Sunlight and Secrecy: Whistleblowing, Corruption, and the NSA

While press coverage of the US National Security Agency (NSA) has been dominated by revelations, and concerns, regarding the scope of the NSA’s surveillance programs, recently this organization has been in the news for an altogether different reason. A number of recent articles have highlighted the remarkably porous nature of the relationship between the NSA and the private sector as well as potentially improper conduct on the part of a number of NSA officials. In October alone, several stories emerged regarding the fact that: (1) the husband of a high-ranking NSA official was registered as the resident agent of a private signals intelligence consulting firm located at the pair’s residence while the official herself served as the resident agent for an office and electronics business, also headquartered at her home; (2) the NSA’s Chief Technical Officer had been permitted to work for up to 20 hours a week for a private cybersecurity firm while still holding his post; and (3) the former head of the NSA had founded a private consulting company shortly after his retirement in spite of the fact that many commentators have questioned the degree to which he will be able to set aside confidential information he learned during the course of his time as the head of this organization.

To be clear, while a few commentators have thrown around the term “corruption” when discussing the apparent impropriety of some of these arrangements, there have been no allegations that the officials involved broke any laws or otherwise acted in a manner that can be deemed “corrupt” in any formal sense. Nonetheless, this cluster of incidents provides an opportunity to pause and reflect upon the inherent difficulties of identifying and addressing instances of corruption within the context of an organization which is extremely insular and unavoidably secretive. More specifically, the crucial part that whistleblowers and the media have played in bringing these incidents to light raises the question of what role, if any, we believe that greater transparency may play in exposing instances of corruption within the NSA. Sunlight may be the best disinfectant, as Justice Brandeis famously noted, but can or should it play a role when the organization in question is, by necessity, shrouded in secrecy?

On its face at least, several features of the NSA may make it particularly difficult to detect instances of corruption. The NSA depends heavily upon private contractors, is not (according to a whistleblower) traditionally subject to auditing, and, unlike other governmental agencies, has traditionally withheld its employees’ public financial disclosure forms (a particularly salient fact for several of the recently reported stories, as more ready access to this information would have made it much simpler for the press to identify these issues). This confluence of factors, when paired with a series of reports which suggest, if not impropriety, then at the very least poor judgment by NSA personnel when it comes to engaging in activities that allow them to benefit from their roles as public officials, strongly suggests that we should consider additional anticorruption measures for the NSA.

What might such measures look like? Reform of the NSA’s internal oversight mechanisms might seem like the most obvious and feasible means of addressing concerns about corruption and conflict-of-interest, but there are reasons for skepticism about the NSA’s ability to police itself. After all, at least some of the incidents which have garnered public attention recently (including, for example, the Chief Technical Officer’s arrangement to work part-time for a private company) were apparently sanctioned by the NSA. This critique may be unfair, after all we are not privy to instances in which the NSA has successfully addressed corrupt or improper actions by its employees. Nonetheless, at least from this outsider’s perspective, more can and should be done to bolster the NSA’s capacity to tackle potential instances of corruption, and it does not appear that additional oversight or controls will be sufficient to address this problem.

Another standard mechanism for addressing concerns about corruption and conflict of interest — greater transparency — is also less applicable to the NSA, which by necessity must be more secretive than other agencies. That said, many have suggested that the agency has at times embraced secrecy for secrecy’s sake, and there might be some limited forms of transparency that the NSA could adopt without compromising its mission. For example, one relatively straightforward reform that would help uncover (and deter) the type of behavior which generated recent outcry would be for the NSA to make its employees’ public financial disclosure forms more widely available. Nonetheless, it seems unlikely that significant strides could be made with respect to increasing the transparency of this organization generally.

