thank you.

224

Colonel.

Colonel SHAFFER. Sir, I stumbled into being a whistleblower. I

really had no intent to make disclosures which I thought were of

that nature. I was trying to report what I thought were legitimate

issues regarding failures.

I was first notified of the fact that there are no provisions to

cover disclosure of particular information by the executive director

of the House Armed Services Committee when we were discussing

this back before I went public in office, and he basically said, ‘‘We

will do what we can to help protect you, but you are on your own.’’

That was my first, I guess, realization there was nothing there for

whistleblowers.

Mr. DENT. Thank you, Colonel.

Mr. German.

Mr. GERMAN. No, never.

Mr. TICE. Actually, no, sir, although I thought that there was a

whistleblower protection law out there that I generally knew about

that ultimately I found out did not apply to the intelligence community, nor have I ever in any of my intelligence services been informed that there existed an Intelligence Community Whistleblower Protection Act. It wasn’t until I talked to the DOD IG that

he informed me that such an animal existed.

Mr. DENT. Thank you.

Mr. LEVERNIER. The answer is no.

Mr. DENT. My second question is: What improvements would

each of you recommend to protect national security whistleblowers,

particularly as it relates to security clearances? I thought maybe

we would start with Colonel Shaffer on that point.

Colonel SHAFFER. Well, sir, I think one of the biggest things is

transparency of process. There is a due process system involved for

the clearance process. It is called the ‘‘whole-person concept.’’ Any

adjudicator needs to look at every aspect, good and bad. There’s

easy ways to bypass that. In my particular instance, the investigations literally excluded all exculpatory information. My attorney

Mark Zaid and I reviewed the files. There was not a thing in there

about my awards, my accolades, or anything else, and it was literally easy for them to stack the deck because there would be no

scrutiny of their process. So I think that would be one of the biggest things, is actually putting into the process a way of reviewing

the oversight of how clearances are granted and possibly even

doing a ‘‘must issue’’ clearance, much like, if I could digress to the

Second Amendment here for a second, in Virginia, for conceal carry

it is a ‘‘must issue’’ policy. If you can’t find anything bad about the

person, you have to issue the permit to carry concealed. I think it

should be a similar consideration for clearances.

Mr. DENT. Thank you.

Mr. German.

Mr. GERMAN. One of the things I think would be very helpful is

having some sort of advocate for the whistleblower, because what

happened to me was that it immediately became—all the questions

were what are his motivations for reporting this. And they never

would tell me what they thought my motivation was, but the focus

became on me as opposed to what the material I reported was. To

make it clear, in this terrorism investigation I did no investigation.

225

It was literally FBI Tampa’s records conflicting with FBI Tampa’s

records. The same people were writing two completely opposite

things, what happened before my complaint, and then what happened afterwards.

So I really had nothing to do with it except to point it out. But

because they didn’t want to react to my complaint, everything became focused on me, and I had nowhere to go. You asked about

whether I had been advised of my rights? I was literally in a position of doing my own research on what the whistleblowers rules

were and reporting them to the Office of Professional Responsibility

and to the inspectors and to the DOJ Inspector General to where

they didn’t even under—I would have to point out portions of the

statute to them that you are supposed to do this, and, you know,

so I think if there was somebody who was an advocate—because

part of the problem is because you keep complaining when nobody

else wants to hear it, you become the problem, as opposed to if I

had an advocate who I could report it to and go on with my job.

I never wanted to be a whistleblower, like Tony said. I wanted to

be an FBI agent, and I wanted to do my job. The only reason I am

here is because they prevented me from doing my job. And if there

was somebody who would take the issue and run with it, then I

could go back to doing my job and not be involved anymore.

Mr. DENT. Thank you.

Mr. TICE. Yes, sir, one thing I thought was interesting about my

particular case was it seemed that the Security Office at NSA was

running the entire situation, no matter where I went, whether it

was to the medical board or whether I was putting in a FISA request for my own records, to this day which I have never received

my own records from NSA through my FISA request. They were

supposed to let me see my own records, but they, of course, denied

me that ability. Everything seemed to be run by security. At NSA,

even if you work in the General Counsel’s Office or if you work at

the IG, their clearances are controlled by the Security Office. So ultimately you have a situation where in a Hoover-esque style, the

Security Office can literally run roughshod over everyone else in

the agency. Also, they keep a data base, I call it the ‘‘dirt data

base,’’ on everything that you have ever done in your life garnered

from background investigations and polygraphs. I believe that information could easily be used to blackmail anyone who works at

NSA into making sure that the will of the Security Office is ultimately followed. And, ultimately, you have to take that blackmail

away, that capability away from the Security Office, and make it

totally independent. And, ultimately, if someone is basically investigating themselves, which is what the DOD IG allowed NSA to do

in my case, you are not going to get an unbiased opinion.

Mr. LEVERNIER. Could you repeat that question?

Mr. DENT. Yes. The question was: What improvements would you

recommend to protect national security whistleblowers, particularly

as it relates to security clearances?

Mr. LEVERNIER. Well, I would echo the comments of the Lieutenant Colonel. The Department of Energy has a similar rule. They

don’t call it the ‘‘whole-person rule,’’ but they say that you are supposed to evaluate all of the information about a person, favorable

and unfavorable, and that is codified in the Code of Federal ReguVerDate 11-MAY-2000 11:19 Jul 20, 2006 Jkt 000000 PO 00000 Frm 00233 Fmt 6633 Sfmt 6633 D:\DOCS\28171.TXT HGOVREF1 PsN: HGOVREF1
226

lations. And what happened in my case and what happens in many

cases, the personnel security decisions are judgmental. It is someone’s judgment about how important a specific characteristic of a

person is. And in one context, they will say that someone that stole

13 pens when they were 13 years old is evidence of dishonesty and,

therefore, should be prevented from getting a security clearance.

But in another case, it is overlooked, and there is no precedent,

there is no consistent, uniform application of the standards and criteria.

I am not advocating that we have to come up with some sort of

a criterion on how you evaluate every issue, but there needs to be

more standardization, and probably the best way to achieve that

would be some independent review that you could go to if you felt

that you had been singled out for retaliatory purposes. At least in

the Department of Energy, there is no independent review of actions that are taken. You are stuck with their decision, end of

story.

Mr. DENT. Thank you.

Specialist Provance.

Specialist PROVANCE. Well, I do know, sir, that under the current

Whistleblowers Act it does not cover those of us who have spoken

to the media. It only refers to our—such as our chain of command

or the Congress itself, which is, in my own situation, you may find

it a little bit too intimidating or actually, you know, you will get

punished along the way by doing that. And I would just recommend that more leeway be given to those of us that have spoken

to the media under this Whistleblowers Protection Act.

Mr. DENT. Thank you. I have no further questions, Mr. Chairman.

Mr. SHAYS. I thank the gentleman.

At this time, Mr. Van Hollen, you have the floor.

Mr. VAN HOLLEN. Thank you, Mr. Chairman. I want to thank all

the witnesses for testifying. Thank you for your courage in being

here. And I do think people listening to these proceedings would be

very alarmed at two things: No. 1, they would be alarmed at the

kind of abuses that are going on in various agencies, but they are

going to be just as alarmed about the lengths to which people in

those agencies went to block you from testifying and to retaliate

against you, using, of course, taxpayer resources, not just to block

the public from knowing what is going on, but then to really go

after each of you to try and discredit you. So I am very thankful

and grateful that you are all here today.

Mr. Tice, if I could just ask you, you talked about that the procedure you went through at NSA to report your complaint, you first

went to the IG at DOD. Is that right? What was the——

Mr. TICE. Well, the first thing I did is I just happened to know

the Deputy Director of NSA personally, and 2 days after they took

my access to classified information, I just happened to be at an

event where he was there, and I asked to talk to him, off-line—in

other words, in private. And I told him what had happened, and

his advice to me was to get a private opinion about my being declared paranoid and psychotic, and ‘‘that would take the wind out

of their sails.’’ So ultimately I did get the second opinion from a

private sector psychologist.

227

Mr. VAN HOLLEN. But within the Government framework, you

went to the Defense Department IG, and as I understand, they essentially sent you right back to NSA.

Mr. TICE. Yes, sir. Ultimately, when I did not hear anything, and

I waited about 3 months, and I got no response from the Deputy

Director. I talked to my supervisor and he said he took it up the

line, and Security told him to mind their own business. Then I

went to Senator Mikulski, and she helped me a little bit as far as

getting to the IG. Ultimately I went to the IG, and the IG allowed

NSA’s IG to do an investigation.

Mr. VAN HOLLEN. I ask you that because I have a couple questions about the process someone would go through with respect to

the domestic warrantless wiretapping program, because under

FISA, as we all know, an individual who violates the FISA law can

be held criminally liable under that statute, regardless of what the

President’s interpretation of the law may be, and I think most lawyers and scholars who have looked at it think that the President’s

interpretation and legal justification—not security justification but

legal justification—has been flimsy. And despite that justification,

ultimately a court of law may decide whether or not an individual

at NSA can be held individually liable for violating FISA.

So if you are an individual at NSA and you are part of the domestic wiretapping program, and you look at the FISA law and you

read Section 1809(a) and say, Hmm, I may be criminally liable

under this FISA statute, I have some questions about it, you would

turn to who first under the current procedures to say, look, I am

not sure what is going on here, I am not sure if this is really legal,

who would you turn to first?

Mr. TICE. Ultimately, I think you are supposed to turn to the

NSA IG if you are an NSA employee.

Mr. VAN HOLLEN. And as I understand the process, as you go

through different steps, ultimately if you were to report this case

within NSA, you would ultimately end up back, as you did, where

you started, at NSA. Is that right?

Mr. TICE. Yes, sir.

Mr. VAN HOLLEN. In other words, the very people who have

made the determination, a legal determination, that this is OK

would be making a decision about whether or not your individual

conduct was appropriate or not. Is that right?

Mr. TICE. Well, supposedly, the General Counsel at NSA reviewed the decision to spy on Americans. But, ironically, when I

read the policy of NSA, this policy is drilled into our head as signals intelligence officers. Every signals intelligence officer knows

you do not do this unless there’s some extraordinary things that

happened, or it could be done inadvertently, and then there’s ways,

you know, to address it from there. But it’s drilled into our heads,

you know not to do this, and, you know, the scuttlebutt that I

heard was when—during the last Presidential election was that

there were a lot of folks that thought if Senator Kerry was elected

President, that they would ultimately face some legal ramifications.

Apparently, there was a lot of people wiping their brow when our

current President was re-elected.

Mr. VAN HOLLEN. Well, I think what all of your testimony reveals is that when you are talking about national security issues

228

and issues involving intelligence, the fact of the matter is at the

end of the day there is really no independent evaluator outside of

your own particular agency who can make some authoritative decision and override the decision of the agency. And so in the case of

the NSA wiretapping, people are sort of at the mercy of a legal interpretation within NSA, however flimsy that may turn out to be.

And I can tell you, I think the reason you are seeing some bipartisan grumbling, especially on the Senate side, and hopefully self-respecting Members of this body, in the House on both sides of the

aisle, will begin to take a closer look at this.

Unfortunately, Mr. Chairman, the Judiciary Committee in the

House has refused to have a hearing on this issue to get to the bottom of some of these issues.

But let me just turn to Mr. German, if I could, because I think

the title of this hearing is very apt, the labyrinth. I mean, you really just got caught up in a byzantine process. And as I understand

your testimony, you went through the immediate chain of command, and then you finally said, ‘‘I am going to the IG at the Justice Department.’’ And you got to the Justice Department IG, told

your story, and there was no followup. And it is only when they

understood you may be going outside the Justice Department itself

that you began to get someone to pay attention. Is that right?

Mr. GERMAN. Right. I reported it initially through my chain of

command. It was then reported to OPR. OPR refused to open an

investigation. And I contacted the IG, who at least said they would

interview me. Then OPR wanted to be in the interview, so OPR

and IG interviewed me together. Then the Inspection Division

came in and took it away from OPR, and then about a year later,

the IG told me they would not pursue an investigation. Only when

I demanded it in writing did they then say, well, wait a minute,

and then open an investigation. And that was in January 2004, so

that was 2 years after the events in question that they decided that

they would open an investigation. Nobody contacted me by March,

so I called them and they said, oh, we haven’t assigned it yet. In

April, they just reinterviewed me for the third time and said, ‘‘We

are going to re-evaluate your interview and decide whether to proceed.’’ And that is when I reported to Congress, and I knew that

at that point I was——

Mr. VAN HOLLEN. That is when you began to get some attention

within the Justice Department.

Mr. GERMAN. Right, but I also knew that was time to go.

Mr. VAN HOLLEN. Time to go. I understand.

In your testimony, you make it clear that this saga is continuing.

Could you just talk to the subcommittee a little bit about the predicament you are in right now?

Mr. GERMAN. Well, my understanding now is that the Inspector

General’s report now is sent to the Department of Justice Office of

Attorney Recruitment and Management, but only 13 pages of the

52-page report are actually submitted. And in order for me to get

the witnesses and the documents, I actually have to request depositions and discovery. But now the burden is completely on me, and

the fact finder, the independent fact finder, is now my adversary

in this proceeding.

229

Mr. VAN HOLLEN. So they have turned the tables on you, and

what is——

Mr. GERMAN. Right, and put me back at square one.

Mr. VAN HOLLEN. What is the nature of the proceeding against

you?

Mr. GERMAN. My understanding, from what they have been able

to tell me, which is very difficult—they have been very professional

with me, but it is just hard to understand how this is supposed to

proceed, because I don’t have access to any records. I left the FBI.

So I don’t have a security clearance anymore, and they say that it

is a de novo procedure, somewhat like an administrative law court,

where I have to go in and argue without access to the documents,

and if I ask for documents, there is no guarantee that I will get

the documents. I have to ask for depositions to be taken. This is,

you know, all on my nickel.

Mr. VAN HOLLEN. So while they are continuing to essentially

come after you, let me ask you what has happened to the people

where they found actual wrongdoing? Because as part of the IG’s

report, which they finally opened up after all your efforts, they did

find that people had falsified documents as part of the investigation you were participating in. Is that right?

Mr. GERMAN. Right. They found that the documents were

backdated and were actually falsified with Wite-Out. And as far as

I know, all the people involved were receiving regular promotions

by the time I left.

Mr. VAN HOLLEN. I was going to ask you, so to your knowledge,

none of them have been held accountable. Is that right? In the

sense that none of them have received any kind of punishment or

sanction for what was admitted wrongdoing.

Mr. GERMAN. Right.

Mr. VAN HOLLEN. And with respect to the unauthorized wiretapping and the people involved with that originally denied they

did this. Is that right?

Mr. GERMAN. Right. They denied the meeting was recorded and

took the evidence of that, the tape, and how I—you know, I found

out about it when I saw the official record where they were denying

that it was recorded. I had a transcript of the recording, so that

was pretty good evidence that it had been recorded. And I provided

the transcript to the Inspector General and to the FBI’s OPR.

The unit chief of the Office of Professional Responsibility came

in shortly after I provided it in the OPR office and said, ‘‘I have

good news. They found the tape. It’s in the supervisor’s desk.’’ Well,

I knew at that point that this game would——

Mr. VAN HOLLEN. Has any action been taken against that supervisor that you know of?

Mr. GERMAN. My understanding is there have been regular promotions.

Mr. VAN HOLLEN. Right. Now, as an FBI agent, you understood

that an unauthorized or illegal wiretapping, if you had been directly involved with that, that could have meant you could have

been held liable for that. Is that right?

Mr. GERMAN. Right. It is a violation of Federal law for an agent

to illegally record that conversation.

230

Mr. VAN HOLLEN. Exactly. And under FISA, just to go back to

the point with respect to NSA, under FISA, if you violate FISA, the

individual can be held legally liable, and you understood that.

Now, another implication of that, of course, is that if you proceed

in your case and you take it to court and the defense says, well,

this evidence that you are using is the result of an illegal wiretap,

you can’t use that evidence in court. Is that right?

Mr. GERMAN. That’s correct.

Mr. VAN HOLLEN. So it could totally destroy your entire case.

Mr. GERMAN. Which was my concern in August 2002, that if we

didn’t deal with this problem immediately, there was no point in

proceeding because the prosecution was cripped.

Mr. VAN HOLLEN. The individuals could run free at the end of

the day because of a bungled investigation. Is that right?

Mr. GERMAN. Right.

Mr. VAN HOLLEN. Well, just to close the point, going back to the

NSA issue, one of my concerns with respect to the NSA wiretapping is, again, regardless of what the President’s interpretation

of the law may be, any individuals out there that we may have obtained evidence against them through the warrantless wiretapping

instead of having just gone to the FISA Court and gotten a warrant

through the regular process, now if we decide to bring any kind of

criminal case against them, they may well at the end of the day

go free because the decision was made not to go through the lawful

process, not to go through the FISA Court, which has approved

thousands of these, more or less. My understanding is they have

only rejected a handful. And it seems to me to jeopardize cases that

are important to our national security by not following the law appropriately is at the end of the day really going to hurt our security.

