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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
Threats to Whom? The Insider Threat Program’s Chilling Effect on Whistleblowers
In early 2010, the website WikiLeaks published a diplomatic cable from the US embassy in Reykjavik, the first of a massive amount of disclosures detailing the diplomatic activities of the United States, as well as military activities in Iraq and Afghanistan. This information was provided to them by a private within the US Military, Chelsea Manning, then known as Bradley. Chelsea Manning was later court martialed and thrown in prison under the Espionage Act as a result of these disclosures. This would be the first of many whistleblowers recently charged under the Espionage Act, in a clear attempt to silence them and prevent further disclosures. The sheer amount of information released and the fact that much of it was classified sent the Intelligence Community scrambling to prevent more classified information from being released. In 2011, President Obama issued Executive Order 13587, which called for the implementation of an Insider Threat Program, and deepened the chilling effect towards whistleblowers that we see today.
The provisions of this order are broad in nature, as they call for the creation of a steering committee to establish a government-wide framework for the way classified information is shared and secured. They also appoint the Secretary of Defense and the Director of the National Security Agency as the Executive Agent for Safeguarding Classified Information on Computer Networks. The executive agent is tasked with developing the policies that would be implemented by the steering committee. In addition, the order created an Insider Threat Task Force, chaired by the Attorney General and the Director of National Intelligence, whose members include the Department of Defense, National Security, the Central Intelligence Agency and others. This group is tasked with working with the executive agent to create a policy for “deterrence, detection and mitigation of insider threats.”
At face value, this order seems rather benign, but in the lack of definition of what exactly an insider threat is and the effective carte blanche given to prevent these threats, we can see the recipe for abuse of these powers in the form of whistleblower retaliation. The only real limit on this program’s power is a provision that states that these entities shall not seek to deter legal disclosures protected by the Whistleblower Protection Act of 1989 (WPA) and the Intelligence WPA of 1998. Through the following articles in this series, I will demonstrate how this provision has been largely undermined. Indeed, it has been deleted from subsequent guidance to agencies on implementation of the program. In practice the Insider Threat Program has targeted whistleblowers since its inception, and it has created a chilling effect for potential whistleblowers.
In the training materials, whistleblowers are openly posted as targets of this program, with attempts both to demonize them alongside those who sold defense secrets to America’s enemies, and to create an atmosphere of suspicion among employees. Whistleblowers are placed on equal footing with terrorists and spies in the eyes of this program, and employees are encouraged to watch for and report any individual that they think may pose a threat. All too often threats to our nation and threats to government bureaucracies are viewed as synonymous, even when government betrays the public trust. This program has only been expanded in the years after its creation, with a constant monitoring system currently in development while attempts at greater oversight are evaded or refused outright. In an attempt to shine light on the threat that whistleblowers face due to the open-ended nature of the Insider Threat program, a coalition of organizations that promote openness and accountability within the government have published a letter detailing their concerns with how it has been implemented.
In 2015, the House passed H.R. 3361, a bill that creates an Insider Threat Program within the Department of Homeland Security. Unlike Executive Order 13587, however, it lacks even a paper whistleblower protection provision. The bill’s lead sponsor, Representative Peter King (R-NY), compared whistleblowers such as Edward Snowden and Chelsea Manning to the Washington Navy Yard shooter, Aaron Alexis.
Passage of these types of measures would open the door for agencies to target whistleblowers as insider threats and prevent their disclosures even more aggressively than the Intelligence Community. This bill is currently in the Senate Committee on Homeland Security and Governmental Affairs. The introduction of anti-whistleblower legislation and the recent insider threat training materials provide a grim reminder that the Intelligence Community and often other government agencies are relentlessly determined to squash any dissent that threatens the government, regardless of the public interest or consequences.
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.