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Congressman Shays, members of the Subcommittee,
I am writing to you today on behalf of Concerned Foreign Service Officers, a group of Foreign Service employees of the U.S. Department of State. We thank you for this opportunity to testify about an issue that is vitally important to the security of our nation and to the correct functioning of the agencies charged with protecting the American people and conducting our foreign relations. These processes rely on information and our ability to process and understand that information. In order for them to work properly, there must be room for dissent, for an opposing interpretation, and occasionally, for the process to act quickly on a lone cry of alarm when a discovery has been made that affects us all. When the process works as it should, those who offer an honest assessment, a dissenting viewpoint, or an urgent warning, are called "good employees." When the process fails, these people are called "whistle blowers."
National Security Whistle Blowers are true American heroes and patriots, who place loyalty to the American people, and to our constitution, ahead of loyalty to a single agency, bureaucracy, employer or political party. Their efforts have exposed vulnerabilities to terrorism, sabotage, espionage and crime, as well as threats to the constitutional freedoms and civil rights which define the very core of our nation. Sometimes, these voices are listened to. Threats are avoided. Problems are corrected. Lives are saved. At other times, they are not. Bureaucratic inertia, political expediency, the short term requirements of a few, or even the personal career aspirations of a single well-placed individual may be given priority over national security and government efficiency. There are cases in which it is considered easier for a bureaucracy to silence a single voice than it is to address and correct systemic problems, and in these cases, whistle blowers speak out to their personal detriment, as the bureaucracies affected by their allegations seek to discredit, humiliate, isolate and punish them.
One of the primary instruments used to silence, punish and discredit whistle blowers has been the abuse of opaque and compartmentalized security clearance programs, such as that of the U.S. Department of State. Decisions under these programs have the same effect as personnel actions, yet they are not regulated by the rules prohibiting certain personnel practices. Without adequate oversight and legislated restrictions, these programs are easily abused to sidestep fair labor practices, civil rights laws, and other restrictions, including those of the Whistleblower Protection Act of 1989, designed to ensure objective and efficient functioning of government. Because this largely non-accountable process decides who can work in an agency and who cannot, who can access information and who cannot, no other process in government operations offers such far-reaching opportunity for hidden abuse. The opacity and autonomy of the security clearance process easily enables the efficiency of our government agencies and the safety of our nation to be subordinated to the desires, careers and political aspirations of a few key employees, or, in some cases, to the ignorance, bias, or even simple incompetence, of a single unfortunately-placed adjudicator. Concerned Foreign Service Officers remains extremely concerned that such poorly managed and barely overseen security clearance programs are being used to silence not only whistle blowers, but also dissenters and others whose alternate viewpoints are vital to a balanced understanding of the threats and conditions affecting our nation. There is a strong link between the enactment and enforcement of strong protections for security whistle blowers, the proper functioning of our national security and foreign affairs agencies, and the enforcement of fair and proper functioning of the security clearance process.
Mr Chairman and members of the subcommittee:
In our testimony today, Concerned Foreign Service Officers will present the cases of three whistle blowers at the U.S. Department of State. We will discuss the ways in which a poorly supervised security clearance system has been abused to punish them, and misapplied to over forty recent cases at the Department of State. And we will discuss how this affects the American people, in terms of national security, government credibility, and waste of financial and other resources. Our topic is the protection of national security whistle blowers, and others testifying in this hearing will provide considerable detail concerning individual whistle blower cases. Concerned Foreign Service Officers will not dwell on the details of individual cases, and in any event, security restrictions would prevent us from providing certain details within this forum. Rather, our testimony, based on our experience with a large number of cases, will call your attention to some of the most common mechanisms used to silence, punish and discredit whistle blowers. Using examples from the U.S. Department of State, we will discuss in detail the ways in which the security clearance process can be abused to inhibit dissent and to force good employees to choose between whistle blowing and silence. Our examples are from the State Department, but similar techniques appear to have been used in many of the cases you will hear about today.