If we need to change the law, if the FISA process does not adequately protect our ability to gather this information, the obvious

approach is for the President to come to the Congress as part of

PATRIOT Act discussions or whatever and ask for a change in the

law. And I can tell you, I think the Congress would be very willing

to work with the President if he would tell us exactly what it is

that is inadequate in the law. But under the current procedures,

as you point out in your case, if you do not go through the procedures, at the end of the day not only could you be liable, but the

whole case could get thrown out.

Thank you, Mr. Chairman.

Mr. SHAYS. I thank the gentleman.

Mr. Ruppersberger.

Mr. RUPPERSBERGER. Well, there are a lot of issues here today,

and I again want to thank you all for coming. And obviously we

have a problem with the whistleblower protection statute, and

hopefully we will, after today’s hearing, be able, as the investigative arm of Congress, to try to develop some procedure or law to

really make a better program to allow people who have a concern

about issues that they are dealing with, and each one of you have

your story.

I happen to be on the Intelligence Committee, and I represent

NSA. Mr. Tice, I am not sure whether you are my constituent, but

a lot of people who work at NSA are actually my constituents also.

231

And my concern about where we are going right now is that—Mr.

Tice, I am going to use you as an example. You have concerns. You

said today that you felt that some of your concerns might violate

our Constitution. And yet you are having a hard time getting your

facts out on the table, so Congress, the independent body of the administration, should be the check and balance to hear your story.

Now, I am not sure what your story is because I have not talked

to you, and I do not have the facts, and we need to get those facts

in a classified way. By the way, I want to acknowledge you, Mr.

Tice. I have a copy of a letter sent to you January 9, 2006, and it

is from Renee Seymour, Director, NSA, Special Access Program,

Central Office. ‘‘I want to congratulate you in the exercise of your

rights. You are acting responsibly to protect sensitive intelligence

information.’’ And when you do go to work for the NSA, CIA, certain intelligence agencies, you have to sign a document saying that

you will maintain the confidentiality of this information that you

are working with, which I feel you need to do because we need to

protect national security. And we cannot let the bad guys know

what we are doing. We must have that for our national security.

But what happens in your scenario? And that is what we have

to resolve today, and that is where my question is going to go. I

am going to directly probably talk to you, Mr. Tice.

The first thing, it is my understanding that you did follow the

proper protocol. You went to the Inspector General of the NSA. Is

that correct?

Mr. TICE. That is correct, sir.

Mr. RUPPERSBERGER. OK. Now, when you went to the IG, you

gave your story, you stated your position.

Mr. TICE. I did not tell them about the SAP programs that ultimately I want to talk about.

Mr. RUPPERSBERGER. Is that because you were not allowed to, or

they did not have the clearance, or what? What I am trying to do

is determine what, as far as an individual such as yourself that is

working in a classified area, what do we need to do to allow you

to feel comfortable when you feel there is abuse, to get your information to Congress, who is the check and balance between the administration, pursuant to our Constitution?

Mr. TICE. At that time I brought up a couple issues that I

thought I might want to go to the ICWPA about.

Mr. RUPPERSBERGER. Why don’t you explain? I know these acronyms, and we have a lot of acronyms in intelligence. Why don’t you

explain that?

Mr. TICE. The Intelligence Community Whistleblower Protection

Act, which——

Mr. RUPPERSBERGER. All right. I believe 1998.

Mr. TICE. I will take your word for it, sir.

Mr. RUPPERSBERGER. I have it written down here. It is 1998.

Mr. TICE. That was the intent. At that time I did not bring up

the concerns, first of all, because I knew those people would not be

cleared; second of all, because the information is so closely held

that I potentially could, I figured out the programs. And these programs actually are very beneficial to our citizens as far as their security. So I did not want to say anything at that time.

232

Something has happened since then that in a classified setting

I would be more than willing to tell you, but it is sort of a barrier

that has been lifted from me where ultimately I feel I can tell you

now.

Mr. RUPPERSBERGER. Well, let’s get to the process. The first

thing, the Inspector General did not have the clearance to hear

what you had to say to them.

Mr. TICE. That’s correct.

Mr. RUPPERSBERGER. So, in your opinion, do you feel that we

need to deal with that issue first, that the person who has information that feels is contrary to what the administration is doing or

the policy of the administration, when you go through your process

pursuant to the Whistleblower Act of 1998, you are going to somebody that you really can’t tell the story to?

Mr. TICE. That’s correct, sir, and ultimately the issue of confidentiality, because once you got to the DOD IG, you are pretty much

putting your career on the line.

Mr. RUPPERSBERGER. Tell people what the DOD IG is, Department of Defense Inspector General.

Mr. TICE. Department of Defense Inspector General.

Mr. RUPPERSBERGER. OK. Try not to talk in acronyms, if you can.

OK. So then from my point of view—and, Mr. Chairman, I think

this is a relevant issue. When we have the Inspector General—and

I want to focus on the intelligence area. We have an Inspector General that really is there in a process pursuant to this law, but that

Inspector General cannot receive the information because it is classified. So we have to work through that. Do you agree?

Mr. TICE. Yes, sir. As a matter of fact, I suggested to the Department of Defense Inspector General that they gain the proper clearances in the Special Access Programs that I was involved with.

Mr. RUPPERSBERGER. OK. Now, after you went to the Inspector

General, who cannot hear what you have to say, then what happened?

Mr. TICE. From that point, the Department of Defense Inspector

General sent my case down to the National Security Agency’s Inspector General to investigate it. But we are talking about the case

of ultimately my being fired and the false, you know——

Mr. RUPPERSBERGER. When did that occur? When did you get

into that realm? When you said you had information you wanted

to give, you went to the Inspector General, but not the Inspector

General of NSA, just the Inspector General of the DOD.

Mr. TICE. That’s correct, sir, and the timeframe would have been,

I do believe, in the spring and summer of 2004.

Mr. RUPPERSBERGER. OK. Well, when did you feel that you all of

a sudden went from a status of an employee who had a problem

with a program that you wanted to raise the issue about to the fact

that you were now maybe in trouble because you wanted to say

something? When did that occur? And what event triggered that?

Mr. TICE. The initial retaliation was because of a suspicion of a

coworker involved in espionage, and we are sort of talking apples

and oranges. If you are referring to, you know, my wanting to talk

to you about some possible illegalities in a SAP program, that

didn’t come until much later.

233

Mr. RUPPERSBERGER. OK. Now, when you went to the Inspector

General of NSA, was that person able to receive the information

that you had?

Mr. TICE. No, sir, they were not cleared.

Mr. RUPPERSBERGER. Because they were not cleared also. So,

again, you have somebody in the system that the system is not

working because that person cannot hear your information. Then

what occurred after that?

Mr. TICE. After I went the Department of Defense——

Mr. RUPPERSBERGER. After the NSA Inspector General.

Mr. TICE. In relation to the retaliation for the espionage suspicion?

Mr. RUPPERSBERGER. Yes.

Mr. TICE. After that, I was just put in limbo and waited.

Mr. RUPPERSBERGER. And that is where you are now?

Mr. TICE. Well, I am fired now, or they say ‘‘removed.’’ They revoked my security clearance because of my supposed mental state.

Mr. RUPPERSBERGER. Are you still unemployed? Are you getting

paid?

Mr. TICE. No, sir.

Mr. RUPPERSBERGER. OK. What is your status then?

Mr. TICE. I am unemployed, former intelligence analyst.

Mr. RUPPERSBERGER. OK. Now, let’s get to the NSA, and it has

been raised here before about the issue of the NSA and the program that has gotten a lot of publicity.

To begin with, when you look at the history of our country, we

left the King of England, and we wanted to create strong States

rights. Realizing that we could not deal internationally that way,

our forefathers created a Constitution, and one of the most important aspects of that Constitution is checks and balances. And when,

in fact, the administration does not understand or does not want

to follow the checks and balances, it seems to me that we have

problems.

My concern with your issue or anyone that works in NSA or anybody at this table, you need to know what the law and the rules

are. You should not have to worry about interpreting anything. If

you have an issue and you are a citizen of this country and you

work in a classified area or it is very important and you think

something is wrong, you should have the ability, without the threat

of reprisals, to be able to have a system to go to somebody in authority who looks at that system. And it seems to me that is broken. Does everyone here feel that way?

Now, getting back to the issue of intelligence, the first thing, I

have heard you. You have gotten some pretty tough questions from

some of the members on this panel, and as a member of the Intelligence Committee, I think you have handled yourself well here

today. But when you are talking about a system, you also have to

have a system that is going to work on all sides because—let me

give you an example. We have 21 members on the House Select Intelligence Committee. It is very important that if we had a complaint from every employee in the Department of Defense and NSA

and CIA, we would be hearing complaints all day. So we need to

have a system that makes sure that the administration of those

agencies is able to vet and able to make sure that if something is

234

going to come before us, that it has been vetted, meaning looked

at, reviewed, whatever, or we would be sitting there hearing complaints all day. And I am not sure if NSA—and I want your opinion—feels that what you have is not relevant or why it should not

come before us, or do you feel that there is some other motive to

that in that regard?

Mr. TICE. I think that the information I want to bring forward,

they feel that if it comes out would be possibly as explosive as what

you already know, and ultimately they don’t want anyone to know

that.

Mr. RUPPERSBERGER. But there are two concerns here. We can

talk about what we need to do here with whistleblowers, and we

need to make sure that we follow our Constitution. We swear an

oath to do that. But we also have to make sure that we protect our

national security, that we protect ourselves from terrorist attacks.

And it is very important that classified information not get out, but

that we have a system from within to make sure that people like

me—that is my job on the Intelligence Committee. And I am concerned about the whole NSA issue because I still don’t know—

whatever the administration did—whether they were justified in

doing it because we haven’t been able to hear the facts yet. We

have heard a little, but not much, not what we should.

So how can you make a determination on any issue whatsoever,

whether it is your issue or the NSA issue that is out there, unless

we hear the facts? And our Intelligence Committee, both in the

Senate and the House, were set up, because it is classified hearings, to find out what that issue is. And right now that is not working. And this issue is not going to go away. I would hope the administration would come forward, give us the facts, and let us

make the determination because, believe me, I don’t know anybody

on our committee, whether they are right wing, left wing, Republican or Democrat, that is not willing to give the tools to our intelligence agencies to protect our country from another terrorist attack. But it has to be done pursuant to the law.

Now, let’s get back to your situation. We have had a lot of testimony. Is anyone on the panel—but I want to focus into the intelligence arena. When you have information that really cannot get

out because—to protect national security, but yet you feel that it

is a violation of our Constitution, how would you want to see this

structured? I have gotten out of you here today that the Inspector

General issue is a major issue, that is not getting anywhere. And

it seems to me that we need to get somebody who is fully cleared

to be able to hear information like this and then take that information and evaluate it and vet it and make sure that the person is

not a disgruntled employee, someone who is bitter or mad or whatever, but an American who says, ‘‘I do not believe this is right, and

I should have the ability to go to my superiors and lay this out on

the table and let it be analyzed.’’ And if it is that serious, to get

to the Congress, who are the check and balance between the administration and your department.

Mr. TICE. As far as a suggestion, sir, if we had some sort of panel

of, say, former, retired intelligence professionals that had nothing

to do ultimately with their paychecks or in an augmented fashion

coming from the agencies that they formerly worked with and

235

cleared them even up to the Special Access Program level where

independently they could look at something like this and deal with

it in a very small group, and drawing from their own experiences

as former intelligence analysts or officers or agents or whatever,

then I think that independence would sort of——

Mr. RUPPERSBERGER. And are you saying they should be in the

Inspector General role or after, like appealing from the Inspector

General to that group?

Mr. TICE. I would think they would be totally devoid of any connection with the Inspector General.

Mr. RUPPERSBERGER. OK. Anybody else have any suggestions?

Colonel SHAFFER. Sir, respectfully, I think that there may be

some merit to assigning the overall Inspector General function to

the Congress and consolidating all Inspector Generals under that

oversight, and then allowing for mechanisms to be created where

you can make protected disclosures and let it be sorted through.

Part of the process I think all of us have gone through is there

was no objective reflection on what we were saying, plus the bureaucrats who were hearing it had their own motives to protect

their own equities, that is to say that there is no benefit to them

directly by supporting what we were saying. As a matter of fact,

it was to the contrary because it showed wrongdoing on their part,

they did not want to hear it. So it is very important——

Mr. RUPPERSBERGER. That is a very interesting point. And there

also is a lot of protection of turf, whoever it is.

Colonel SHAFFER. Yes, sir.

Mr. GERMAN. I would like to reinforce that, because one of the

problems with just writing a new law is, you know, as my case

demonstrates, the FBI is not following the law. There is a law

against an FBI manager taking out a can of Wite-Out and covering

up FBI documents, you know. But why was this person so comfortable in doing that in such a crude way? It was because he knew

nobody would look. There was nobody looking over his shoulder. So

if there was someone outside the agency like the Congress, I think

it requires oversight.

Mr. RUPPERSBERGER. I hate to say this—and this is part of what

we have to do in Congress, but my time is up. Mr. Tice, I hope that

we can resolve somehow your issue, and also it is important, I

think, to make sure that they look at you and all of you here. I

hear your story, Mr. German. From what I hear, I do not like what

I hear, but I do not have enough time to get into it. But I would

hope, Mr. Tice, that your issue is not completed, and I am going

to do what I can to see where it is.

Now, I do not know you. I do not know your background. I do

not know what you have to tell me because you cannot tell me

right now. But it is a case study that we need to look at to protect

other employees and other intelligence agencies who feel there is

a violation of the Constitution who are patriotic Americans, but

they feel that at least their issues should be heard without feeling

there is a reprisal, and you want to feel secure to come forward.

It is like—it has been said yes-men are dangerous sometimes, and

you need to get all the facts out on the table.

Thank you.

Mr. SHAYS. I thank the gentleman.

236

I will close up with my time now from Mr. Weldon. This subcommittee has looked at three areas. We looked at the issue of

overclassification and sitting at that desk, we had a DOD representative who said that in her judgment, over 50 percent of what

we classify should not be classified, it should be available. And so

that is one issue we look at, and it relates to, I think, really what

all of you are wrestling with. Sometimes we seek classification simply to prevent someone from being embarrassed.

And then we have this concept of sensitive but unclassified,

which technically is not classified, but it is sensitive and cannot be

shared with anyone. Or another term, ‘‘For Official Use Only,’’

which is not classified, but, you know, what does that mean?

So, I mean, we need as a country to wrestle with this big time.

And I suspect that some information would be available to the public that would be helpful for the public to know and not in any way

endanger our country and, in fact, help others who work in other

parts of the Government know information that they could not see

because it was classified. But had it not been classified, it would

have helped them do their job better.

Another issue is that we are looking at the Civil Liberties Board

that really is not working properly, is not funded, and seeing if we

can take the 9/11 Commission recommendation, which is to have

a Civil Liberties Board that would be Presidentially appointed,

Senate-approved, subpoena power, and an individual in each of the

agencies that would see when things are not going well. And I

would think we would maybe tie that to the whistleblower.

And the third thing is we are looking at the Whistleblower Protection. It does not work as well as we want throughout the Government, and it works pathetically, in my judgment, all of your testimony has been very helpful. But the Whistleblower Protection is

not working, in our judgment, in the intelligence side.

What I want to do, though, is my first inclination is to be asking

all the sympathetic questions that will allow you to talk about how

you have not been treated well, but I just need for the record—and

I hope you understand. What I am wrestling with is we cannot

allow everyone, anytime they think something should be public

that they think is wrong, to go public. There would be chaos. We

would endanger individuals in our Government. Forget embarrass

people. I could care less about that. We would endanger them. And

we would put our Nation at risk.

So there has to be a process that does not allow you, Mr. Tice,

to come in and say whatever the hell you want here. I think you

know that. You obviously got our attention when you said publicly

there are things that you want to share that you think are wrong

that is going on in the Government. And we need to followup on

that, and you need to speak out about it.

But just take the whole issue of the NSA and wiretaps. There

were eight Members of Congress who were told, and not one of the

eight Members of Congress—said this is wrong, illegal, and it has

to stop. There was one Member who voiced reservation, and there

was another Member who had concerns about other things that

were happening that the administration was doing and tried to tie

that into a reservation about the NSA, and it was not connected.

And so Congress has truly failed as well.

237

So what I want you each to do is first off, Specialist Provance,

I am deeply touched by your testimony because I feel you had to

confront the most powerful, and you shared information with a superior officer who did not want to know what you wanted to tell

him. He wanted to know what you were going to tell others.

What is available to you to share information with a superior

when you see illegal acts? What do you think is available to you?

