[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]



 
 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


                                ------                                

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                     COMMITTEE ON GOVERNMENT REFORM

                     TOM DAVIS, Virginia, Chairman
CHRISTOPHER SHAYS, Connecticut       HENRY A. WAXMAN, California
DAN BURTON, Indiana                  TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida         MAJOR R. OWENS, New York
JOHN M. McHUGH, New York             EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida                PAUL E. KANJORSKI, Pennsylvania
GIL GUTKNECHT, Minnesota             CAROLYN B. MALONEY, New York
MARK E. SOUDER, Indiana              ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio           DENNIS J. KUCINICH, Ohio
TODD RUSSELL PLATTS, Pennsylvania    DANNY K. DAVIS, Illinois
CHRIS CANNON, Utah                   WM. LACY CLAY, Missouri
JOHN J. DUNCAN, Jr., Tennessee       DIANE E. WATSON, California
CANDICE S. MILLER, Michigan          STEPHEN F. LYNCH, Massachusetts
MICHAEL R. TURNER, Ohio              CHRIS VAN HOLLEN, Maryland
DARRELL E. ISSA, California          LINDA T. SANCHEZ, California
JON C. PORTER, Nevada                C.A. DUTCH RUPPERSBERGER, Maryland
KENNY MARCHANT, Texas                BRIAN HIGGINS, New York
LYNN A. WESTMORELAND, Georgia        ELEANOR HOLMES NORTON, District of 
PATRICK T. McHENRY, North Carolina       Columbia
CHARLES W. DENT, Pennsylvania                    ------
VIRGINIA FOXX, North Carolina        BERNARD SANDERS, Vermont 
JEAN SCHMIDT, Ohio                       (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                DENNIS J. KUCINICH, Ohio
DAN BURTON, Indiana                  TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida         BERNARD SANDERS, Vermont
JOHN M. McHUGH, New York             CAROLYN B. MALONEY, New York
STEVEN C. LaTOURETTE, Ohio           CHRIS VAN HOLLEN, Maryland
TODD RUSSELL PLATTS, Pennsylvania    LINDA T. SANCHEZ, California
JOHN J. DUNCAN, Jr., Tennessee       C.A. DUTCH RUPPERSBERGER, Maryland
MICHAEL R. TURNER, Ohio              STEPHEN F. LYNCH, Massachusetts
JON C. PORTER, Nevada                BRIAN HIGGINS, New York
CHARLES W. DENT, Pennsylvania

                               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


                            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
    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


 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.
    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:]

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    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.
    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:]

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    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, essentially 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:]

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    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.
    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
``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:]

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    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:]

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    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 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:]

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    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 
6\1/2\, 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 uniform 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:]

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    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 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 easily 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:]

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    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 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.
    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:]

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    [The response referred to follows:]
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    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 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 e-mail 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 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:]

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    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 world-class 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 so-called 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 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:]

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    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.
    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?
    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.
    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.
    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.
    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.
    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 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?
    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 
late-night 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?
    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 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.
    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 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.
    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 6\1/2\ 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 6\1/2\ 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.
    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 court-approved 
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?
    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 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 particularly 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 2\1/2\ 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.
    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. 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 Regulations. 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.
    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 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.
    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.
    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. 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.
    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.
    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 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 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.
    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.
    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 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.
    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.
    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 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.
    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:]

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    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 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.
    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:]

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    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 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 good-government 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 3\1/2\ 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.
    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 third-
party-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 2\1/2\ 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:]

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    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, 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:]

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    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 common-sensical 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 Article 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 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?
    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 regulations. 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 exposed 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 non-disclosure 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, 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.
    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.
    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 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 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:]

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    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 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 non-appropriated 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:]

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    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 access 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:]

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    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:]

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    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 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 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----
    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 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 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?
    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.
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    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.
    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----
    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 
fact-finding 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.
    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.
    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.
    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.]

                                 
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