The first case we would like to mention concerns a consular officer at a large American Embassy in a strategic Middle-Eastern country, which, due to the closure at that time of our embassy in Baghdad, was the designated post to process Iraqi visa applicants. At the time his case began, the officer was the American Consul, heading the Embassy consular section, responsible for the full range of American Citizen’s Services, refugee matters, immigrant and non-immigrant visa services. He supervised three junior officers who adjudicated some three hundred American visa applications per day, including a large number of Iraqi applicants. The State Department had issued post-9/11 guidance on dealing with Iraqi visa applicants, but the guidance was not being followed by all officers. The officer in question was a man of some 20 years of consular experience. The junior officers he supervised were all new to the service. Rather than risk errors and lapses, therefore, this senior level consular officer instructed his junior level subordinates to direct Iraqi visa applicants only to him or to the NIV section chief. To most people, referring the toughest cases to the officers with the most experience would make simple common sense. The system worked well until another employee in the section fell under suspicion of visa fraud. Investigators in that case questioned the why the senior-most officer was personally addressing so many Iraqi cases. The officer defended his practice, considering that the national security concerns of these cases merited such special handling. The correct thing would have been for the Ambassador to support his Consul. The easy thing would have been to relieve him of his duties. Ease, in this case, won over common sense. The consular officer was recalled from post and his security clearance temporarily suspended. In order to justify the suspension, the Department of State’s Bureau of Diplomatic Security (DS) accused him of visa fraud, unauthorized travel to a critical threat country and, ironically, endangering national security by manipulating the visa applications of Iraqi visa applicants. There followed a two-and-a-half year investigation, during which DS could not confirm any of their own allegations. An audit of his finances found no suspect transactions or unexplained income sources. Review of every case involving Iraqi visa applicants during his posting showed that applicants had properly applied at the embassy and that required name checks were properly performed before visas were issued. The Consular section also received praise from USG agencies concerning the quality of reporting on Iraqi applicants. Unable to confirm any of their original charges, DS expanded its investigation to include a completely unrelated isolated domestic matter, that was reported by the employee more than a decade ago, and a hearsay allegation concerning a job applicant, that could not, even at that time, be confirmed. Most recently, DS proposed a security clearance suspension based primarily on the fact that DS agents with no consular experience of their own, simply disagreed with the manner in which the officer adjudicated cases.
The second case concerns a DS Special Agent serving at an overseas critical threat post. The agent was accused of having an improper relationship with a local national and disregarding a "directive" to cease all contact with the local national. The agent countered that the relationship was platonic and proper. Other DS personnel serving at the post and in Washington had been informed about the relationship. The agent had even informed his wife about it. Furthermore, the agent had filed contact reports required by Department regulations. The matter was investigated and the investigation failed to establish evidence of any improper relationship nor substantiate any counterintelligence concerns. In the process, however, the agent (under investigation) identified several systemic improprieties in the DS investigative process. He reported these improprieties to DS management and, when his statements were ignored, he made them public. In retaliation, DS, having already suspended his security clearance, now moved to revoke it based on the assertion that he had violated a verbal order to cease and desist all contact with the local national. DS, however, was unable to produce any evidence of a verbal directive. The agent, in fact, has offered to sign a formal written cease and desist order. DS has ignored this offer. In the meantime, the agent's security clearance has remained suspended for almost three years. In his case, no additional charges were created. His case has simply been repeatedly prolonged by transferring it between investigating agents. He has been questioned nine times by DS in virtually identical interviews, and the local national involved, who remains an employee in good standing of an American consulate, has been harassed by DS agents during interview sessions to the point where she filed a sexual harassment complaint with the Department alleging that she has repeatedly been subjected to vulgar and improper questions and comments. The officer, a highly-trained special agent with considerable overseas experience, is currently assigned to oversee the DS parking and cell phone programs in Washington DC.
The third case we raise involves a high level officer at a Central Asian post. In 1998 the officer had been involved in efforts to address long-standing problems in the State Department’s Office of the Inspector General (OIG) and, in July, 1998, published an article on that subject in a professional publication. Importantly, those actions led to improvement in the State Department OIG, but they also left the employee marked as a whistle blower. In February 2003, the officer’s wife asked a regional State Department psychiatrist for assistance in obtaining marital counseling. The employee was called back to Washington for interviews, at the end of which, his security clearance was suspended for "continued improper behavior" – an obvious reference to his earlier activities. He was briefly investigated concerning false allegations of spouse abuse. When these quickly proved groundless, DS began what has now become a three-year fishing expedition looking for any evidence whatsoever of malfeasance. To date, DS has not formally accused him of anything, and the search presumably continues. In the meantime, the employee has had no security clearance for three years and performs clerical and advisory duties at a level far below those a person of his rank and experience would normally perform.