Are you supposed to go to the next person in line, or can you jump

up to a General?

Specialist PROVANCE. You are supposed to go through your chain

of command, which begins at your company, and you are told if it

is not handled, you go to the next available commander, which

would be battalion, and if he——

Mr. SHAYS. OK.

Specialist PROVANCE. It goes up the chain of command, and then

once you have exhausted the chain of command, you are to go to

the Inspector General, and that is pretty much where it is supposed to end, sir.

Mr. SHAYS. And how do you make contact with the Inspector

General?

Specialist PROVANCE. It would depend on where you are at, sir,

but generally it is a matter of either visiting their office or calling

them on the telephone.

Mr. SHAYS. But if you are in Abu Ghraib, there is no Inspector

General walking around.

Specialist PROVANCE. No, sir.

Mr. SHAYS. See, I have been to Iraq 11 times, and I have had

pushback from the Department of Defense at least 5 of those 11

times. And my view is if one Member of Congress had showed up

at Abu Ghraib—how many Members of Congress did you see show

up at Abu Ghraib?

Specialist PROVANCE. I didn’t see any, sir.

Mr. SHAYS. Yes. Zero, right? If you had, probably what would

happen is a Member of Congress would have come by, you would

have said, ‘‘I don’t know the first damn thing about guarding’’—I

am not saying you, but someone there—‘‘guarding prisoners. I am

a cook.’’ And then they would have probably said, ‘‘Terrible things

are happening. You need to check it out.’’ And we could have

nipped it in the bud, found out what was happening, and we didn’t

do our job. And that was Congress simply not out there and available.

But there really is no Inspector General when you are in Abu

Ghraib, correct?

Specialist PROVANCE. That’s right, sir.

Mr. SHAYS. Lieutenant Colonel, what is the process? Any change

in what——

Colonel SHAFFER. No, I think the obvious answer is always approach your chain of command, and then I think if you don’t get

satisfaction, you have to find another outlet.

I will just use my story as an example. Iraq, September 11th, the

attacks—as a matter of fact, sir, you were part of the solution, as

I understood it, because you and others were made aware of some

of the work we had done on Able Danger. You and Congressman

Weldon, I believe Congressman Dan Burton, all were involved in

238

reviewing it. I figured when I was told that, my work is done, I

have nothing to say.

It wasn’t until I come to find later, after I disclosed my information to the 9/11 Commission, that no one had really taken an interest in it and then subsequent to that——

Mr. SHAYS. The people we shared it with didn’t take interest in

it.

Colonel SHAFFER. Right, exactly. And I didn’t know until later

when I talked to Dr. Zelikow that they had not heard about Able

Danger. I mean, think about it for a second. I am a Major deployed

undercover in a combat situation telling the chairman of the 9/11

Commission—the staff director for the first time about Able Danger

when obviously now we know other officers more senior than me

knew about it.

Mr. SHAYS. OK. So how would you define—the difference with

our Specialist is that you saw illegal acts, correct?

Specialist PROVANCE. I was told about illegal acts, sir.

Mr. SHAYS. OK. This is the interesting part. If General Fay were

to come before us, he would probably say to us he didn’t have firsthand knowledge. But what it should have said to him is he needed

to immediately send people and investigate.

Specialist PROVANCE. Yes.

Mr. SHAYS. And your testimony to us is that there appeared to

be no interest in doing that.

Specialist PROVANCE. That’s correct.

Mr. SHAYS. But you heard of illegal acts, and you reported them,

as you should have.

In your case, it is not an illegal act. How would you define your

need to blow the whistle?

Colonel SHAFFER. I would say in some cases misuse of Government resources and capabilities regarding pre-September 11th intelligence, failure to share information, and then after the fact, failure to adequately investigate those failures as part of the September 11th investigation. And then my last disclosure to Congress

itself, sir, which came May of last year, I assumed up until May

of last year that there was a classified annex to the September

11th report where Able Danger and other classified projects were

listed. I come to find that did not exist and, therefore, I was asked

to come forward with the information.

Mr. SHAYS. In the case of all of you—and I need a ‘‘yes’’ from

each of you—you each have left the Government? Who is still gainfully employed in the area they were in?

Colonel SHAFFER. Well, I am still being paid by DIA as a GS–

14 pending the outcome of whatever DOD investigation occurs.

Specialist PROVANCE. I still haven’t received my clearance back

or any official word as far as where it stands, and so the only thing

I have been doing since being demoted is picking up trash and

guard duty and things of that nature.

Mr. SHAYS. Since being demoted. It is amazing.

Mr. German.

Mr. GERMAN. I resigned from the FBI.

Mr. SHAYS. Now, in your case, you saw illegal acts.

Mr. GERMAN. Right.

239

Mr. SHAYS. And it is your testimony that those illegal acts are

known by your superiors and including the former Director.

Mr. GERMAN. Yes. I reported it directly to the Director.

Mr. SHAYS. And you were not thanked, clearly.

Mr. GERMAN. No.

Mr. SHAYS. Mr. Tice.

Mr. TICE. I had my security clearance permanently revoked because of the so-called mental illness and ultimately was removed

in May of last year.

Mr. SHAYS. Mr. Levernier.

Mr. LEVERNIER. I am currently retired, but when I made the disclosure of the unclassified, non-sensitive, unmarked document, not

official use only, not sensitive, not anything, they stated that it was

a sensitive document and that is why they took my clearance. And

then I spent 5 years doing other administrative tasks.

Mr. SHAYS. I mean this somewhat facetiously, but you should be

a Member of Congress because we did exactly what you did. We

toured a few facilities. We saw the review. We thought it was an

amazing failure to deal with reality, and reality was they did not

need to get in and out, they only needed to get in. In our case, we

were able to change the policy. In your case, you were saying,

maybe before us, the very thing we were saying, and you were punished.

Mr. LEVERNIER. And it still exists today. I mean, the technical

term in the Department of Energy is ‘‘recapture and recovery.’’ The

layman’s term is, ‘‘Is the terrorist suicidal and willing to stand?’’

But the Admiral Mies report, 6 months old, said, ‘‘The recapture

and recovery program in the Department of Energy is virtually

nonexistent.’’

Mr. SHAYS. So let me tell each of you that we will personally be

trying to deal with your personal cases. We as a committee will be

trying to deal with your personal cases. We will ask for a full review for all of you that have suffered in any way for speaking out.

So that is, frankly, my first interest, to deal with each of your circumstances. But, second, I think we know the system is broken.

Ms. Sharon Watkins was a whistleblower at Enron, but she was

almost like national security. She only blew the whistle internally.

And when she spoke to Ken Lay and others, they said, ‘‘We will

check it out.’’ And they asked the head of the law firm that they

had hired and that made $23 million a year doing these corrupt

things to do the investigation. She never went beyond that, to our

knowledge. And the sad thing is the end result, what happened to

Enron, what happened to Arthur Andersen, what happened to our

economy in the process.

You have been asked lots of questions today. We thank you for

your responses. I am going to ask you to do one other thing. I am

going to ask each of you to give us a written document of how you

think the system could be improved, some of you had it in your testimony mixed in with other information. The only thing we would

like in your document is what you think we need to do to have the

system work. And it does seem to me inherent in that is there has

to be someone you can go to outside the agency; otherwise, you are

like Sharon Watkins. You are telling Ken Lay he has a problem.

And Ken Lay already knows it, sadly.

240

Is there anything any of you would like to put on the record,

some closing comment, something you had prepared for that you

wished we had asked and we did not? Anything you want to put

on the record, we would like that now.

[No response.]

Mr. SHAYS. OK. Gentlemen, thank you for your service to your

agencies. Thank you for your service to your country. Thank you

for helping us in Congress try to sort this out.

Our next panel is Mark Zaid from Washington, DC; Ms. Beth

Daley, senior investigator, Project on Government Oversight, referred to as POGO; Tom Devine, legal director, Government Accountability Project; and Dr. William G. Weaver, National Security

Whistleblowers Coalition.

This hearing is still going on. We need people to sit. We need our

next witnesses, and there will be no talking, please.

If you would all stand, please? Stay standing, please.

[Witnesses sworn.]

Mr. SHAYS. Note for the record our witnesses have responded in

the affirmative. Thank you all for listening to the first panel. I

would like to thank our Inspector Generals who have been here for

the first panel and now the second panel, I would like to thank

them as well for waiting to be the third panel.

We will now hear from you, Mr. Zaid.

STATEMENTS OF MARK S. ZAID, ESQ., MANAGING PARTNER,

KRIEGER & ZAID, PLLC, WASHINGTON, DC; BETH DALEY,

SENIOR INVESTIGATOR, PROJECT ON GOVERNMENT OVERSIGHT; THOMAS DEVINE, LEGAL DIRECTOR, GOVERNMENT

ACCOUNTABILITY PROJECT; AND WILLIAM G. WEAVER, SENIOR ADVISOR, NATIONAL SECURITY WHISTLEBLOWERS COALITION [NSWBC]

STATEMENT OF MARK S. ZAID

Mr. ZAID. Good afternoon, Mr. Chairman, members. It is a pleasure to testify once again before this distinguished subcommittee.

While I know that the members of the subcommittee personally

view this topic with great seriousness, it is long overdue that Congress exercises its full weight to create adequate protections for national security whistleblowers as well as anyone who falls victim to

a security clearance process that is rife with abuse. I applaud your

interest and your efforts, but this hearing must be considered only

the first step.

I have been representing whistleblowers and defending security

clearance cases for more than 10 years now. The need for whistleblowers, especially those from within the tight-lipped national security community, is now of even grater importance in the wake of

September 11th, as well as due to the ever increasing tug of war

between the need to protect national security at the potential expense of our valued civil liberties.

A security clearance has grown to become a valuable commodity.

It is no longer viewed as simply a requirement of certain Federal

employment. It could lead to wealth and power, but at the same

time it can be used to open doors, it can be used to ruin lives, particularly against those within the intelligence community who have

241

known nothing else during their careers but a covert environment.

For one thing, as was mentioned, loss of a clearance will result in

loss of employment. Moreover, for many in the intelligence community, loss of a clearance effectively precludes them from finding any

work in their chosen field. To them an active security clearance

represents their life plain and simple. Thus, it is far more than

‘‘subtle’’ retaliation. Retaliation against whistleblowers is common

and takes many forms, whether you have a clearance or not. For

those who do hold a clearance, one manifestation is either suspension, denial, or revocation.

Additional statutory amendments are required, and my esteemed

colleagues on the panel will no doubt specifically address that aspect. What I would like to do is talk about what generally needs

to be done in the security clearance field because to correct some

of those general problems will address some of the specific ones for

whistleblowers.

More than 2 million people hold security clearances, and the

number of those who ultimately become whistleblowers is few. Indeed, the number will be statistically insignificant. Yet any one of

those millions of people who hold a clearance face the possibility

that the clearance, which is designed to act as a shield to protect

the national security interests of the United States, will be used as

a sword against them for malicious, frivolous, unjustifiable, or inappropriate reasons. While the vast majority of those holding clearances will never find themselves in that predicament, those that do

will find themselves facing a hostile environment that can at times

be rift with vindictiveness and retaliatory behavior.

Unfortunately, it is virtually impossible to prove that an adverse

clearance decision was initiated based solely on a whistleblower’s

activities. To be sure, the initiation of proceedings, as well as the

time, can often be at least circumstantially tied to the willing’s status, but the actual suspension or revocation will typically have, at

least arguably, a justifiable independent basis. There are so many

regulations that Federal employees run afoul in the common course

of their business, as well as the existence of generic catch-alls within the security framework, that it is not at all difficult to target

someone’s clearance and achieve the intended objective of removal.

In fact, the various security offices within the agencies will not

care as to the manner or motive that led the allegations to come

to their attention as they are viewed as generally irrelevant. It is

not an available defense in responding to security allegations that

the person who filed the allegation was retaliating against you or

that the motivating factor was whistleblowing activity. The only

thing that matters is the accuracy of the allegation, not the source,

not the motive.

Executive Order 12968, issued by President Clinton in 1995, created the current framework for the granting, denial, or revocation

of security clearances. It talks about, as was said, the whole-person

concept. That is bad and good. The ultimate determination is one

of common sense. Obtaining a favorable resolution to a clearance

appeal is generally more based on demonstrating mitigation circumstances or mitigating factors rather than necessarily refuting

the actual allegations.

242

In my written testimony, I have detailed some of the numerous

problems that occur typically across the board at different agencies.

Very quickly, they include significant delays; unpaid suspensions

during the clearance process, which you can imagine the problems

that adds when someone is on unpaid leave for 1 year pending an

adjudication; refusal to transfer existing clearances from one agency to the next as a means of retaliation. There are others that I

list.

I have also detailed several examples of security clearance cases

I have handled, both favorable and unfavorable, at various agencies

that show you the types of circumstances that will occur.

In closing, what I would like to do is just give you a few specific

recommendations, and I have detailed them in my written testimony. I will just say a couple here.

One would be to create an independent body outside of the Federal agency involved. That could also be the Federal judiciary.

Right now, a Supreme Court case precludes any Federal court from

hearing a substantive security clearance appeal, no matter whether

even if it is based on discrimination, if it goes to the heart of the

substantive allegations, unless you are challenging procedural inefficiencies or constitutional violation, both of which are extremely

difficult to prove, and, frankly, very rarely happen, then you have

no recourse in the Federal judiciary whatsoever. Most judges will

claim based on Egan that they don’t have the capability or the

knowledge or ability under jurisdiction to hear a case. Yet you have

administrative judges under Article I who hear national security

clearance cases every day at the Department of Defense and the

Department of Energy. I cannot imagine an Article III judge cannot

do the same.

Require all Federal agencies to audiotape the security interviews

and the polygraph sessions. Many of these cases come down to who

said what and how exactly in the context did they say it.

Also, legislate additional protections into the system to include

the release of information—right now many agencies will withhold

even unclassified information—and more allow attorneys to be able

to take part in that process more so than today.

In the testimony I detail the numerous attempts and efforts,

mostly successful, where agencies have blocked me despite my having authorized access to classified information from possessing information that would help me represent my client, even if the information is at the same clearance level that I have allegedly been

granted access to.

Those are but just some of the examples I would hope you would

consider. I thank you for the opportunity. I can answer any additional questions or comments during the Q&A. Thank you.

[The prepared statement of Mr. Zaid follows:]

243

244

245

246

247

248

249

250

251

252

253

254

255

256

257

258

259

260

261

262

263

264

265

266

267

268

269

270

271

272

273

274

275

276

277

278

279

280

281

282

283

284

285

286

287

288

289

290

291

292

Mr. SHAYS. Just to clarify, you say that you are given clearance

in the process of representing a client?

Mr. ZAID. It will vary from agency to agency. It is not necessary

in many cases, but, for example, many of my clients are covert employees of the CIA or the DIA, and the very fact of their relationship to that agency is itself——

Mr. SHAYS. So is there a background check done to you? Are you

treated almost as if you were a Federal employee that has a background check?

Mr. ZAID. No. In fact, that has been one of the problems as we

try and argue that the Executive order or internal regulations

apply. The agencies will say, no, you are not an employee.

What happens is essentially we are granted interim secret clearances. The CIA likes to call it ‘‘limited security access approval,’’

which is a term that does not exist anywhere. And they will just

do what is called a NAC, a national agency check. Do you have a

criminal record? Does any other agency have derogatory information about you? And you may have to sign a non-disclosure secrecy

agreement. I have only had one background check conducted on

me, and that was because a Federal district judge ordered the CIA,

DIA, and DOD to conduct it through the Department of Justice

when they refused to grant me access to a classified manuscript.

Mr. SHAYS. Thank you.

Ms. Daley.

STATEMENT OF BETH DALEY

Ms. DALEY. Thank you, Chairman Shays. We really appreciate

that you are having this hearing today, and I also want to thank

you for taking leadership and a personal interest in the whistleblowers who have testified today. I think we have all learned quite

a bit from them. I know I have.

I am pleased to be here today to offer the Project on Government

Oversight’s thoughts on the current situation with regard to national security whistleblowers.

In response to recent national news stories, many Government

officials have decried the leaking of classified information to the

press. POGO shares some of these concerns. However, our organization is much more concerned that criminal leak investigations

and prosecutions will harm our Government over the long run by

chilling criticism and scrutiny of potentially illegal or unethical activity. The larger goal of preserving our constitutional system of

checks and balances will undoubtedly suffer.

Ideally, leaks of information to the news media would never happen. I think that is a sentiment that we all share. Unfortunately,

we are living in an extremely imperfect world with regard to national security whistleblowers who want to expose corruption, incompetence, illegal activities.

What drives whistleblowers to disclose classified information to

the press and to the public? We suspect an important reason lies

in the fact that this Government and this country, have failed to

create effective whistleblower protection programs.