In light of these difficulties, it may be worth reconsidering the government’s hardline stance on whistleblowers. Even compared to other agencies, the NSA (and other intelligence agencies) have been particularly resistant to encouraging whistleblowing and inclined to come down harshly on those who go public with their concerns. Indeed, a whistleblower who informed a reporter that the NSA was “wasting billions of dollars” on an ineffective surveillance program in 2006 (after raising the issue with everyone from his supervisors to the Congressional intelligence committees and seeing no response) was charged with various crimes that could have resulted in more than 35 years in prison. While strides have been made in providing additional protections to whistleblowers in the intelligence community, most notably through a 2012 Presidential Policy Directive (PPD-19) and, more recently, the Intelligence Authorization Act for Fiscal Year 2014, neither of these measures “establishes the independent and external oversight that is widely acknowledged to be critical to successful outcomes for whistleblowers.”

Two obvious means of bolstering the NSA’s ability to identify and respond to instances of corruption would be (1) to provide additional incentives for whistleblowers to report these issues through appropriate channels, perhaps through the adoption of similar financial incentives to those that have proven to be so successful in the context of the Dodd-Frank Act, (at least one commentator has proposed a similar model, based loosely upon the False Claims Act) and (2) to strengthen the protections that whistleblowers within the intelligence community are eligible to receive. While both the recent Presidential Policy Directive and Intelligence Authorization Act do provide some additional safeguards for whistleblowers, they have nonetheless been condemned for not having gone far enough, with several commentators noting that they are likely to provide “more process than justice.” More specifically, the Intelligence Authorization Act has been criticized for failing to provide whistleblowers a truly independent forum to bring claims of retaliation and excluding a crucial demographic, intelligence contractors, from those protections it does offer. Addressing either (or both) of these issues might help to encourage more whistleblowers to come forward, thereby bolstering officials’ awareness of, and ability to respond to, instances of corruption.

A third, perhaps more radical, proposal would be to implement a system whereby whistleblower reports are reviewable (after having gone through the appropriate, preexisting channels) by another agency or organization within the federal government that is not affiliated with the intelligence community (the U.S. Office of Special Counsel is the most likely candidate for this position).  While Daniel D’Isidoro, in an excellent article on this subject, has suggested a similar idea, the creation of an Office of Special Counsel for the Intelligence Community (which would largely serve as an advocate for whistleblowers as they navigated the process of filing a report), as a means of providing greater protection for whistleblowers and more independent evaluation of whistleblower reports, this may not go far enough. There are obviously good policy reasons why the review of whistleblower reports has traditionally been cabined to members of the intelligence community who, presumably, have both the security clearance and familiarity with the NSA’s programs and activities necessary to evaluate these reports. Nonetheless, it may be time to reevaluate this approach. Other organizations may have greater experience with investigating and handling reports of corruption that could be brought to bear effectively in these cases. Similarly, it is possible that such a system would serve to address potential concerns that a set of norms regarding appropriate conduct (such as those displayed in many of the issues recently reported on) which may not be shared with the rest of the federal government or the public does not shape the way in which whistleblower reports are handled within the unique context of the intelligence community.

The problem of how to strengthen the NSA’s anticorruption mechanisms is uniquely complicated. Nonetheless, it appears likely that the most productive way to bolster this organization’s ability to address potential instances of corruption will be to consider ways in which the NSA can increase transparency (without diminishing its ability to achieve its mission) and to explore additional mechanisms by which whistleblowers can play an effective role in bringing these issues to light.

 

One thought on “Sunlight and Secrecy: Whistleblowing, Corruption, and the NSA

  1. Thanks, Lauren. You describe a genuinely challenging problem and I particularly like your idea of an independent, external review mechanism. I don’t know much at all about it but I assume the Congressional oversight process is too limited in its purview? It might be difficult to say, even for someone much more informed than I am. Likely, at the end of the day, we’ll have to take someone’s word on whether things are running smoothly at the NSA.

    A lot of the real information the general public gets comes from leaks and, although I very much support increasing protection for whistleblowers, my sense is that whistleblowing is the least ideal option for everyone involved (except those of us who want to know what’s going on). Focusing on the whistleblowers is an attractive option when we can’t have much insight into other avenues for reform. But, ideally, potential informants could be made to feel comfortable reporting misconduct internally. It might be counterproductive to make whisteblowing the path of least resistance. You express skepticism – which I share – that internal improvements will suffice but I wonder what they might look like. Are there analogous organizations like (I hate to say it) the military that could offer guidance?

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