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BK Blog Post
Posted by Tom Devine.
Tom Devine is legal director of the Government Accountability Project, where he has worked to assist thousands of whistleblowers to come forward and has been involved in the all of the campaigns to pass or defend major whistleblower laws over the last two decades.
In the aftermath of classified disclosures to Wikileaks, the Obama administration created an Insider Threat Program tasked with identifying the “malicious insiders.” In practice, however, we have found that the Insider Threat Program is really a threat to insiders who commit the truth – whistleblowers.
According to the Office of the Director of National Intelligence, “An insider threat arises when a person with authorized access to U.S. Government resources… uses that access to harm the security of the United States. Malicious insiders can inflict incalculable damage. They enable the enemy to plant boots behind our lines and can compromise our nation's most important endeavors.”
The initial creation of the Insider Threat Program included an explicit exemption for whistleblowers covered under the Whistleblower Protection Act (WPA) and Intelligence Community WPA. However, in the years since the program’s inception, government agencies and congressional officials have used insider threats and whistleblowers as interchangeable identities, causing an irreversible chilling effect amongst public servants who are considering reporting waste, fraud, abuse and other misconduct. Further, the whistleblower exception has vanished from official training materials and guidance on how agencies should implement the Insider Threat program.
The following blog series by Matt Fuller will examine: Executive Order 13587, which established the Insider Threat Program; associated training materials and their implications; outside contracts, including Insider Threat Defense; congressional oversight of the program; a new DOD Analytic Center created to prevent insider threats; and other relevant issues.
GAP Legal Director
The Insider Threat Program’s first major task was to create a training program that established unified policies across the Intelligence Community and other agencies for protection of classified information. In these training materials, we see the first signs of its inherent dangers and potentially hidden agenda- preventing and silencing whistleblowers. The training materials are the basis for a bureaucratic culture within these agencies in which any dissent is bad, and those who speak up are threats, who wish to harm the country. The materials call on employees to watch out for threats, with very broad criteria for what exactly constitutes one. These training materials actively create a chilling effect for potential whistleblowers by making employees feel as if they are being watched at all times and encouraging other workers to report on them. The whistleblower exemption in the original Executive Order has vanished from the training materials, which include no guidance for how to raise concerns “properly” or any indication that whistleblowing is a legally protected activity.
The graphics used in the training materials and the guidelines for spotting potential threats portray whistleblowers as dangers to be silenced, not protected. The screenshot of the training above shows the very clear attempt to place whistleblowers on the same footing as traitorous criminal threats to national security. There is no distinction drawn between the motives of each case, only the clear message that any disclosure is a threat. The guidelines for spotting threats further establish that dissent is considered suspicious, and a potential danger. Shown below, one of the criteria for suspicious behavior includes “questionable national loyalty” or “making anti-US comments.” These criteria seem to be designed to establish a climate of fear and suspicion among employees of these agencies, where any dissent, legitimate or not, from the policies established could be reported under the guise of making comments against the United States, or demonstrating a lack of national loyalty.
These portions of the training materials appear indirectly to target whistleblowers, under the guise of protecting our national security. By placing the whistleblower case of Chelsea Manning next to the Fort Hood mass shooting, and characterizing dissent as suspicious behavior, these materials seek to isolate potential dissenters from other employees, a common reprisal tactic against whistleblowers. This is further established by encouraging employees to carefully watch coworkers for these signs and to report any suspicions immediately.
The chilling effect established by this training is further intensified by a slide detailing the consequences of failing to report suspicious activity. The slide shown above again places Chelsea Manning’s whistleblower case next to the Fort Hood mass shooting where lives were lost. The slide then states that failing to report a suspicious person could lead to a court martial for military employees, disciplinary action for civilians, or even criminal charges for contractors. This slide further isolates potential whistleblowers by making other employees want nothing to do with them or be forced to report them, in order to protect themselves.
The Insider Threat Program increasingly appears to be a tool to spy on and prevent whistleblowing as a matter of national security. The frequent depictions of whistleblowers next to events like the Fort Hood shooting, with no mention of the laws mandate to protect legitimate whistleblowing underscores the apparent message of this training: dissenter is synonymous with traitor and whistleblowers must be aggressively silenced or prosecuted. This is further established with the exceptionally vague guidelines for suspicious behavior, accompanied by threatening employees with at best disciplinary action, or at worst prison, for failing to report perceived threats. These training materials represent the beginning of the Insider Threat Program’s war on whistleblowers, as will be seen in the subsequent articles in this series.
While this Insider Threat Program already has been established, efforts are being made to begin a more aggressive crackdown on whistleblowers within the Department of Homeland Security. H.R. 3361, which passed in the house and is currently being considered by the Senate Committee on Homeland Security and Governmental Affairs, would establish an Insider Threat Program in the Department of Homeland Security that does not include a whistleblower protection provision. These tactics are not going unheeded, however. In January, a coalition of open government organizations published a letter to the Office of the Director of National Intelligence to call into question the complete lack of distinction between legitimate and illegitimate disclosures shown in these training materials. The letter can be viewed here.
Matt Fuller is a graduate of Siena College, with a degree in Political Science. His experience with advocacy began as a door-to-door canvasser before spending a semester in Washington, D.C. where he found his passion for protecting and advancing the rights of whistleblowers during an externship with GAP.