All indications show that we have more whistleblowers coming

forward since September 11th, perhaps as much as 50 percent

293

more annually. Less clear is whether we are hearing what they

have to say.

Since the September 11th attacks, our Government has increasingly expanded the cloak of secrecy which keeps its activities hidden from the public. In some cases, this increased secrecy was warranted in response to the new threats that we face. However, in

many cases, the secrecy is being created in order to take an agency’s activities out of the public domain where they will be held accountable by the Congress, by watchdog organizations, by whistleblowers.

Those who retaliate against whistleblowers are rarely held accountable for their action. Even when a whistleblower is right—and

we have seen this time and time again—they are rarely compensated for the loss of their job, their income, or their security

clearance. As a result, there are few incentives for employees to

come forward.

In the past week, policymakers have asserted that the Intelligence Community Whistleblower Act effectively protects whistleblowers. In fact, this information is false. The act fails to give employees the right to challenge retaliation, and it even fails to say

that reprisals against whistleblowers will not be tolerated. As a result, the Pentagon’s Inspector General itself today had deemed the

title of the act a misnomer.

You are hearing important and compelling stories today. The fact

that a new National Security Whistleblowers Coalition has been organized is the best evidence that change is urgently needed. But

let me give you just one more example of another whistleblower.

During the late 1980’s, Richard Barlow worked in the CIA and

the Pentagon, and he uncovered A.Q. Khan’s efforts to move Pakistan’s nuclear weapons program forward. Mr. Barlow raised concerns internally about lies to Congress concerning Pakistan’s nuclear programs. He did not even go to Congress, but he expressed

concerns about the lies that were being told to Congress. And by

merely suggesting that Congress should be told the truth, Mr. Barlow’s stellar career was over. His security clearance was revoked.

He suffered years of retaliatory investigations. His career was in

tatters.

For over 15 years, he sought help to reverse the damage done by

this retaliation, and there is good reason to believe that if the Government had heeded Mr. Barlow’s warnings about Pakistan and its

proliferation activities, we wouldn’t be at the place that we are

right now with regard to Iran and its emerging nuclear weapons

program.

For the past year, the Senate Homeland Security and Governmental Affairs Committee has been considering whether or not to

grant Mr. Barlow his retirement. But despite appeals from former

high-level officials who saw firsthand what happened to Mr. Barlow, the Senate has failed to act.

If Members of the Congress and the Executive Board really are

committed to stemming the leaks of classified information to the

news media, they will do much more than launch witch hunts to

root out leakers. They will create safe, legal, and discreet ways for

national security whistleblowers to voice their concerns.

294

In particular, Congress needs to address the issue of security

clearance retaliation. Employees should be given the opportunity to

have a fair hearing by an impartial body that can rule on whether

a security clearance revocation is retaliatory and require its restoration, if needed.

In addition, laws like the Lloyd LaFollette Act which protect disclosures to the Congress by Government employees are toothless

without enforcement.

Other reforms that we would make are included in our ‘‘Homeland and National Security Whistleblower Protections’’ report,

which I request be submitted in the record.

I want to note that earlier today when I was watching the questioning from the Members of Congress, I was struck by the fact

that none of the whistleblowers here at the panel had ever been

told what their whistleblower protections were, and yet under Representative Van Hollen’s questioning, it was clear that everyone

knew what a criminal violation of the FISA Act was.

Criminal laws are taken very seriously by the executive branch,

and so if it became a crime to retaliate against whistleblowers, I

bet everybody would know about it and pay a lot closer attention

to it. And yet that is something that has never been done. So I encourage you to consider that option, and I know that several Members of Congress are putting forward proposals in that regard.

I should also say that the Inspector Generals have been a mixed

bag. There was a lot of questioning today about the Inspectors General. What was not made clear is that it is very dangerous to go

to the Inspectors General. There are leaks that happen from the

Inspectors General to the agencies, and so many employees realize

that by going to an Inspector General, they could be exposed within

their agency and face retaliation.

Thank you very much.

[The prepared statement of Ms. Daley follows:]

295

296

297

298

299

300

301

302

303

304

305

306

307

308

309

310

311

312

313

314

315

316

317

318

319

320

321

322

323

324

325

326

327

328

329

Mr. SHAYS. Thank you very much.

Mr. Devine.

STATEMENT OF THOMAS DEVINE

Mr. DEVINE. Thank you for inviting my testimony, and thanks

for the first congressional hearings in over a decade on the threat

to national security whistleblowers from security clearance retaliation.

Mr. SHAYS. Is that both the House and Senate or just the House?

Mr. DEVINE. I am sorry, sir?

Mr. SHAYS. Is that both the House and Senate? Are you saying

that this is the first in 12 years in either the House or Senate or

in the House?

Mr. DEVINE. That is right, Mr. Chairman.

Mr. SHAYS. In both chambers.

Mr. DEVINE. Both the House and the Senate. This forum is the

last step necessary for a congressional consensus on closing the security clearance loophole in the Whistleblower Protection Act. That

reform is essential for America’s national security. By giving whistleblowers genuine legal rights against the most common form of

harassment against those who challenge security breaches—yank

the whistleblower’s security clearance or otherwise block access to

classified information necessary to continue catching the security

breaches.

There are two reasons why these actions are the harassment of

choice. First, the consequences are much uglier and destructive

than mere termination. Revocation brands the employee who had

attempted to challenge security breaches as untrustworthy, and the

whistleblower likely will be blacklisted for the rest of his or her

professional life with a presumed scarlet ‘‘T’’ for potential traitor on

his or her professional chest. Second, bureaucratic bullies get a free

ride when they engage in clearance retaliation. For all practical

purposes, the only limit to abuse of power is self-restraint by those

considering security clearances as a weapon to retaliate.

This reform should be noncontroversial. In response to the 1990’s

House hearings, the House unanimously closed the security clearance loophole to the Whistleblower Protection Act in 1994, and

Chairman Davis has not opposed an analogous provision which has

unanimously been approved by the Senate Governmental Affairs

Committee three times, most recently in S. 494. It was included in

Congressman Platts’ initial version of H.R. 1317. He just said that

we need a GAO study to protect the record. This hearing is a far

superior substitute.

Based on experience representing over 100 national security

whistleblowers, GAP’s primary lesson learned is that abuses of secrecy enforced by repression are a severe threat to national security because they cover up bureaucratic negligence that sustains

unnecessary vulnerability to terrorism. I don’t think there is any

need to pile on the earlier testimony today why national security

whistleblowers are America’s modern Paul Reveres. They are exercising the freedom to warn, and our Nation is less safe from silencing the warnings of these front-line professionals before and since

September 11th about not being prepared for terrorists and natural

330

disasters at our airports, our nuclear facilities, our ports, our

coasts, our borders.

What are the obstacles to national security whistleblowers surviving professionally and making a difference at the same time?

The bottom line for employees trying to exercise their rights

against security clearance retaliation is that Kafka’s ‘‘The Trial’’ is

not just a 20th century novel. It is the 21st century reality for national security whistleblowers seeking justice. That is a strong conclusion, but it is based on fact.

Consider the following barriers: First, contempt for anti-secrecy

laws. As heard, agencies openly discipline and yank the security

clearances of whistleblowers by accusing them of unclassified disclosures shielded on paper under the Whistleblower Protection Act.

Second, noncompliance with the anti-gag statute. As a result,

agencies disregard this law unanimously passed by Congress for

the last 17 years that bans spending on agency gag orders to attempt to cancel the Whistleblower Protection Act and other goodgovernment laws. This has even spread to Congressional Research

Service staff, such as Mr. Lou Fisher, evaluating the effectiveness

of national security whistleblower laws, as well as to climate

change scientists, like Dr. James Hansen at NASA, trying to prevent national security threats from natural disasters.

Third, systematic conflicts of interest in enforcement of paper

rights. Agency officials have and abuse unchecked authority to

yank the clearances of those who blow the whistle against them.

This occurred when whistleblowers challenged nuclear weapons security breakdowns. It occurred recently involving lax monitoring of

leaks from 500 tons of chemical agents. You can get more information on that case study from Public Employees for Environmental

Responsibility representing the whistleblowers.

Internal review boards to police anti-retaliation rights are honor

systems. The agency that normally would be the institutional defendant instead is acting as the judge and jury of its own alleged

misconduct. In reality, whistleblowers only have the legal right to

ask an institution engaging in harassment to change its mind. Who

needs a law for that?

Fourth, the twisting in the wind syndrome. Agencies have and

abuse unrestrained power to suspend clearances for periods ranging from months to years without telling the employee the charges

that leave them officially untrustworthy until they disprove the

ghost allegations against them. Talk about a catch–22.

Fifth, internal review boards that make a caricature of due process. To illustrate in one case, after waiting 31⁄2 years where she

was assigned to her home without duties for a hearing that went

90 minutes and not a second longer, pre-Katrina emergency planning whistleblower Linda Lewis was not informed of her alleged

specific misconduct, not allowed to know who made the charges

against her, let alone confront her accusers, not allowed to present

witnesses or the lion’s share of evidence in her defense, only allowed to present her defense to a bureaucrat who couldn’t make

recommendations and was little more than a delivery boy forwarding a transcript, and, finally, received a decision by an anonymous

three-person panel that never laid eyes on her and upheld her revocation without explanation.

331

Sixth, the Twilight Zone. Agencies can deny reality at will, as occurred after a Department of Justice whistleblower successfully exposed, of all issues, leaks of classified information. He was informed, when he showed up for work shortly after, he never had

a clearance despite having contrary documentation and a record of

handling top secret data for the previous 18 months. There wasn’t

anything he could do.

Seventh, inconsistent rules for disclosure and protection. National security whistleblowers at the FBI and the intelligence agencies have the right to make classified disclosures to Congress under

controlled circumstances, but those at Civil Service agencies like

DOE, the Defense Department, or the Department of Homeland Security do not in all cases. Most fundamentally, all rights at the FBI

and intelligence agencies are honor system, compared to thirdparty-enforced anti-reprisal rights covering all but security clearance harassment and for other national security whistleblowers.

And, eighth, toothless channels to work within the system. The

Whistleblower Protection Act disclosure channels for employees to

work within the system are broken. Consider Mr. Levernier’s example today, and to just add a bit to that, the Office of Special

Counsel took over 21⁄2 years to evaluate a report that took the Department of Energy less than 6 months to investigate and write.

Then after conceding its blanket denials were contradicted by a

dozen internal agency reports, the Special Counsel ducked the

judgment call required by law whether the report passed or failed

as a good-faith resolution of this national security hazard.

National security professionals are much more likely to work

within the system if it is worthy of respect.

Thank you, Mr. Chairman. I have case studies to back any of

these examples and can offer recommendations.

[The prepared statement of Mr. Devine follows:]

332

333

334

335

336

337

338

339

340

341

342

343

344

345

346

347

348

349

350

351

352

353

354

355

356

Mr. SHAYS. Thank you.

Dr. Weaver.

STATEMENT OF WILLIAM G. WEAVER

Dr. WEAVER. Thank you, Mr. Chairman. I am happy to represent

the opinions of the National Security Whistleblowers Coalition,

which is an organization with membership exclusively made up of

national security whistleblowers.

Last week, Mr. Porter Goss, the Director of the Central Intelligence Agency, wrote in an editorial in the New York Times that

leaks cost money, leaks of national security information, they cost

a lot of money, and they also cost lives, and they cost effectiveness.

But what he glossed over, he glossed over the well-known and documented abuse of classification authority which is used to hamstring Congress and has been used for a long time to hamstring

Congress to prevent disclosure of embarrassing information, to

handicap political opponents, and to aid political friends. And it is

a term, ‘‘national security information,’’ that is so malleable, and

there is a mistaken belief that national security information is

somehow born, that there is not a decision made by somebody that

information is national security in nature and, therefore, cannot be

disclosed.

Classifiability in reality is often-times proportional to the amount

of embarrassment the information will cause if it is made public.

Let me disclose some classified information to you now: January

18, 1970. That is the birth date of Sibel Edmonds. That information

was protected by the state secrets privilege by the Department of

Justice, was not allowed to be given in an interrogatory in a suit

brought by September 11th family members, as well as the fact

that she speaks Azerbaijani, Farsi, and Turkish. Not only did this

information receive classification, but they managed to somehow

convince a Federal judge that information would cause grave damage to the national security if it was revealed. The fact that information is abused frequently by national security and classification

decisions is a well-known fact, but it is one that oftentimes is not

respected or recognized by Members of Congress.

I have three points I would like to make about the current system. First, it is broken, and I think to call it ‘‘a system’’ is actually

to give it a compliment that it does not deserve. IGs and the Office

of Special Counsel are at best impotent, and at worst they are collectors of intelligence, of employees, and they act as leg breakers

for the agency and enforcement mechanisms.

Even in the rare instances that they back whistleblower claims,

nothing happens. In the case of Sibel Edmonds, her accusations

and allegations were substantially justified by the Inspector General and no changes were made in the Federal Bureau of Investigation, and indeed, some employees were promoted. In the case of

Bogdan Dzakovic, at the then-FAA, his allegations were shown to

be credible by the Office of Special Counsel. Again, nothing happened there.

What we have now is a Frankenstein assemblage of good intentions, but, unfortunately, that assemblage leads to catastrophe. Oftentimes whistleblowers are lured in by the promise of protection,

357

and what they do is they founder on the rocks of agency culture

and other activities which are designed specifically to destroy them.

The present system must be removed root and branch. You need

to start over. It is not working. We have 30 years of ineffectiveness,

proven ineffectiveness, and it will do no good to try and add a second story to a house that is built on a flawed substrate.

Second, Congress is unnecessarily deferent to the executive

branch in matters of national security. There is an unseemly servility to the executive branch. There is a reluctance to embrace the

political nature of claims of national security. Congress is constitutionally empowered to receive all information; it must turn away

from nothing. It is now controlled by ‘‘the official family of the

President,’’ a phrase that has been repeated over and over again,

and it seems strange to me that the humble private who has a security clearance is worthy to handle information and the clerk of

Government is worthy to handle information, but Members of Congress somehow must not.

Third, the combination of deference to the executive branch and

this defective system yield danger to the public. It is a simple formula. No disclosure mechanism that is protected plus undue congressional deference and servility to the executive branch equals a

vulnerable citizenry. I think that we pay you to do better than

that, sir. I think over 30 years we have shown that the system does

not work over and over again. It is time to take it out and start

over.

[The prepared statement of Dr. Weaver follows:]

358

359

360

361

362

363

364

365

366

Mr. SHAYS. Thank you very much. I thank all four of you.

I am going to just ask a few questions, and then have counsel

ask some questions, and then I will be asking some others. The

previous panel lasted quite a long time. We had a lot of Members

here asking questions. I would like to know your reaction to the

first panel and what you would want to highlight for our subcommittee, for me and the staff as well. What do you think was the

most important point that we learned, the most important point

that was illustrated in the first panel.

Mr. ZAID. I will start over here. I would probably say the most

important point or the one that we could carry away, again, goes

to a lack of accountability or ability of the individual to go outside

of the same decisionmakers that are reaching the decision regarding their wrongdoing or alleged wrongdoing or clearance.

Tony Shaffer, Lieutenant Colonel Shaffer, is my client as well.

We provided information that not only mitigated, at least in my

own opinion, but refuted specific allegations. Very quickly, one specific allegation. He was alleged to have circumvented his chain of

command and gone to a General instead of talking to a Colonel on

certain matters that were classified. Well, the General gave us a

letter stating he had told then-Major Shaffer it was perfectly fine

for him to always come to the General and that he was acting

under the General’s order, not only mitigated it but refuted, you

know, word for word the allegation, yet——

Mr. SHAYS. This is additional information about your client. Tell

me what you heard today, though, that you think was something

you don’t want us to miss.

Mr. ZAID. It would be a need to set up something outside of the

current framework, whether that be the Federal judiciary to have

oversight or some independent body. The Inspector Generals’ offices, which I have dealt with most of them, are not able to handle,

for a variety of reasons that are too long to go into, this type of

mechanism, most of which because they are still within that same

office. You saw today in your response from the CIA where it comes

from Congressional Affairs rather than the Inspector General,

which is supposed to be independent within that body. So it would

be the ability to go somewhere independent to allow what the Executive order states should be a common-sense determination.

If you look through many of these clearance decisions and I am

not even sure what the number is that actually hold clearances,

but it is in the double digits, of course—publish their security

clearance decisions in redacted form: the Energy Department and

one portion of the Defense Department.

If you read through that, you will see that if not every single one,

certainly 99 percent of them can be reached on a very commonsensical basis that would not even require some modicum level of

expertise within the security field. Now, in some situations when

you are dealing with SAP programs and stuff like that, sure.

Mr. SHAYS. You are losing me here.