These acts of retaliation have had clear and direct results, for the employees, for the agency, and for the American people. In all three cases we have mentioned, the employees and their families were suddenly recalled from overseas assignments, at a cost of tens of thousands of dollars each to the agency, and many thousands to the employee. One employee was literally forced to sell his family home as a direct result of the costs of his sudden and unanticipated transfer. All of the employees involved have been forced to incur legal costs, their careers have been irreparably damaged, and their lives have been forever changed. That is the minimum cost to the individual of doing the right thing, and that is the message that these DS actions convey to others who might consider speaking out to correct problems in the agency. In terms of national security, the sudden withdrawal of these three from their assignments meant that, in the one case, a visa section with a high potential for abuse by terrorists was left, for a while, in the hands of inexperienced first tour officers. In another, as a direct result of the employee’s withdrawal, acquisition of a setback property to protect an American embassy from car-bomb attacks was delayed by over six months. A known vulnerability to terrorist attack was allowed to continue vulnerable. And in all of these cases, experienced officers serving at vital missions were sidelined, at a time when the Agency was already desperate to staff posts in these very strategic regions.
These actions have financial costs to the agency as well, many of which are hidden from the taxpayer. The cost of transferring an employee and his or her family back to the US from overseas can be easily calculated, but the millions of dollars spent annually on the salaries of dozens of sidelined State Department employees is hidden. The average case takes two and a half years to resolve, and many cases at the State Department have been pending for three years or more. Why do these cases take so long? Ironically, one reason may directly involve the taxpayer’s money. There is reason to believe that one reason these cases remain unresolved is that they are deliberately extended, since keeping them open facilitates larger budget and resource requests by the Bureau of Diplomatic Security (DS). Cases that are resolved against the employee or those that remain open are used to justify the need for greater resources. Cases that are resolved in favor of the employee are not. Obviously, a case that remains open for three years can be used as a statistic in three successive budget requests, whereas if the case were resolved in favor of the employee, it’s statistical value would be "lost." The taxpayer pays the price, an employee’s career is kept in limbo, and the Bureau of Diplomatic Security is rewarded for keeping cases open indefinitely. This is something that Congress may wish to investigate in another forum.
Returning to the process itself, the security clearance process is an administrative process rather than a judicial one. Judicial investigations are restricted by law in terms of what investigators can and cannot do. Administrative investigations are far less regulated. On the other hand, whereas compliance with judicial investigations is voluntary, compliance with an administrative investigation is mandatory. A whistle blower is forced to comply with the process and can be fired for cause should he or she fail to comply. In security clearance investigations, the Department of State Bureau of Diplomatic Security (DS) routinely abuses the differences in these two types of investigations, switching back and forth between administrative and judicial inquiries, in order to allow DS investigators to perform acts which no police officer or FBI agent in the United States would be allowed to perform. Concerned Foreign Service Officers has identified numerous fraudulent statements in DS Reports of Investigation, including several cases where alleged derogatory testimony was simply cut and pasted between alleged witness statements, so that several witnesses are alleged to have made identical derogatory statements, right down to the typographical errors in the transliterations of those statements. We have noted coercive interview techniques, including intimidation, false statements by investigators during interviews, spurious threats to deport naturalized spouses, failure to record positive information or exculpatory statements during interviews or in Reports of Investigations, and written distortion of regulations in Reports of Investigation and other communications. In many cases, exculpatory evidence presented to investigators in the presence of attorneys has not been recorded in reports of investigation. In at least one case, numerous references to a piece of evidence appearing in investigative documents were expunged from a final document, once it was demonstrated that those references were exculpatory. DS agents have also opened and searched sealed containers of personal effects and confiscated items of personal property without a warrant to do so. None of these acts would be allowed in a judicial investigation, and a case referred for criminal prosecution based on such "investigative" acts would be thrown out of any court in America. If whistle blowers were drug dealers, pimps, mass murderers or child molesters, they would enjoy protection from this type of "investigative" abuse. Because they are loyal government employees, hoping to remain in the employ of the agencies they serve, they must endure it. We strongly feel that any whistle blower protection act must force the government to accord the same civil rights to employees under investigation as the government accords to criminals. Standards of investigative conduct must be published and adhered to, and failure to comply with federal investigative standards should be punished.
