The Myth of “Internal Channels” for National Security Whistleblowers

By Jesselyn Radack and Kathleen McClellan

In the chaotic last days of the war in Afghanistan, U.S. officials told the press that the U.S. had executed a deadly drone strike that destroyed a vehicle containing “multiple suicide bombers.” Thanks to investigative journalists who dug deeper into the government’s vague and clinical “reports of civilian casualties,” we now know the strike killed at least 10 civilians, eight of them children. Journalists were not always so quick to question the U.S. drone program. Thanks to whistleblowers like Daniel Hale, who disclosed that civilian casualties were grossly underreported, the government’s word on “civilian casualties” is no longer the last word the public hears.

Hale’s reward for his contribution to the public discourse was a years-long Espionage Act investigation that landed him in prison. When Hale was sentenced to 45 months in prison this summer, the U.S. District Court judge said that Hale could have been a whistleblower without taking documents to the press. National security whistleblowers who go public often face the criticism that they should have gone through “internal channels.” When sentencing Federal Bureau of Investigation (FBI) whistleblower Terry Albury to 48 months in prison, the judge chastised Albury’s decision to make his disclosures public, telling Albury that he “had other options.” In theory, internal channels work. But, in reality, internal channels for national security whistleblowers are notoriously bad at protecting whistleblowers from retaliation and toothless at putting a stop to the reported misconduct. Worse, these “whistleblower protection” channels have a dark history of being turned against the very whistleblowers they are supposed to protect.

Robin Marcato, a whistleblower from US Agency for International Development’s Office of Inspector General went through internal channels, was fired, spent thousands on years of litigation at the administrative level, and ultimately lost her retaliation case four years later. But even the rare win in court is a Pyrrhic victory. FBI whistleblower John Parkinson went through internal channels, was fired, spent substantial sums on years of litigation at the administrative level, and ultimately won his removal case in court. However, after his 7-year-long battle, the FBI revoked Parkinson’s security clearance, leaving him little choice but to retire. Air Marshall Robert MacLean made a legal whistleblowing disclosure, litigated his retaliation case for almost nine years all the way to the Supreme Court, and won his case. Then the Transportation Security Agency fired MacLean again, and, as of 2019, he was unemployed. Marcato, Parkinson, and MacLean are experiences of the rare national security whistleblowers who can actually litigate their cases in court.

Most national security whistleblowers are exempted from federal whistleblower protection laws and cannot litigate outside of the Executive Branch, such as National Security Agency whistleblower Thomas Drake. Drake used the Department of Defense Inspector General to make his disclosures, and Drake was targeted in a leak investigation and prosecuted under the Espionage Act. After the government’s criminal case against Drake collapsed, he filed a retaliation complaint through internal channels. Ironically, Drake had to file the complaint with the Department of Defense Inspector General, the same office that initially referred him for criminal prosecution. The retaliation complaint ended with no remedy for Drake, who lost his income and retirement savings.

There are rare success stories of national security whistleblowers who have good outcomes using internal channels. But most whistleblowers are not sophisticated senior-level officials, do not make disclosures that also serve to advance the interest of powerful allies, and do not retain an attorney prior to their disclosures. Why would a civil servant think to retain an attorney to tell their supervisor about obvious misconduct? For example, in Parkinson’s case, he (understandably) did not retain an attorney to let his superior know that FBI pilots were joyriding government aircraft to solicit prostitutes. The few outlying success stories do not compare to the hundreds of whistleblowers who quietly leave public service after suffering retaliation, who settle their cases before public and costly litigation, or who litigate and lose at administrative levels before their cases become public. Even 17 years of experience protecting whistleblowers could not protect Dan Meyer, the former head of the Intelligence Community’s whistleblowing program. When Meyer became a whistleblower, he was, predictably, “sidelined and eventually fired.” The problem is not that the internal reporting systems for national security whistleblowers never work. It is that the channels do not work often enough, well enough, or robustly enough to create a culture of protecting whistleblowers rather than protecting wrongdoers.

Internal channels for national security whistleblowers are inherently flawed because the channels are, ultimately, under the umbrella of the same agency or branch of government as the subjects of whistleblowers’ complaints. For national security whistleblowers, offices tasked with protecting whistleblowers have perversely been used against whistleblowers. In the cases of Marcato, Parkinson, and Drake, it was an Office of Inspector General that spent countless taxpayer dollars investigating not the problem, but the conscientious employee who raised the problem. Marcato and Meyer suffered retaliation while working for offices literally established protect whistleblowers.

Whistleblowing channels in non-national security industries do not suffer the same defects, even though most federal whistleblowers still lack access to jury trials. In the banking industry, multiple laws provide whistleblowers with financial incentives, and in private federal contracting, the False Claims Act provides protection from retaliation and significant money damages for whistleblowers. National security whistleblowers who use internal channels are left to report their wrongdoing to the fox guarding the hen house, and then hunker down and hope they are not attacked. Then, there is no meaningful remedy when national security whistleblowers do suffer retaliation.

Perhaps it is ill-advised to describe so many whistleblowers’ defeats as it is sure to discourage future whistleblowers, who the public desperately needs if we are to know of government wrongdoing. But the message is not that employees need to stay quiet if they see wrongdoing. It is that federal whistleblower protection laws are not working effectively for national security whistleblowers who go through internal channels.

Jesselyn Radack is the Director of the Whistleblower & Source Protection Program (WHISPeR) at ExposeFacts, a program dedicated to protecting national security whistleblowers and media sources. Kathleen McClellan is the Deputy Director of WHISPeR. Radack and McClellan represent Daniel Hale, Robin Marcato, John Parkinson, Thomas Drake, and dozens of other national security whistleblowers.