Mr. ZAID. What I mean is the agencies will tell you this is why

the judiciary does not have jurisdiction—they need expertise to

make or render these types of decisions that led to the loss of those

who testified—loss of the clearance who testified in the first round,

and that individuals such as yourself or myself as counsel or an ArVerDate 11-MAY-2000 11:19 Jul 20, 2006 Jkt 000000 PO 00000 Frm 00374 Fmt 6633 Sfmt 6633 D:\DOCS\28171.TXT HGOVREF1 PsN: HGOVREF1
367

ticle III constitutional judge does not have that expertise to render

what the President has said should be nothing more than a common-sense determination.

If you have that type of oversight, if you have that ability to go

somewhere, we wouldn’t see this panel.

Mr. SHAYS. I understand now. Thank you.

Ms. Daley.

Ms. DALEY. I think I was particularly struck by the difficulties

that each of the whistleblowers had to face in bringing forward information that you should know as a Member of Congress, that all

of us should know in the public as well, except, of course, if it is

classified and we can’t know.

It is clear to me that retaliation is something that is being allowed to take place over and over again against whistleblowers,

and it is mind-boggling what a silencing effect that must have on

people who work inside of the executive branch who want to bring

forward evidence of wrongdoing.

Mr. SHAYS. Thank you.

Before I go to you, Mr. Devine, Dr. Weaver, how many are a part

of your organization?

Dr. WEAVER. How many members do we have, sir?

Mr. SHAYS. Yes.

Dr. WEAVER. We have about 75 public members, and we have

members who are not public.

Mr. SHAYS. And they are all whistleblowers?

Dr. WEAVER. Yes, sir.

Mr. SHAYS. OK. Thank you.

Mr. Devine.

Mr. DEVINE. To me, the most significant points were that every

one of those witnesses was a public servant who is inspiring and

deserves our admiration. None of them still work for the Federal

Government. The lesson learned is you can’t get away with committing the truth and survive professionally. And the solution? Congress needs to get off the dime and pass the legislation to overhaul

the Whistleblower Protection Act and add enforcement teeth to

those paper rights so they cover all employees who need the protection against all the forms of harassment that they are hit with.

Mr. SHAYS. Mr. Devine, you have been doing this work for a

while?

Mr. DEVINE. I am sorry, sir?

Mr. SHAYS. You have been doing this work for a while?

Mr. DEVINE. Oh, yes, sir, since January 1979.

Mr. SHAYS. So tell me how it becomes a political issue. I mean,

it is not lost to me that we were told nothing has happened in the

last 12 years. That just basically coincides pretty much with when

Republicans took over. Why didn’t this happen before? What was

the reluctance? Has this become an ideological issue? Does this become a political issue? Does it become a power issue between the

White House and Congress? Where does it break down?

Mr. DEVINE. To be fair, Mr. Chairman, I think part of the reason

for delay was that up until a 1999 court decision, Members of Congress believed, with good justification, that the whistleblower law

did protect against security clearance harassment. A 1999 court

368

ruling said that the law had been imperfectly drafted and, therefore, Congress was going to have to go back and do it right.

Since that time, the issue has been swept up with all of the other

breakdowns in whistleblower law.

Mr. SHAYS. That is helpful. Thank you.

Ms. DALEY. Could I also just make a comment here?

Mr. SHAYS. Sure.

Ms. DALEY. Which is that I think this is really a question of the

struggle for power between the Congress and the executive branch.

This is not a partisan issue by any means.

For example, the Intelligence Community Whistleblower Protection Act, when it was passed in 1998, the Senate actually passed

a much stronger version of the bill which would have required all

intelligence agency employees to be made aware of the process that

they should follow for using that act. Under threat of a veto from

President Clinton, that was stripped out of the bill, as were some

other provisions that would have made the act much stronger. So,

you know, we have seen bad behavior in both parties. We have

seen good behavior in both parties. I really think that this is an

issue that is more about the Congress overseeing the executive

branch than anything else.

Mr. SHAYS. Thank you. That is helpful to me.

Dr. Weaver.

Dr. WEAVER. Yes, I believe in the previous panel the most important thing is they all agreed that there needed to be some body

independent of the Executive. Now, the Congress, of course, has a

long history creating commissions and trying to insulate those commissions from executive branch influence. So I think there is experience to draw on. I think it is possible that Congress could contemplate a commission that is insulated from executive influence

or create a new office in the Government Accountability Office to

oversee, to take over what is now OSC’s function, and to have more

teeth. That way it would be a longer reach for the executive to influence that office.

I would like to say, too, that despite the common belief, I think,

among attorneys and Members of Congress and the informed lay

public, the Supreme Court has never ruled that the President of

the United States has plenary authority over national security information or security clearances. Navy v. Egan was an internal dispute between the Navy and the MSPB. There was not a constitutional issue that was decided. That was a statutory issue in that

case. The question was not whether or not Congress could exercise

influence in the area of controlling or guiding national security information or security clearances. That issue has never been addressed. And I would find it remarkable that the Supreme Court

would believe that Congress does not have a substantial role in

guiding the national security information and the security of this

country.

Mr. SHAYS. Thank you. I am going to have counsel ask some

questions.

Mr. HALLORAN. Thank you, Mr. Chairman.

Mr. Zaid, in your testimony, one of the problems you cite is a

delay of implementation of new adjudicative guidelines for clearances. Could you tell us more about that?

369

Mr. ZAID. Sure. On December 29th of last year, Stephen Hadley,

the National Security Adviser, issued new adjudicative guidelines

to replace those that President Clinton issued in 1995 and then

which were implemented apparently by 1997. This, again, has become a very interesting dichotomy between the powers of the Presidency and internally within departments, in fact, because different

departments are taking different positions.

These new adjudicative guidelines are actually more favorable to

prospective clearance holders or current clearance holders.

Mr. HALLORAN. In what respect?

Mr. ZAID. Especially, for example, in the cases of foreign preferences. Foreign preferences, which would be as simple as having

relatives overseas. There is nothing whatsoever in the

truthworthiness or credibility or any actions that the individual

has taken, but because you have relatives who live over in the People’s Republic of China, you are seen as a security risk because

China may torture those individuals or threaten to you that they

may be tortured, so you can’t have a clearance, which is inconsistently applied throughout the Federal Government.

The new regulations make it a little bit more difficult in concept

for an agency to deny an individual a clearance based on foreign

preference. They are more country-specific. They want you to look

more at which country is involved. I had a case where a Canadian

citizen was said to be a danger because he still had his Canadian

citizenship and had to renounce it, or Great Britain, or numerous

other countries where they are actually allies. So now there is supposed to be a distinction between allies and perceived enemies.

There is also supposed to be more of a distinction about the level

of contact that you have with your perceived family member that

is overseas.

Mr. HALLORAN. This is a new attempt to standardize the consideration of these factors that was not there before?

Mr. ZAID. Well, it is an attempt to at least minimize the hundreds, if not potentially thousands of people who have been denied

clearances based on very minuscule information. I had one case

where a clearance was denied recently because the fellow had family members in Pakistan, and the administrative judge said because Pakistan is on the front lines of terrorism where the terrorists live and operate, I can’t trust that this person has a clearance.

But 3 years earlier, in the few weeks after September 11th, another administrative judge had ruled based on very similar facts of

relatives over in Pakistan, Pakistan is on the front lines of terrorism, it is standing side by side with the United States as our ally,

so we are going to give this fellow his security clearance. And this

is at the Defense Office of Hearings and Appeals [DOHA]. So you

have that type of inconsistency.

Mr. HALLORAN. What is DOD’s problem with these new regulations?

Mr. ZAID. The new regulations, DOD takes the position that the

President does not have the authority to tell it what to do without

it putting forth a notice and comment period, because DOD has

adopted the Executive order into its own regulations. So DOD, even

though there is no way anybody could—if they offered a comment,

DOD could not modify what the President has issued as far as regVerDate 11-MAY-2000 11:19 Jul 20, 2006 Jkt 000000 PO 00000 Frm 00377 Fmt 6633 Sfmt 6633 D:\DOCS\28171.TXT HGOVREF1 PsN: HGOVREF1
370

ulations. They feel they have to issue these regulations in a notice

and comment period in the Code of Federal Regulations and then

wait. And their response is—because I have talked to the General

Counsels about this—that this is what they did back in 1995. It

took 18 months for those regulations to finally get implemented in

1997, so who knows when it is going to be?

The Justice Department lawyers who have been on this take the

opposite view and say, look, Hadley’s cover memo says—and he is

speaking for the President—these regulations are to be implemented immediately, and that means they are to be applied immediately. You run into additional problems because does it apply to

current pending cases where you haven’t yet had the appeal, or

does it apply to only new cases that come along, and that question

also seems to vary throughout the different agencies.

Mr. HALLORAN. Thank you.

Ms. Daley, let’s talk about the Department of Energy. I know

POGO has done a lot of work there. We had heard sometime in the

course of other investigations about a pretty entrenched culture of

shoot the messenger there. Was that your experience as well?

Ms. DALEY. Absolutely, that has been our experience. We actually worked with a number of people inside of the DOE Nuclear

Weapons Complex to expose wrongdoing and unethical or incompetent activities. Rich Levernier was one of the people that we

worked with over many years, and we have been able to find a

place where anonymous disclosures through POGO have been very

effective at—you know, an effective avenue for people to voice their

concerns. In fact, we have been able to help to move some things

forward, but as you know, it has been very difficult to force the Department of Energy to change, in part because of the entrenched

culture and also in part because of the fact that there are some

people there who have protected the institution’s interests at all

costs.

Mr. HALLORAN. So you have become their kind of private IG?

Ms. DALEY. Pardon?

Mr. HALLORAN. You have become their kind of private IG?

Ms. DALEY. Exactly. We have become a private IG, and I would

like to suggest to everyone in Congress that they can do the same.

And I know that in this subcommittee you have done some of that.

I think other committees should become private IGs. If you become

known as a known quantity in a particular agency as a place where

you can safely go, people will come to you.

Mr. HALLORAN. You mentioned before, in terms of the notional

end state of a fixed system here, that it would be much like whistleblower protections government-wide, but you used the word ‘‘discreet,’’ acknowledging the somewhat unique nature of national security information. How would you implement ‘‘discreet’’?

Ms. DALEY. How do I define ‘‘discreet?’’

Mr. HALLORAN. Well, in the system you envision, how would it

be discreet, or at least more discreet than the one available to regular Title 5 employees?

Ms. DALEY. Well, I believe that people should be given the option

of disclosing wrongdoing anonymously if they so choose. Currently

in the Inspectors General, there has been mixed results about

when that happens. In some cases, people’s identities have been exVerDate 11-MAY-2000 11:19 Jul 20, 2006 Jkt 000000 PO 00000 Frm 00378 Fmt 6633 Sfmt 6633 D:\DOCS\28171.TXT HGOVREF1 PsN: HGOVREF1
371

posed when they didn’t want them to be exposed. I know that at

different points in time there have been leaks from the hotlines of

IGs, so a whistleblower will submit something that—you know, a

disclosure about wrongdoing, and a couple weeks later their boss

says, ‘‘Hey, thanks a lot for that hotline disclosure.’’

So, you know, ‘‘discreet’’ in my mind means a safe place where

someone can go to disclose wrongdoing and potentially work with

someone to shed light on it.

Mr. HALLORAN. Thank you.

Mr. Devine, let’s talk about gag rules. You talked about kind of

annual legislation to prevent the spending of money on gag rules,

and yet the executive branch for as many years takes the position

they can still execute gag rules using someone else’s money? Or

how does that work?

Mr. DEVINE. The procedure for it, sir, is that it is illegal to spend

any Federal funds to implement or enforce a non-disclosure policy,

form, or agreement unless it contains an addendum at the end,

whether it is an oral briefing or in writing. And the addendum

makes very clear that in the event of a conflict between those nondisclosure rules and a list of good-government statutes, ranging

from whistleblower laws like the Whistleblower Protection Act or

the Lloyd LaFollette Act on communications with Congress, to the

Intelligence Identities Protection Act, which is a national security

shield, that in the event of a conflict, the terms of those laws supersede contradictory language in the gag order, and that, in fact, the

language of those good-government laws is incorporated by reference into the terms of the non-disclosure policy.

It was initially set up to deal with people losing their security

clearances for disclosing information that was called ‘‘classifiable.’’

That was information that wasn’t classified, but after the fact there

was a decision it should have been, usually because someone had

blown the whistle with it. Now it has been very valuable against

the recent pattern of gag orders, and it is applicable to concepts

like sensitive but unclassified or for official use only. The problem

with it is there is no remedy for someone to enforce those rights,

and that is in H.R. 1317 and S. 494.

Mr. HALLORAN. All right. Thank you.

Dr. Weaver, describe a little further how reprisal actions might

be criminalized and how either it would be so difficult to prove the

intent element of that or it would be so oppressive that managers

would not be able to manage.

Dr. WEAVER. There are lots of allied criminal activity—obstruction of justice, fraud in some cases. So I think that the idea of criminalizing behavior is not particularly difficult and presents no more

problems than other criminalized activity in the agencies.

Of course, you have to walk a fine line. People generally only respond to coercive actions: you threaten their property or you

threaten their liberty. You would have to be extremely careful how

you went about it, but I think one of the preconditions would be

that the retaliation was done to prevent disclosure of other criminal activity that in and of itself is criminal, such as fraud or lying

to Congress or other sorts of activities.

So I think there would have to be a predicate to it, a predicate

offense, and I think that it could be fraud, obstruction of justice,

372

things of that nature. But as of now, it is costless to retaliate

against employees. There is no cost visited on the people that do

it. In fact, oftentimes they are promoted for protecting the agency.

They are rewarded for doing a good job of carving someone out of

the herd who is creating problems and getting rid of them.

Mr. HALLORAN. Thank you.

Thank you, Mr. Chairman.

Mr. SHAYS. I would like to just end by asking if there is anything

that you want to put on the record before we go to our new panel,

any issue that we just need to make sure is a part of the record

that is not right now.

Dr. WEAVER. Well, I would like to say that we oppose S. 494 and

H.R. 1317, and the reason is that specifically national security

whistleblowers excluded from both statutes, proposed statutes.

There is no way, therefore, since our entire membership is made

up of national security whistleblowers, that we can support that.

Mr. SHAYS. I am sorry. So yours is an association of national

security——

Dr. WEAVER. Solely national security whistleblowers. The atmosphere, I think, in Government is such that it should be remarked

upon, even employees that work for Congress. For example, Lou

Fisher apparently, who is a prestigious researcher in the Congressional Research Service, is facing termination, strangely enough,

for writing a CRS piece about retaliation against national security

whistleblowers, and now he is suffering retaliation for writing the

piece and commenting to Gov. Exec. He said, for example——

Mr. SHAYS. I am smiling because there is, obviously, an irony

that is totally unacceptable. Is this a case that I should know

about? Is this a case——

Dr. WEAVER. Sir, I think you should. He told Gov. Exec.—this is

a near quote—that managers now can retaliate against whistleblowers with abandon and nothing happens to them. And Director

Mulholland has ordered him to apologize to his division manager

and, if not, apparently faces termination for that. So, I mean, this

deference to——

Mr. SHAYS. OK. Yes, the point I am saying is that the report is

written, but he actually feels that he will face consequences.

Dr. WEAVER. There is no doubt about it. He already has.

Mr. DEVINE. Mr. Chairman, I would second Dr. Weaver’s point,

that the Congressional Research Service is another agency not covered by the Whistleblower Protection Act, and they have currently

demonstrated that they need to be; also, that Mr. Fisher needs all

the solidarity he can get from Congress. Just yesterday his boss let

him know that the apology that he turned in wouldn’t suffice because—this is my paraphrase—it wasn’t sufficiently groveling.

Ms. DALEY. I would support what my two colleagues have said.

I think it is absolutely unfortunate that Mr. Fisher is being put in

this position, and I do wonder why the agency has sought to silence

his remarks about whistleblowers. What is behind that? And I

think it might be interesting for you to try and find out because

if there is a dynamic that is occurring with regard to his report,

I wonder if there is pressure being placed on other researchers as

well to alter their determinations.

Mr. SHAYS. Thank you.

373

Mr. ZAID. Two comments, Mr. Chairman. Dr. Weaver is correct

about the Supreme Court case of Egan. The problem is it has been

interpreted by all the lower courts to be completely expansive and

controlling with respect to any substantive security clearance challenge. I want to read one sentence to you from that because it applies directly to this committee and this Congress, and it is talking

about deference to the executive branch on matters of military and

national security, and it says: ‘‘Thus, unless Congress specifically

has provided otherwise, courts traditionally have been reluctant to

intrude upon the authority’’—yada, yada. So the Supreme Court is

putting it right into the court of Congress to tell it differently as

to whether or not you want these types of claims to go before it.