Moreover, the security clearance process as practiced at the U.S. Department of State is an allegation-based process rather than an evidentiary process. Virtually the entire investigative process consists of interviewing selected individuals. In most cases, little or no effort is expended to verify empirically the allegations or opinions expressed by the interviewed persons and clearance decisions are frequently based entirely on unsubstantiated allegations. While Federal standards of evidence exist, no standards of evidence are currently applied to DS suspension or revocation decisions. Concerned Foreign Service Officers has identified a number of cases where decisions or assertions were based on statements which could be immediately disproved by public records or by information readily available to the general public from other agencies or through public institutional data sources. In one case, for example, an employee's divorce (a matter of public record) was simply ignored in DS assertions that the employee's "extramarital" affairs made him vulnerable to blackmail. In another ongoing case, DS has ignored published and easily verifiable matters of public law to speculate on an employee's citizenship. In another, DS questioned whether an employee had obtained a university degree, a matter verifiable in minutes through the web site of the university in question. At the best of times, the process is capricious, subjective and subject to error. At worst, when there is a deliberate intent to abuse the system, the lack of evidentiary standards makes it difficult to identify cases of abuse, since many other cases are equally badly documented. We strongly feel that any bill to protect whistle blowers must take this into account. In order to prevent abuse of the clearance process to silence or discredit whistle blowers, a security whistle blower protection bill must require the government to adhere to standards of evidence before suspending or revoking a whistle blower's clearance.
Mr. Chairman:
In the course of our State Department careers, members of Concerned Foreign Service Officers have been shot at. We have had knives drawn on us. We have had guns drawn on us. One member of our group survived the bombing of the American Embassy in Nairobi. Another was shown a detailed drawing of the apartment in which he lived with his wife and children, provided by an Usama Bin Laden operative who confirmed that, before his arrest, he had been casing that Foreign Service Officer’s apartment for possible attack by the Bin Laden organization. Many members of our group have volunteered for hazardous duties, willingly placing themselves in harm’s way in the service of our country. Many of us have been personally responsible for the safety and security of the embassies to which we were assigned. Foreign Service Officers have been aware of the terrorist threat for many years, because far more frequently than most Americans, we are the specific targets of such attacks. We understand the need for security, and we understand the need for secrecy as a component of that security. We ask that you keep that point in mind as we continue, however, to note that the abuse of secrecy is another tool frequently misused to punish and silence those who place loyalty to America ahead of loyalty to an organization. All of us are familiar with recent cases where the U.S. Government has refused to allow whistle blowers’ cases to proceed through the courts, basing that refusal on the need to protect government secrets. The claim that legitimate secrets would be compromised in court cases may be true, or it may not be. Concerned Foreign Service Officers is not in a position to judge that, and neither is the American public. Unfortunately, no reliable independent body exists to answer that question.
We do know, however, that in addition to the possible abuse of secrecy in court cases, secrecy is certainly a key element in facilitating the misuse of the security clearance process to punish or inhibit whistle blowers. One of the key elements of the system as practiced at the Department of State is compartmentalization. This is a basic principle of security, which limits the sharing of information to those who have a need to know it. It is a standard practice, but one that is easily abused, because the originator of the information decides who has the need to know it. There is no guarantee that the originator of the information knows who might need it, nor is there any procedure to ensure that everyone who needs the information has access to it. Even in the best scenarios, therefore, there is the potential that information that should legitimately be shared is not shared with everyone who needs it. For example, we suspect that abuse of compartmentalization is a factor in the repeated failure of State Department clearance adjudicators to meet the mandatory requirement for "whole person" analysis in adjudication. Federal standards require an adjudicator to consider the "whole person" in a clearance decision, to consider his or her background, experience, work and other history, and all positive information available in addition to all negative information. In the case where an agency wants to abuse the process to punish an employee, it is easy to abuse compartmentalization to ensure that some of this information never gets considered.
Additionally, by its very nature, compartmentalization impedes oversight, makes the process less than transparent, and promotes lack of accountability. Although State Department regulations mandate that others outside DS play a role in clearance appeals and suitability decisions, none of these players is allowed to see the whole case, as DS claims they have no need to know all they need to know to make their decisions. In this scenario, secrecy is abused within the Department of State itself, to enable DS to hide information from other elements within the Department of State, to control the appeal and suitability processes, and to eliminate accountability for abuse of the security clearance process. This is one reason why we strongly feel that a whistle blower protection bill should require Federal agencies to subject security clearance suspension or revocation decisions to a properly cleared impartial body for outside review and appeal.
Concerned Foreign Service Officers has noticed a pattern of withholding of key information from the employee whose clearance is under review. Federal standards require that the employee must be notified of the reason or reasons for an unfavorable clearance decision, given an opportunity to respond, and notified of any rights to appeal before the case is adjudicated. In 1992, GAO report number GAO/NSIAD-92-99 (B-247246) commended the State Department for the degree to which it provided accused employees with access to the investigative findings regarding their clearances. Within the past four years, however, the State Department has suddenly become more secretive, and has lurched to the opposite extreme. In many recent cases large portions of the investigative files are now routinely classified, and partly hidden from the employee as a result. We believe that these classifications are often improperly performed to protect DS interests rather than national security information. In a number of cases, we have also seen DS withhold some portion of the file in order to be able to present a completely new allegation only in the final phase of appeal of a clearance revocation case, without giving the employee any reasonable opportunity to respond to it. The allegation will have originated during the original investigation, but will have been withheld from the employee as a hidden "trump card" until the end of the process. It will suddenly surface, for the first time, in the "Executive Summary" and other documentation provided to the Security Advisory Panel, the final board of appeal for a security revocation recommendation, or even during the appeal hearing itself. This improper practice continues despite several critical challenges by the Foreign Service Grievance Board and other outside arbitrators.