With that, the only thing I want to say, because I think it is extremely important because it does the most damage many times to

anyone with respect to the clearance or the whistleblowers, and

that is the undue delay and the unpaid suspensions, and it varies

throughout the agencies. Most of these clearance cases will take

minimum 6 to 12 months to get resolved, oftentimes longer than

that, 12 to 24 months. Some of the agencies, like the Department

of the Army and the Department of the Air Force, will place those

individuals on unpaid suspensions during that entire period of

time. And so you can imagine, again, as I said before, what impact

that has. Of course, it also creates a bankruptcy problem that is

itself a justification for revocation of a security clearance.

DIA, to its credit, the one thing I will actually give it credit,

places its people on paid suspension during this time period. I have

had clients routinely go 2 years in paid suspension while their

clearance matter is adjudicated. Now, that might raise a different

issue for waste, fraud, and abuse for paying somebody to do absolutely nothing, but I would say it is at least better than being in

this unpaid suspension route.

Mr. SHAYS. I would agree with you. I would agree.

Mr. ZAID. And that is even when there is unclassified work available for that individual to perform. They will still place them in unpaid suspension. And I want to thank you for your attention to this

issue.

Mr. SHAYS. In 1994 or 1995, we came in with a Congressional

Accountability Act, which was to get Congress to abide by all the

laws we impose on the rest of the Nation. And clearly that whistleblower statute should apply not just to CRS; it should apply to our

own offices and so on. So, you know, we need to take a good look

at that.

Let me do this. We have kept our last panel waiting 4 hours, and

I think I need to get to that panel as well, obviously now rather

than much later. So I thank you all very, very much.

Our final panel is Mr. James McVay, Deputy Special Counsel,

U.S. Office of the Special Counsel; Mr. Thomas Gimble, Acting Inspector General, Office of the Inspector General, Department of Defense, accompanied by Ms. Jane Deese, Director, Military Reprisal

Investigations, and Mr. Daniel Meyer, Director, Civilian Reprisal

Investigations; testimony again from Mr. Glenn A. Fine, Inspector

General, Office of the Inspector General, Department of Justice;

and Mr. Gregory Friedman, Inspector General, Office of the Inspector General, Department of Energy.

374

I am sorry, I should have gotten you before you sat down. You

know what, you can stay sitting, if you want. Good grief, you have

been—I am swearing you in. But you do not need to stand for this.

If you would raise your right hand, and anybody else who will be

testifying, please raise your right hands.

[Witnesses sworn.]

Mr. SHAYS. Note for the record that the witnesses have responded in the affirmative.

I want to, again, thank you. As Government officials, it is usually

the practice that you would go first. I hope it is evident to you why

we didn’t want you to go first, is basically the system is being in

question. I have huge questions. I didn’t want to hear about how

the system works in theory; I want to hear how it works in practice. I would love dearly for you, besides your testimony, if you feel

so inclined, to just tell us how you feel about what you have heard

and where the system is broken and where it needs to be fixed.

You didn’t invent the system. You didn’t draft the legislation.

You are implementing it to the best of your ability. I want to know

how we fix the system. And if you don’t think it needs to be fixed,

I really need to have you tell me why you don’t think it needs to

be fixed.

So, Mr. McVay, you have the floor.

And the other thing I will say to you is—you have waited until

the end—I will hear your testimony as long as you want to make

your testimony. And we won’t leave until everything you want to

put on the record is on the record.

Thank you.

STATEMENTS OF JAMES McVAY, DEPUTY SPECIAL COUNSEL,

U.S. OFFICE OF THE SPECIAL COUNSEL; THOMAS GIMBLE,

ACTING INSPECTOR GENERAL, OFFICE OF THE INSPECTOR

GENERAL, DEPARTMENT OF DEFENSE, ACCOMPANIED BY

JANE DEESE, DIRECTOR, MILITARY REPRISAL INVESTIGATIONS, OFFICE OF THE INSPECTOR GENERAL, DEPARTMENT

OF DEFENSE, AND DANIEL MEYER, DIRECTOR, CIVILIAN REPRISAL INVESTIGATIONS, OFFICE OF THE INSPECTOR GENERAL, DEPARTMENT OF DEFENSE; GLENN A. FINE, INSPECTOR GENERAL, OFFICE OF THE INSPECTOR GENERAL, DEPARTMENT OF JUSTICE; AND GREGORY H. FRIEDMAN, INSPECTOR GENERAL, OFFICE OF THE INSPECTOR GENERAL,

DEPARTMENT OF ENERGY

STATEMENT OF JAMES McVAY

Mr. MCVAY. Mr. Chairman, thank you for inviting me here. I am

the Deputy Special Counsel of the U.S. Office of Special Counsel

[OSC]. I am pleased to be here to explain our office’s role in protecting Federal whistleblowers from retaliation. The Office of Special Counsel is an independent Federal investigative and prosecutorial agency. Our authority and responsibility come from four Federal statutes: the Civil Service Reform Act; the Whistleblower Protection Act; the Hatch Act, which prevents partisan political activity in the Federal workplace; the Uniformed Services Employment

and Reemployment Rights Act, which ensures the reemployment of

servicemembers. OCS’s primary mission, however, is to safeguard

375

the merit system by protecting Federal employees and applicants

from prohibited personnel practices and, especially, reprisals from

whistleblowing.

OSC receives, investigates, and prosecutes allegations of prohibited personnel practices, with an emphasis on protecting Federal

Government whistleblowers. OSC has authority to seek corrective

action for aggrieved employees, such as back pay and reinstatement to their jobs. We do this through negotiation with the agency

or by filing an action with the Merit Systems Protection Board.

OSC is also authorized to file complaints at the Merit Systems Protection Board to seek disciplinary action against managers who

commit prohibited personnel practices. Punishment and disciplinary action cases can range from a simple letter of counseling all

the way to debarment from Federal service.

OSC also provides a secure and confidential channel through its

Whistleblower Disclosure Unit for Federal workers to disclose information about various workplace improprieties, including violations of law, rule, regulation; gross mismanagement, including violations of waste of funds, abuse of authority, and substantial danger to public health and safety.

As I stated earlier, protecting employees and applicants from reprisal from whistleblowing was a primary purpose of the Civil

Service Reform Act. However, we have no jurisdiction to handle

claims from intelligence agency employees such as the Central Intelligence Agency, the Federal Bureau of Investigation, Defense Intelligence Agency, the National Security Agency, and others specifically excluded by the President. OSC takes no position on the merit

of whether or not we should have this jurisdiction. There are other

organizations and professionals that are able to more competently

discuss these issues. Nonetheless, I can testify as to how OSC investigates and improves whistleblower retaliation claims. I hope

this can be of benefit to this subcommittee in rendering any appropriate proposed legislation.

I would now like to preface the remainder of my remarks or comments by explaining what I mean when I say the word ‘‘whistleblower,’’ and not just in the context of a Government employee.

To us, in the theoretical sense I am talking no less than good

versus evil and right versus wrong. You saw that earlier today. In

its purest form, a whistleblower is an individual who is willing to

take on odds, often in face of danger and retaliation, to bring to

light of day a wrong that has been committed against society. Their

intention is no less than creating a better society in which to live

and a more ethical government to rule us all. In fact, I believe the

American Republic can not long survive without disciplined Government and a fair and honest corporate structure. Whistleblowers

serve this end.

America has the finest tradition of whistleblowers. Popular examples are Serpico, who brought to light corruption in the New

York Police Department. Another one is ‘‘the insider,’’ who blew the

whistle on the tobacco industry for making their products more addictive.

A more relevant example for our purposes is Ernie Fitzgerald,

who brought to light billions of dollars in cost overruns in the construction of the C–5A transport years ago. It cost him his job when

376

his managers retaliated against him. His case was one of the

groundbreaking cases reviewed in the Leahy Commission report

which later gave us the Civil Service Reform Act.

The Office of Special Counsel receives up to 700 whistleblower

reprisal claims per year. Additionally, we receive approximately

450 whistleblower disclosure cases per year. After an initial screening for jurisdiction and to ensure the whistleblower has stated a

prima facie case, the meritorious reprisal cases are sent to our Investigation and Prosecution Division. Ultimately the case may end

up in trial in front of the Merit Systems Protection Board. In reprisal cases, OSC must establish the following elements by preponderant evidence. Hopefully, this can be of help.

We must show that the complainant made a protected disclosure,

first. We must then show that there was a personnel action taken

in regard to that employee. The third is the official responsible for

the personnel action, the manager, knew about the complainant’s

protected disclosure. And last, the protected disclosure, we have to

prove, was a contributing factor in the official taking the personnel

action.

Once we establish these elements, then the agency has the right,

under the laws written by Congress, to defend the action by showing with clear and convincing evidence that it would have taken

the action even in the absence of the claimant’s protected disclosure.

In conclusion, I would like to quote one of the Founding Fathers.

In 1776, John Adams said: ‘‘Good government is an empire of

laws.’’ At OSC we believe in an empire of laws which create good

government and inspire integrity and public trust.

Thank you.

[The prepared statement of Mr. McVay follows:]

377

378

379

380

381

382

383

Mr. SHAYS. Thank you. Before going to our next witness, all the

cases that you heard today, you would not have handled any of

them. Correct?

Mr. MCVAY. The only one I am familiar with, sir, is the

Levernier case. And that was his disclosure case, his prohibited——

Mr. SHAYS. That would come under your jurisdiction; the others

would not have come under your jurisdiction?

Mr. MCVAY. That is correct.

Mr. SHAYS. But his would have?

Mr. MCVAY. That is correct. His would have, that is correct.

Mr. SHAYS. OK. Thank you.

Mr. MCVAY. Let me make that clear, if I can. The revocation of

a security clearance is not considered a personnel action. In addition, as I explained in my testimony, there are certain agencies

that are not covered under the auspices of the Special Counsel or

the Merit Systems Protection Board as it relates to those. In essence, there are two ways that prevent us from investigating and

potentially prosecuting or seeking corrective action for a complainant in this setting.

Mr. SHAYS. OK, tell me again the two ways?

Mr. MCVAY. One, the statute is very clear and the President can

even except further agencies from coverage under the act.

Mr. SHAYS. Right.

Mr. MCVAY. Second, the revocation of a security clearance is not

considered a personnel action.

Mr. SHAYS. OK. Thank you.

Mr. MCVAY. Does that answer your question?

Mr. SHAYS. It does.

Mr. Gimble, thank you.

STATEMENT OF THOMAS GIMBLE

Mr. GIMBLE. Mr. Chairman, thank you for the opportunity to appear this afternoon to discuss whistleblower protections within the

Department of Defense.

Mr. SHAYS. You know, you are very gracious, Mr. Gimble, in not

saying ‘‘this evening.’’ [Laughter.]

Thank you.

Mr. GIMBLE. I was getting to that, Mr. Chairman.

Mr. SHAYS. Yes, I know.

Mr. GIMBLE. These protections include prohibiting reprisal

through suspension or revocation of security clearances.

I am accompanied here today by Ms. Jane Deese, the Director of

our Military Reprisal Investigations, and Mr. Dan Meyer, the Director of our Civilian Reprisal Investigations.

Based on the information from our Defense Hotline, reprisal complaints involving the suspension or revocation of security clearances are rare. One reason for the rarity may be due to the significant due process protections found in DOD regulation 5200.2-R,

Personnel Security Program.

The most critical protection provided employees is that the supervisor recommending an unfavorable action against an employee’s security clearance is not a part of the adjudication process. Instead, the security clearance decisions are adjudicated by security

384

professionals that work in one of the eight DOD central adjudication facilities.

However, any system can be abused, and my office has broad responsibility for investigating allegations of reprisals. Three specific

whistleblower statutes in Title 10 apply to DOD. Section 1034 applies to the military personnel; section 1587 applies to civilian nonappropriated fund employees; and section 2409 applies to employees of Defense contractors.

The Office of Special Counsel has jurisdiction over prohibited

personnel practices taken against most Title 5 civilian appropriated

fund employees in executive agencies, including the Department of

Defense. The Office of Special Counsel does not have jurisdiction

over employees of intelligence agencies that have been excluded by

the President. For employees of the intelligence agencies as well as

the other DOD employees, section 7 of the Inspector General Act

gives my office broad authority to investigate allegations of reprisals against whistleblowers.

One statute often confused as providing protection from reprisal

is the Intelligence Community Whistleblower Protection Act of

1998. The purpose of the act is to provide a means to communicate

classified information to Congress from the executive branch employees engaged in intelligence and counterintelligence activities.

The act in itself, however, does not provide statutory protection

from reprisal. We have received only three of these complaints

since 1998, and none have involved the suspension or revocation of

a security clearance.

Within my office there are two directorates responsible for conducting and overseeing reprisal investigations. The Military Reprisal Investigations Directorate investigates allegations of reprisals submitted by members of the armed forces, nonappropriated

fund employees, and employees of Defense contracts. Under statute, my office is required to investigate or oversee the investigation

of all reprisal complaints submitted by members of the armed

forces.

My office established the Civilian Reprisal Investigations Directorate [CRI], in 2004 to provide an alternate whistleblower protection program for Title 5 employees and in particular the employees

of Defense intelligence agencies who do not have OSC protections

under Title 5.

I have recently proposed a new DOD instruction formalizing a

general Title 5 civilian whistleblower protection program. This instruction is currently in formal coordination within the Department

and will govern the policies and procedures to assist civilian employees who allege reprisal for their whistleblowing activities.

Creating and maintaining an environment where Government

employees feel safe to report fraud, waste, and abuse is crucial to

good governance. Protecting whistleblowers is one of the key duties

of the Inspector General. I appreciate your interest in this very important issue.

That concludes my statement.

[The prepared statement of Mr. Gimble follows:]

385

386

387

388

389

390

391

392

393

394

395

396

397

Mr. SHAYS. Thank you. I am just going to tell all of you, I will

want you to relate what you are telling me, in theory and maybe

in practice, how it interfaces with what you have heard. That will

be helpful to me.

Mr. Fine.

STATEMENT OF GLENN FINE

Mr. FINE. Thank you, Mr. Chairman, and thank you for inviting

me to testify about the role played by the Department of Justice

Office of the Inspector General and the procedures we follow for investigating whistleblower complaints in the FBI.

Whistleblowers serve a valuable function in exposing waste,

fraud, and abuse in Government programs, and in so doing they

deserve protection from retaliation. Although FBI employees are

specifically excluded from the Whistleblower Protection Act, at

Congress’s direction the Department of Justice has implemented a

process for investigating allegations by FBI employees who allege

that they have been retaliated against for making protected disclosures. Under this process, the OIG and the Department’s Office of

Professional Responsibility share jurisdiction for investigating allegations of reprisal by FBI whistleblowers.

In my written statement, which I will not repeat here, I describe

in detail the procedures applicable to FBI employees and how the

OIG investigates claims of retaliation. In the last 5 years, the OIG

has initiated 25 investigations into allegations of reprisal raised by

FBI employees. The allegations vary from poor performance reviews to termination of the employee. We have devoted significant

resources to investigating these cases. They often involve a large

number of interviews and result in detailed reports setting forth

our findings. The complaints involve difficult issues, such as determining if the stated reasons for the personnel action are credible

or if the actual motive was to retaliate for a protected disclosure.

The OIG views an allegation of retaliation as a serious matter.

Even in cases where the complainant does not qualify for whistleblower protection, the OIG can investigate the allegations, and we

often do. One recent example is noteworthy. In a matter involving

Sibel Edmonds, an FBI contract linguist who did not qualify for

whistleblower protection because she was not an FBI employee, the

OIG investigated her complaints and concluded that the allegations

of misconduct she raised were a contributing factor in why the FBI

terminated her services.

I would like to now address the complaints raised by former FBI

Agent Mike German, who testified earlier. We found that an FBI

official had retaliated against him for raising concerns about how

the FBI was handling an investigation in Orlando, FL. We also

found that the FBI mishandled the Orlando investigation, including failing to properly document meetings and altering documents.

However, after our independent review of the evidence, including

the key transcript of the meeting between an FBI confidential informant and the subjects of the investigation and recordings of

other meetings, we did not find that the underlying FBI investigation represented a viable terrorism case. The OIG carefully reviewed the evidence, some of which Mr. German did not have acVerDate 11-MAY-2000 11:19 Jul 20, 2006 Jkt 000000 PO 00000 Frm 00405 Fmt 6633 Sfmt 6633 D:\DOCS\28171.TXT HGOVREF1 PsN: HGOVREF1
398

cess to, to reach that conclusion. In fact, this was the same conclusion reached by the FBI in two separate reviews of the matter.

I know Mr. German disagrees with this conclusion, but in our

view, this is what the evidence showed. While the OIG is not hesitant to criticize the FBI or substantiate the claims of a whistleblower, in this case our investigators did not find the evidence substantiated all of Mr. German’s complaints. But they did substantiate many.

Finally, a main topic of this hearing concerns retaliation against

whistleblowers through suspension or revocation of their security

clearances. According to OIG records, since enactment of the FBI

whistleblower regulations in 1999, the OIG has not received any

complaints from FBI employees alleging that their security clearances were suspended or revoked in retaliation for making a protected disclosure.