This is all the more disturbing because, in the State Department, the revocation and appeal bodies are part of the same administrative hierarchy. In 1992, GAO report number GAO/NSIAD-92-99 (B-247246) observed that the State Department’s Security Advisory Panel did not "give a clear perception of being administratively independent because the panel is composed of officials or employees within, or in close relationship administratively to, the offices that recommended revocation of clearances." Two of the three panel members work directly for and are evaluated by the third. The GAO recommended that the Department of State should add an intermediate body of non-agency examiners to ensure the independence of the State Department’s appeal panel. We could not agree more. In the fourteen years since that recommendation was written, the composition and apparent lack of independence of the SAP has repeatedly been criticized, by the Foreign Service Grievance Board, by the American Foreign Service Association, and by others. We strongly feel that the use of an independent body to review security clearance revocations of alleged whistle blowers should be an essential component of any whistle blower protection act.
Secrecy and lack of accountability can lead to abuse. So can inattention to procedures. According to State Department OIG report number ISP-I-05-45 of December 2004, "significant deficiencies in investigative quality remain to be addressed" in DS security clearance cases. "Only 31 percent of reviewed files met all [general federal] investigative standards appropriate to the class of investigation," and "the final decision to grant a clearance was not reviewed by a supervisor in 43 percent of cases." That is not only a factor which enables the system to be easily abused to silence whistle blowers, it is also in and of itself a threat to national security, as, with 69 percent of files incomplete, and 43 percent of adjudications un-reviewed, truly bad cases can easily go unnoticed.
Before concluding, we would like to mention one additional matter. Until this point, we have spoken only about the process as it involves the Bureau of Diplomatic Security, but we should note that other offices in the State Department have also been involved in activities which can easily be abused to punish whistle blowers. A number of other witnesses in this hearing will describe situations in which whistle blowers at NSA and elsewhere are falsely accused of mental illness or other medical conditions which are not substantiated by any objective medical evaluation. This has been well covered in the media, as well. There are numerous cases in the Department of State in which DS referrals under E.O. 10450 to the Department of State’s Medical Office, M/MED, have resulted in derogatory medical reports based solely on information provided by DS. M/MED doctors have diagnosed mental illness, substance abuse and other alleged problems without any doctor ever having met the employee concerned or even reviewing a medical file. In most of these cases, M/MED "acknowledges" suitability concerns based solely on DS reports or statements. This has the effect of apparently providing a second, theoretically independent, opinion which acts as an additional obstacle to the employee’s continued employment, without any medical tests or objective analysis having been performed. Noting that the United States government and the United Nations have repeatedly condemned such actions, when performed by other governments, as violations of basic human rights and even as a form of torture, Concerned Foreign Service Officers suggests that any whistle blower protection bill should address this issue as well. Medical findings related to suitability for employment or for a security clearance should be based solely on objective medical examinations. We have also noted apparent violations of the HIPAA act, involving improper sharing of medically privileged information as well as the creation of files, containing medically privileged information, which are not easily retrievable for release under the HIPAA and Privacy Acts.
Mr. Chairman and members of the subcommittee,
The Whistleblower Protection Act of 1989 sought to strengthen and improve protection for the rights of Federal employees, to prevent reprisals, and to help eliminate wrongdoing within the Government, by mandating that employees who expose wrongdoing should not suffer adverse consequences as a result of prohibited personnel practices. Concerned Foreign Service Officers asks you to carry that protection further. We ask you to recognize that, in attacking security whistle blowers, Federal agencies are sidestepping their personnel systems altogether, and abusing a system unique to the Government, which is far less regulated, far more damaging, and often completely hidden from sight. We urge you to recognize and correct the ways in which security clearance procedures are currently being abused to bypass EEO regulations, Civil Rights laws, due process and the Whistleblower Protection Act, and to mandate protections which would protect Federal employees from these abuses as well.
We thank you again for the opportunity, and the privilege, to bring these matters to your attention.
For Concerned Foreign Service Officers,
(signed)
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