Moreover, the Department of Justice has a process for FBI employees to appeal security revocations. In 1997, the DOJ created

the Access Review Committee [ARC], to hear appeals from any

DOJ employee whose security clearance has been revoked or denied

by any DOJ component, including the FBI. We asked ARC officials

whether they were aware of any appeal in which the employee alleged that a security clearance was revoked in retaliation for a protected disclosure. They also did not believe there had been any

such complaints.

In conclusion, whistleblowers who raise good-faith allegations of

misconduct about activities in their agencies play an important role

in ensuring transparency and accountability throughout the Government, and the OIG will continue to expend significant resources

to investigate allegations of whistleblower retaliation raised by FBI

employees.

That concludes my statement. I will be pleased to answer any

questions. Thank you very much.

[The prepared statement of Mr. Fine follows:]

399

400

401

402

403

404

405

406

407

408

Mr. SHAYS. Thank you very much.

Mr. Friedman.

STATEMENT OF GREGORY H. FRIEDMAN

Mr. FRIEDMAN. Good night, Mr. Chairman.

Mr. SHAYS. Oh, not yet. You are not free to leave yet. [Laughter.]

Mr. FRIEDMAN. I am pleased to be here at your request to testify

on whistleblower protection at the Department of Energy. We share

your concern that whistleblowers be free to express themselves

without fear of retaliation. The willingness of whistleblowers to

step forward is absolutely vital and essential to the mission of the

Office of Inspector General and to the pursuit of good government.

The Department of Energy has approximately 15,000 Federal

employees and 100,000 contractor employees. The Office of Inspector General typically receives over 1,000 contacts a year from these

employees and other persons raising concerns about aspects of departmental operations. We consider all of these individuals to be

whistleblowers whether or not they request formal status.

My full testimony describes the body of our work in the whistleblower protection area. Let me simply say that, as I have testified

previously before Congress, in my view the single most important

element in this process and in improving the process in relationship to the testimony that you received earlier—which is the question that you have posed—is ensuring that the various departments and agencies promote an environment where both Federal

and contractor employee concerns can be raised and addressed

without fear of retaliation. We take our role in this process seriously and will continue to do so.

Let me share with you five points, hopefully tied in to getting to

the root cause of the problems that you heard discussed earlier

today, which I think are important considerations that warrant

your attention.

First, there is a problem, clearly, with timeliness of the processing of retaliation complaints, and in this case the delay, in essence,

festers and causes all sorts of redundant problems that occur following the core and the root issue itself.

Second, there needs to be a level of management support for

whistleblowers. That is, the tone at the top at each of the agencies,

each of the departments needs to suggest that we have an environment, we promote an environment, we insist upon an environment

in which whistleblowers are free to express their views.

Third, the communication between the departments and whistleblowers and the IGs and whistleblowers need to be improved.

Fourth, I think there may be merit in the increased use of mediation and arbitration to facilitate the resolution of concerns.

Finally, it is absolutely imperative, in my view, to hold Federal

and contractor officials accountable for their actions with respect to

whistleblowers.

I will be pleased to answer your questions.

[The prepared statement of Mr. Friedman follows:]

409

410

411

412

413

414

415

416

Mr. SHAYS. I would like each of you to give me the justifications

of why we should treat national security employees any differently

than we treat any other employee.

Mr. MCVAY. Mr. Chairman, as I said in my testimony——

Mr. SHAYS. This time I don’t think your mic is on.

Mr. MCVAY. I apologize.

As I said in my testimony, we defer to those who have expertise

in this area. We have not been involved in the investigation, prosecution, or in attempting, if you will, to seek corrective action for

these individuals. We don’t know what the effect of OSC authority

going into these situations would be on other national security

issues. And so we would defer to those who have been in this area,

such as these IGs you have before you today.

Mr. SHAYS. Is that a no or a yes?

With all due respect, I think what you were saying is you are not

allowed to have an opinion, or you don’t have an opinion?

Mr. MCVAY. We do not have an opinion, sir.

Mr. SHAYS. OK. Mr. Gimble.

Mr. GIMBLE. Mr. Chairman, we take the whistleblower protection

business very seriously. And I think the thing that I would just

leave with this is that we have put together an instruction in DOD

that would formalize and give the intelligence community participants in DOD the knowledge that we are going to investigate very

rigorously any of the reprisal actions.

Now, is that covered in the statute? We believe it is covered

under the auspices of the IG Act. The clarity of all the other places,

maybe it leaves something open to discussion, but we think that we

have the responsibility and the authority to give those folks the

protection that they need.

Mr. SHAYS. And it is good that you feel that way since you are

in charge of it. But tell me why the process should be any different

for those who are involved in national security issues. Why should

the process for protecting a whistleblower be any different?

Mr. GIMBLE. You are talking about from the standpoint of if we

take the Title 5 civilians? I have several groups of people that I am

responsible for and I have three separate pieces of legislation under

Title 10 because our responsibility for reprisal investigations considers the overall encompassing Whistleblower Protection Act of

Title 5 that would cover most of the employees. The only carve-out

of that is the intelligence people that we have in our Defense intelligence agencies.

I personally think at the end of the day we can investigate those

under the auspices of the Inspector General Act——

Mr. SHAYS. I know you can do them, but I want to know why we

would want to do it differently. What is the argument?

Mr. GIMBLE. Well, the argument would be the actual investigation is not different. When we do an investigation under—either

way, we would do the same process.

Mr. SHAYS. OK.

Mr. GIMBLE. It is just the authorities. We would rely on the authorities of the IG Act if we were looking at—if someone were to

question us, which would be highly unlikely, but we would rely on

the authorities of the IG Act. We think we have statutory authority

to do that, and then the process of the actual investigations, it is

417

just a normal process that we would go through, our investigative

procedures.

Mr. SHAYS. Mr. Fine, why would we want to treat an FBI agent

who speaks out differently than an employee of the Commerce Department?

Mr. FINE. Well, let me say, I am not here on behalf of the Department. The Department would be the best one to answer that

question. I think that they would argue that there is sensitive classified information involved with that, and allowing that to go outside the agency to a quasi-judicial body like the MSPB might create

problems. They might also argue that they want to have the expertise internally to the Department to investigate these matters and

to know where the FBI procedures are and what the problems are

and have an internal OIG investigator investigate that matter.

But it is not my position here to be advocating that. We are here

to aggressively investigate under the scheme that Congress and the

administration works out, and that is what we try to do.

Mr. SHAYS. Basically you are saying to me that you would do

whatever you are asked to do based on the law, and I appreciate

that. But you deal with this issue as it relates to security issues

and I would think you would have insights as to why we would

have to handle it differently.

Mr. FINE. I think the first reason would be the issue about sensitive and classified information going outside the Department. I

think a second issue would be whether an alternative structure

would be any better. Would it be better to have OSC, for example,

investigate all these matters? I am not sure it necessarily would or

that record would be significantly different.

Mr. SHAYS. But maybe what we could have is we could have

those who are in classified positions collectively—FBI, DIA, whatever, the military, NSA—all come under the same uniform standard, but it would separate from Commerce, that you would handle,

for instance, Mr. McVay, you would handle someone from Commerce, correct?

Mr. MCVAY. Yes, sir.

Mr. SHAYS. And model it—I mean, if we have a good model, or

if we can make it better——

What troubles me is I feel like it is Enron investigating Enron.

So, help me out on that one.

Mr. FINE. I don’t think it is Enron investigating Enron. The OIG,

the Inspector General is independent. And if you look at any of our

reports, we are not hesitant to criticize the FBI, and have often

done that. The Sibel Edmonds case, the foreign language translation program, the report on the handling of September 11th intelligence—report after report, we are not hesitant to criticize the

FBI. We don’t consider ourselves a part of the FBI. We are independent of the FBI. And I think that is the critical issue. We view

ourselves as aggressive and tough, but fair, and that is what we

try to apply both to our audits, our investigations, and our——

Mr. SHAYS. See, I would tend to say that you are a bit removed.

It is Justice over the FBI; it is not FBI over Justice. But that is

not the way it is in some other agencies and departments.

Mr. FINE. Well, I can’t speak for other agencies but I can speak

for us, and we consider ourselves separate, independent, and out

418

to provide an objective and fair investigation, not to carry anybody’s water.

Mr. SHAYS. Mr. Friedman.

Mr. FRIEDMAN. Well, I am inclined to answer your question, Mr.

Shays, in the sense that the outcome is what is really important.

And I don’t think there should be any difference in getting to the

outcome regardless of whether the person is an intelligence community whistleblower, a national security community whistleblower, or a person who is not in any of those fields. There are

ministerial issues associated with classification and all the rest

that have to be addressed, and I am not sure that, you know, at

this hour, under these circumstances, I can give you a precisely

how those ought to be resolved. But I think they should be treated

essentially the same.

Mr. SHAYS. In the case of Mr. Levernier, I have particular sensitivity to this issue because what he saw, obviously, as an employee, I saw and my subcommittee staff saw in our investigation

and our actual site visits. I think he was dead right. But he has

suffered tremendously.

So tell me how the system works for him.

Mr. FRIEDMAN. Well, I would say from his perspective, certainly,

the system has not worked. But let me tell you what—because he

did not bring that particular allegation to us, and therefore we

don’t know how it might have turned out. I am not saying it would

have been positive, but I certainly don’t know that it would have

been negative.

But what I would say is this. His testimony is replete with references to our reports, which have supported the contentions that

he made in making his charges. He refers as well to a 1999 report

by the President’s Foreign Intelligence Advisory Board, which I

think was chaired at the time by Senator Rudman, which was very

critical of security in the Department of Energy, and our reports

are referenced aggressively in that report as well. And finally, in

the last 3 or 4 years, in the same vein that Mr. Levernier brought

to your attention, we have issued over 50 security reports entirely

consistent with the views that you have sensed when you have

been out making site visits or had hearings on these issues.

Mr. SHAYS. I guess I would like all of you—and then I will go

to Mr. Kucinich—I had a family member who we cheered on when

he refused to shave off his nice white beard when his boss said you

need to shave it. And we thought it was terrific he stood up to his

boss. He was in his mid-50’s. He retired at 62. And we learned

later he never got a raise from that point on. And so his loved ones

had basically encouraged him to do something that caused him tremendous harm over something that may have been, in the end,

somewhat superficial.

I guess what I am wondering is, based on your comments, if you,

Mr. Friedman, have supported his basic intentions and he still

ended up the way he ended up, does that just say that it is impossible to protect a whistleblower? Because even if you deal with everything you can for them, they are not going to get the promotions

they want and——

419

Mr. FRIEDMAN. Mr. Chairman, I would not conclude that it is impossible to protect whistleblowers. I would conclude that the

system——

Mr. SHAYS. It is difficult.

Mr. FRIEDMAN [continuing]. Is extremely difficult. Yes.

Mr. SHAYS. Even if you carry out the law and seek to protect

them as much as you can, in the end it is very possible they won’t

get that promotion even—whatever.

Mr. FRIEDMAN. Yes. But can I go back to the five suggestions I

left you with earlier, if I can?

Mr. SHAYS. Sure.

Mr. FRIEDMAN. I identified ‘‘tone’’ at the top as being of critical

importance, and I still believe that to be the case. There has to be

an atmosphere that permeates throughout the entire organization

that whistleblowers are to be respected and treated with dignity

and listened to and their complaints adjudicated within the agency.

That is a critically important first step. If there is no communication, if the person is ignored, if the person is shunted off to a corner and given no responsibility—it is very difficult from that point

forward to remedy the situation. There is a total breakdown, from

my experience.

Mr. SHAYS. Just this last point, involving Specialist Provance. I

guess I am particularly touched by him because Abu Ghraib was

a disaster that we will feel for decades. And maybe he should have

been speaking out sooner. But I just don’t know how DOD can feel

comfortable when they hear about that case. So I don’t know how

an Inspector General can feel comfortable about it. Can you give

me some reaction, Mr. Gimble, when you heard his case?

Mr. GIMBLE. Let me offer this. Ms. Deese has worked—we are

aware of the case, to some extent, and maybe she can put a fuller

picture as to what actually happened.

Mr. SHAYS. Sure.

Ms. DEESE. Thank you. I agree, it is disturbing, but Specialist

Provance did not file a whistleblower reprisal complaint with our

office. About a year and a half ago, at least a year and a half ago,

his attorney did call. In fact, I spoke with his attorney, provided

him information on the Military Whistleblower Protection Act, and,

you know, talked with him quite a bit about it, if something did

happen to the sergeant, then, you know, this is what he could do.

But he did not file a complaint.

Mr. SHAYS. Was there an explanation why—and I should have—

he was a sergeant no longer—is there an explanation as to why

they didn’t file?

Ms. DEESE. No, sir. Not——

Mr. SHAYS. And is there a deadline? So having not filed, then he

is no longer able to——

Ms. DEESE. The guideline is 180 days, but within my office, and

we handle hundreds and hundreds of reprisal complaints from military members, we go at least 6 months. And depending on the circumstances, you know, we will extend it.

Mr. SHAYS. But that would be part of his record forever, correct?

I mean, even if he maintains his status as a sergeant, they can ask

him to do whatever they want, and there is really no way to be

able to deal with that issue. Correct? In other words, what happens

420

to him in the future? In other words, he just may, like my family

member, be working for the next 7 years and never get a pay raise.

In this case, he would get a pay raise as cost-of-living, but you get

my gist.

So my question is, as you look at this, it would still be part of

his record? It doesn’t disappear from his record. If you were able

to have protected his status as a sergeant, would there have been

any protections for him in the future, or would there be something

on his record that said he had to be reinstated or maintained because of what you all did for him—if you were able to maintain his

position as a sergeant?

Do you understand my question?

Ms. DEESE. I think I do. If you file a reprisal complaint, then,

you know, we have a very extensive system that we review all of

the evidence. And if you are saying do we cutoff the complaints at

any time after the unfavorable action was——

Mr. SHAYS. Have you ever done studies that checked to see what

happened to someone that you protected, 5 or 10 years later? In

other words——

Ms. DEESE. We do go by the law. You know, under 10 U.S.C.

1034, Congress said within 180 days or we have to tell the complainant why we haven’t finished the case. But we do extend it.

Mr. SHAYS. I understand. No, I am asking this question. I think,

Mr. Gimble, you know what I am asking.

Mr. GIMBLE. I think, to answer your question, if we had received

the reprisal complaint and investigated it and in fact established

that there had been reprisal, we would have recommended action

such as maintaining rank and expunging the record to make the

person whole again. What we are saying is that the complaint

never came to us to investigate.

Mr. SHAYS. No, I understand that part. No, I am beyond that. I

understand that. But there is no guarantee that he would not be

leveled off and branded and—we can’t really say to some woman,

a whistleblower, you step forward, we’re going to protect you, because we may be able to prevent through this process—you could

maybe restore his rank, but there is nothing to guarantee that he

has a bright future in the military after that. Is that correct?

Mr. GIMBLE. I think that is correct with anything. I think the

only response I would have to that is if we were able to expunge

this from the record at that point in time, you would think he

would have a level playing ground to go forward. Nobody can guarantee that, but that is what——

Mr. SHAYS. OK, Mr. Kucinich.

Thank you, all.

Mr. KUCINICH. Thank you very much, Mr. Chairman.

Mr. Fine, in our first panel questioning, one of the witnesses, Mr.

Tice, indicated that subsequent to his discussions with the New

York Times, that he was contacted by people from the FBI. As the

Inspector General having jurisdiction over Justice, how do you determine whether or not other agencies are using the FBI in an aggressive effort to try to silence or intimidate whistleblowers?

Mr. FINE. That is an important question, a good question. We

have to be presented with that and presented with an allegation

that this was an improper effort on behalf of the agency as well as

421

the FBI as well as the Department of Justice to go outside the law

and do something that was improper in reprisal for whistleblower

activities.

Mr. KUCINICH. You are familiar with the New York Times story?

Mr. FINE. I am.

Mr. KUCINICH. Which described for the Nation for the first time

a domestic wiretapping going on without using FISA—in effect,

warrantless wiretaps. The Justice Department, supposedly, according to published reports—is investigating to determine who gave

the New York Times the information. The person or persons who

gave the New York Times that information, by definition, are whistleblowers. Are they not?

Mr. FINE. Well, they by definition may be whistleblowers, but the

issue is whether they made a protected disclosure within the agency or whether they went outside the agency and provided classified

information in violation of some law.

Mr. KUCINICH. Who makes that determination?

Mr. FINE. I think the Department of Justice attorneys probably

would, the prosecutors who are overseeing this case.

Mr. KUCINICH. And who makes the determination of the status

of whether some person is a whistleblower or a law-breaker? I

mean, isn’t one person—you know, doesn’t it become a political

issue, then?

Mr. FINE. I think it is an issue of looking at what the statute

provides and whether they made a protected disclosure to—in our

case, it would be whether they made a protected disclosure to

someone who was listed in the law as able to receive that protected

disclosure; or whether they went outside that and went to the press

and violated a law in so doing.

Mr. KUCINICH. Have you looked at it to the extent—have you

looked at this case at all?

Mr. FINE. No, I haven’t.

Mr. KUCINICH. OK. Mr. Gimble, we have heard witnesses in

panel one discuss the so-called conflict of interest, with one agency

investigating and prosecuting the retaliations by that agency

against whistleblowers who are employees of the same agency. In

other words, the agency accused of retaliating against a whistleblower is not only the defendant, but also the judge and the jury.

Is there an inherent conflict of interest in that?

Mr. GIMBLE. Sir, let me just answer the question this way. Typically, within the Department of Defense, if we get an allegation, we

send it back to the lowest place. We have the oversight responsibility of overseeing that particular investigation, whether we do it or

whether the, in this case, the NSA IG did it.

I think one of the things that we need to just maybe lay out here

that wasn’t really clear is in fact there were two investigations.

The NSA IG performed their investigation and we went back and

did a second investigation. So it was not that it went back just to

them. It did go back, they did do the initial investigation; we did

a subsequent investigation and came to our conclusions, I believe

we sent the report up to this committee, I believe.

Mr. KUCINICH. Did you compare notes with the NSA while you

were doing your investigation?

422

Mr. GIMBLE. We went in and looked to see what they did and

what we thought needed to be additional work.

Mr. KUCINICH. Now, before coming here today, were you familiar

with the case of the whistleblower, Sergeant Provance?

Mr. GIMBLE. Not really. I have never been involved. We did some

research on it when we saw he was on the witness——

Mr. KUCINICH. You read the paper, though, right?

Mr. GIMBLE. Yes, sir.

Mr. KUCINICH. And there were numerous stories about Sergeant

Provance blowing the whistle on the coverup of the Abu Ghraib

scandal. I would like to enter some of those in the record, if I could.

Mr. SHAYS. Without objection.

[The information referred to follows:]

423

424

425

426

427

428

429

430

431

432

433

Mr. KUCINICH. Thank you, Mr. Chairman.

As we learned from Sergeant Provance’s testimony in panel one

and numerous articles in the press, he was responsible for blowing

the whistle on how military intelligence officers at Abu Ghraib directed military police to commit tortuous abuses as normal procedure for interrogating witnesses. After he revealed this to the

press, he was demoted from sergeant to specialist and has gotten

his security clearance revoked. Are you familiar with that?

Mr. GIMBLE. I am familiar with it, yes, sir.

Mr. KUCINICH. Has your office been involved in looking at the retaliations against Sergeant Provance?

Mr. GIMBLE. As Ms. Deese just reported, the attorney contacted

us about a year and a half ago. There has never been a formal complaint filed with our office. It stayed within the Department of the

Army, and I believe they still have an active review ongoing.

Mr. KUCINICH. So in other words, unless you get a formal request

from somebody, you don’t really look at it even if it is all over the

pages of the newspaper?

Mr. GIMBLE. We normally get formal requests or have some additional information, our hotline gets contacted and——

Mr. KUCINICH. Do you ever initiate investigations on your own?

Mr. GIMBLE. Sure. We didn’t in this case, though. Because we

thought it was being investigated. But we have not——

Mr. KUCINICH. Well, could you give this subcommittee a more defined answer? We just heard an extensive discussion here, all kinds

of things in the record. I mean, I read the background report that

Specialist Provance entered as part of this record. Have you read

that background report?

Mr. GIMBLE. Yes, sir.

Mr. KUCINICH. OK, now, if you have read that background report

that is now part of an official hearing in the Congress of the United

States, isn’t that sufficient information for you, of your own initiative, to basically take the next step and ask for an inquiry?

Mr. GIMBLE. We can start an inquiry, absolutely. And we will

take that back and have a look at it. We will look at the fact and

see if it warrants additional investigation. I can’t sit and tell you

exactly what has been investigated, because they approached us a

year and a half ago and didn’t come back to us, and it seemed that

they were working their own issue.

Mr. KUCINICH. I yield to the chair for——

Mr. SHAYS. I would just be curious to know what the law would

enable you to do. If he didn’t follow the proper procedure, then

would you have to find against him, if he didn’t follow the procedure that the law requires?

Mr. GIMBLE. What we would look at is we could look at the allegation. If we thought there was merit in the allegation, we of our

own volition can start an investigation. We have the authority to

look at any programs within the Department of Defense across the

Defense intelligence agencies, the——

Mr. SHAYS. No. This is the question I am asking. The question

I am asking is, you can initiate an investigation——

Mr. GIMBLE. Correct.

434

Mr. SHAYS. But are you restricted by the law to conclude that if

he didn’t follow the process as prescribed by law, that it was a fair

demotion?

Mr. GIMBLE. We can initiate an investigation into any action that

we determine is appropriate for us to do.

Mr. SHAYS. That part I am clear on.

Mr. GIMBLE. OK. There is no restriction that says we can’t do

that.

Mr. SHAYS. No, but that is not the question I am asking. Once

you have initiated it and you have begun the investigation, there

are rules which you then have to follow. There are rules which he

has to follow. If he did not abide by those rules, even if in some

ways he was justified, would you be able to find in favor of him

or would the military simply say he went to the press, he didn’t

go to us, he got demoted because he went to the press and didn’t

come to us?

Mr. GIMBLE. We would look at the facts of the case and will not

be constrained by any rules other than to come out with the logical

conclusion based on the facts of our inquiry or investigation or

audit.

Mr. SHAYS. OK.

Mr. GIMBLE. We do this routinely. We get 18,000 contacts on our

hotline a year, which result in some 2,400 referrals.

Mr. SHAYS. Mr. Gimble, we are like two ships passing in the

night. Because what I am asking is not whether you can investigate. I am clear you can investigate. And I——

Mr. GIMBLE. And I can come to the conclusion that we recommend the corrective actions that are deemed necessary based on

our findings. And the fact he did not register as a whistleblower,

we may not treat him as a whistleblower. We treat that as an allegation of reprisal.

Mr. SHAYS. But what happens if the decision was made that he

simply went to the press instead of following what the law requires, that he go up the chain of command and, because he didn’t

go by the chain of command, in my own mind the military would

come back and say he didn’t follow the chain of command.

Mr. GIMBLE. I understood him to say he went with the chain of

command, is what—he was protected—he went up the chain of

command, he just didn’t come all the way up to us and file a formal

complaint with us.

Mr. SHAYS. Right.

I thank the gentleman for yielding.

Thank you.

Mr. KUCINICH. So I just want to go back to something, a propos

of the chairman talking about ships passing in the night, is we

make sure we make a connection. We have heard the testimony of

Specialist Provance. He has taken an oath in front of a congressional committee. He has submitted documents under oath to this

committee. Is that enough for you, of your own initiative, to open

up an inquiry into this case?

Mr. GIMBLE. It absolutely is. We will go back and look at the

facts as we see them and probably open up a——

Mr. KUCINICH. Thank you.

Now, I want to go back to the question——

435

Mr. SHAYS. Just one more time, do you mind if I——

Mr. KUCINICH. Oh, Mr. Chairman, it——

Mr. SHAYS. I want to be clear on this. Aren’t you restrained in

the relief you can provide, or do you have total capability to provide

any relief you want, the military be damned?

Mr. GIMBLE. What we would do is we would come up with a factfinding and make a recommendation. We have a procedure. If the

military disagrees with us, we elevate that up, and in fact it can

be elevated all the way to the Secretary of Defense for the final mediation of it.

Mr. SHAYS. So you do not have the ability to determine that his

rank be restored. You only have the ability to recommend.

Mr. GIMBLE. We have the ability to determine if he has been

reprised against and recommend he be restored.

Mr. SHAYS. But still it ultimately is the decision of the Secretary?

Mr. GIMBLE. It would be an Army decision.

Mr. SHAYS. It would not be your decision?

Mr. GIMBLE. It would not be my—no.

Mr. SHAYS. Under any circumstance, you could not restore——

Mr. GIMBLE. Right.

Mr. SHAYS. You can only recommend?

Mr. GIMBLE. We can only recommend.

Mr. SHAYS. Do you mind just one more second?

Is that how it works with you, Mr. McVay?

Mr. MCVAY. Sir, we would have to seek action with the Merit

Systems Protection Board to get that kind of relief. Most of our

cases, however, if we find there has been a prohibited personnel

practice or reprisal for whistleblowing, the agency, after we send

a letter to the head of the agency, settles the case. But if in fact

there is no agreement, we have to file with the Merit Systems Protection Board to——

Mr. SHAYS. And the Board makes a ruling?

Mr. MCVAY. Yes, sir.

Mr. SHAYS. But then their ruling stands?

Mr. MCVAY. That is correct, other than there is an appellate procedure.

Mr. SHAYS. Right. But there is no appellate procedure in the case

of Justice or in the case—there is, Mr. Fine?

Mr. FINE. Yes. We would make a finding. If we found that there

was retaliation, the agency could put the person back in the position they should have been or, if they contested it, go to the Office

of Attorney in Recruitment and Management, where there is an appellate process, where they make a decision. And even that could

be appealed to the Deputy Attorney General. That is within the

agency, though.

Mr. SHAYS. Right. But in the end, is the Justice Department required to do what your findings are?

Mr. MCVAY. No. They are not.

Mr. SHAYS. They are not required.

Mr. MCVAY. We recommend. That is right, they are not——

Mr. SHAYS. And in the case of the Secretary of Defense, he is not

required, and there is no meritorious board to make a final decision?

Mr. MCVAY. Correct. Outside the agency. That is correct.

436

Mr. SHAYS. With all respect to the sergeant—good luck. With all

due respect.

Sorry. Thank you.

Mr. KUCINICH. Well, actually, Mr. Chairman, with all due respect

to the Chair and this subcommittee and this whole process that we

have spent the afternoon on, what are we here for? We are here

to make sure that whatever the law permits, if there is relief to be

provided to a whistleblower who has been unfairly retaliated

against, that we start the process. So what I am humbly suggesting

here—and Mr. Gimble has been kind enough to respond—that you

start the process. And I believe that Secretary Rumsfeld, for example, if it was laid out for him that there was a case where a serviceman or servicewoman of the United States of America spoke their

conscience and was unfairly retaliated against, I mean, I wouldn’t

see why the Secretary of Defense or any Cabinet person in the administration would——

Mr. SHAYS. That is the nicest thing that someone has said about

Mr. Rumsfeld in this subcommittee in a long time. [Laughter.]

Mr. KUCINICH. Well, I mean, we don’t always have to presume

the worst about people. [Laughter.]

Mr. MEYER. Mr. Chairman, could I volunteer a comment about

what we are making observations on?

Mr. SHAYS. Yes, Mr. Meyer.

Mr. MEYER. I am Dan Meyer. I am Director of the Civilian Reprisal Investigations at the Pentagon. I think it is important to

bear in mind, though, that the reason why the process is complaint-driven is that sometimes whistleblowers don’t want us to be

the first entity that looks at a case. So for a civilian that comes to

me, they may ultimately want to go to the Office of Special Counsel, which has primary jurisdiction. Or they may also have in their

fact pattern maybe some discrimination issues that they want to

file in the D.C. District Court. So if we adopt a uniform policy of

going out and grabbing cases, we could end up actually doing

things other than what the whistleblower wants to do.

Mr. KUCINICH. You know, Mr. Meyer, that is a good case. By the

way, did you listen to Specialist Provance’s testimony?

Mr. MEYER. Yes, I did, sir.

Mr. KUCINICH. Did you read the addendum to his testimony that

he provided this subcommittee and swore to under oath?

Mr. MEYER. No, I did not get to read the addendum.

Mr. KUCINICH. OK. Based on what you heard, is it your belief

that Specialist Provance would somehow be opposed to Mr. Gimble

proceeding to look at the allegations of retaliation for whistleblowing? Is this such a case as you are speaking of?

Mr. MEYER. Sir, I would still be more comfortable if the whistleblower took the proactive action of asking for the complaint to be

filed. I will give you an example with Bunnatine Greenhouse.

When I saw——

Mr. KUCINICH. No, you can give me your case, but we have a

case that has been in front of us here all afternoon. So you still

have some resistance to this. That is interesting. It is very instructive.

437

Go back to Mr. Gimble—thank you. I have some more questions

here, if I may. Thank you. You know, I know where you are coming

from, very clearly.

Now, I heard Mr. Tice say something earlier and I want to make

sure that I understand totally what the response to his assertion

is. With respect to the leak to the New York Times, was that investigation conducted by the NSA—one by the NSA and one by the

DOD, or were both IG investigations conducted by the NSA?

Mr. GIMBLE. I think there are two things. The leak investigation

is being investigated by the FBI, as I understand it.

Mr. KUCINICH. Right. Excuse me. Right.

Mr. GIMBLE. The other part of this is the retaliation——

Mr. KUCINICH. That is what I meant, thank you. Retaliation.

Mr. GIMBLE. We were saying there are two investigations. Initially NSA IG investigated that. We kept an oversight case open on

it. We were not completely happy with what the NSA IG did, so

we went back and did some additional work and we concluded that.

That report has been furnished.

But one point I would like to make that he brought up that I

think is germane here is that when he said he wanted to execute

the intelligence community Whistleblower Protection Act, he came

to our office and testified that we were not cleared to receive that.

I actually think that is incorrect. We are cleared to have that. We

could receive that information, and he chose not to provide it, probably because he was uncomfortable with knowing that we were in

fact cleared to that level. So I just wanted to clarify that.

Mr. KUCINICH. OK. Are you familiar, Mr. Gimble, with the case

of Michael Nowacki?

Mr. GIMBLE. No, sir, I am not.

Mr. KUCINICH. Let me illuminate you as to it. According to the

Sante Fe Reporter, Michael Nowacki was a National Guardsman

who spent his tour in Iraq as a military intelligence officer interrogating more than 700 detainees. More often than not, he felt that

seemingly innocent Iraqi civilians, such as, for example, a retarded

man who was accused of high-level intelligence activities, were not

released despite his recommendation they be released. He said that

up to 90 percent of the people brought to his brigade internment

facility near Baghdad were innocent and the over-zealous arrests

were based on unspoken Army quotas.

After returning from his tour in Iraq, he wrote to his superiors

expressing concern. In response, he was put under investigation

and given little information about the investigation. As a result,

even though his contact with the Army ended on November 1,

2005, he was not released until just last month, January 11th. His

security clearance has been suspended, which has precluded him

from getting several jobs for which he is qualified. The Army has

held his reenlistment bonus because he has a ‘‘negative personnel

flag’’ in his file. He was questioned and harassed, accused of stealing military equipment.

You haven’t heard anything about it?

Is there anybody here that knows anything about it?

Mr. DEESE. I am not familiar with that, but we could certainly

check.

438

Mr. KUCINICH. I am going to make sure my staff forwards all

that information to you and you can check it out. As you pointed

out, Mr. Gimble, you don’t have to wait to be contacted by a whistleblower—I mean, if a Member of Congress brought something to

your attention.

Mr. GIMBLE. Absolutely.

Mr. KUCINICH. Would that be of interest?

Mr. GIMBLE. Yes, sir.

Mr. KUCINICH. Well, that is good.

Well, I think that is fine. Thanks, Mr. Chairman. Thank you.

Mr. SHAYS. Just one last question to you, Mr. Fine. Both counsel

and I were puzzled by your comment about the case with Mr. German in regard to the fact that you basically found his complaint

meritorious except as it related to terrorism. I don’t know why you

threw that in. What is the significance of that?

Mr. FINE. The significance of that was that was one of his main

concerns, that the FBI had missed a viable terrorism case. And he

raised that repeated with us and he raised that in his comments

with us, and I think that was a significant concern that he had.

And therefore we looked at it and that was a significant part of our

investigation, so I wanted to let the committee know that.

Mr. SHAYS. Let me just let counsel——

Mr. HALLORAN. What impact does that have on the significance

of other findings that you made in terms of—you are not saying it

justifies illegally recording or trying to make that recording go

away?

Mr. FINE. Absolutely not. Absolutely not. I was trying to give you

the scope of what our investigation was.

Mr. SHAYS. Thank you. That is helpful.

Is there any comment that any of you would like to make before

we adjourn this panel?

[No response.]

Mr. SHAYS. The next time we ask if you can go third—going to

argue profusely that not happen. But I think it was important to

have it happen this way. We would have had you testify in theory

and then we would have had others testify after. So I think, in the

end—and I will also point out that you didn’t have to answer questions from a lot of Members by coming third. [Laughter.]

So thank you all very much. This hearing is adjourned.

[Whereupon, at 5:54 p.m., the subcommittee was adjourned.]

Æ