20 June 2013
[The following was submitted to me via email and I thought it worth publishing (with his permission of course). WB]
Why would Director of National Intelligence General James Clapper feel he could get away with misleading Congress? Pretend a program he knew exists, does not exist? Giving false or misleading information in federal jurisdiction is a felony under federal law 18 USC § 1001 (banning committing both false and misleading [statements]). Why would Clapper think that NOBODY among the thousands of employees who know the truth, would step forward and blow the whistle? Out him? Why would he think the Constitution’s Bill of Rights including freedom of press and speech could NOT be invoked? Nor the duty under 18 USC § 3 to report illegal activity of which one is aware? Why would Clapper have such smug absolute confidence he would get away with what he did?
The Booz-Allen (like all “intelligence” companies) “code of ethics” (so-called) in essence forbids its employees from adherence to the Constitution nor exercising First Amendment rights, forbids adherence to The Nuremberg doctrine against blindly following orders, forbids obeying 18 USC § 3 on reporting crime of which one is aware, and thus forbids whistleblowing on illegal activity including false or misleading activity committed by higher-ups to mislead Congress and the American people. Penalty is immediate discharge without due process. They figured that that type “code of ethics” would deter ALL employees from engaging in ANY ethical behavior in this regard.
The government had and has basis and reason to believe that it has long since fired and deterred ALL government employees with integrity and personal honesty, anyone who might blow the whistle on the false or misleading testimony to Congress.
Documentation of employer and government policy and practice to eliminate all whistleblowers, anyone with integrity along that line, goes back decades. Examples of such documentation include:
David W. Ewing, “Canning Directions: How the Government Rids Itself of Troublemakers,” Harpers 16, 18, 22 (August 1979)
Thomas M. Devine and Donald G. Aplin, “Whistleblower Protection—Gap Between Law and Reality,” 31 Howard Law Journal (#2) 223 (1988) (P. 226 notes longstanding well-rehearsed government policy and practice is to “go well beyond merely defeating a whistle blower . . . prove to others that no one is safe . . . make the most outrageous charges possible. . . . for purposes of teaching others a lesson, the more obvious the inconsistency [with work record (and law)] the better . . . .”)
Martin H. Malin, “Protecting the Whistleblower from Retaliatory Discharge,” 16 (#2) University of Michigan Journal of Law Reform 277 (February 1983)
Stephen M. Kohn and Michael D. Kohn, “An Overview of Federal and State Whistleblower Protection,” 4 Antioch Law Journal 99-152 (Summer 1986)
Thomas M. Devine & Donald G. Aplin, “Abuse of Authority: The Office of the Special Counsel and Whistleblower Protection,” 4 Antioch Law Journal 5-71 (Summer 1986)
Cynthia L. Estlund, “Free Speech and Due Process in the Workplace,” 71 (#1) Ind. L. J. 101 (Winter 1995)
Thomas M. Devine, “The Whistleblower Protection Act of 1989: Foundation for the Modern Law of Employment Dissent,” 51 Administrative Law Review (#2) 531-577 (Spring 1999)
“Whistleblowers are never vindicated,” says Andrew M. Greeley, The Priestly Sins (New York, T. Doherty Associates, 2004), Chap. 1, p 23
Catherine Rampell, “Whistle-blowers tell of cost of conscience” (USA Today, 24 Nov 2006): “Devine says the U.S. Court of Appeals for the Federal Circuit has ruled against whistle-blowers in 125 of 127 of the reprisal cases seen by the court since 1994. ‘They’ve gutted the law,’ Devine says, ‘and it’s degenerated into a rubber stamp for retaliation.'”
Daniel Schulman, “Office of Special Counsel’s War On Whistleblowers” (24 April 2007): “It’s come to the point where some advocates now counsel federal employees against coming forward, period. “When people call me and ask about blowing the whistle, I always tell them, ‘Don’t do it, because your life will be destroyed,'” says William Weaver, a professor of political science at the University of Texas-El Paso and a senior adviser to the National Security Whistleblowers Coalition. “You’ll lose your career; you’re probably going to lose your family if you have one; you’re probably going to lose all your friends because they’re associated through work; you’ll wind up squandering your life savings on attorneys; and you’ll come out the other end of this process working at McDonald’s.”
William Fisher, “Whistleblowers Charge Retaliation; More Protections Sought” (22 May 2007) (“Career federal employees who report waste, fraud, abuse and mismanagement in government agencies are routinely subjected to career-ending retaliation, humiliation and legal costs. . . .”)
Alex B. Long, “Retaliatory Discharge and the Ethical Rules Governing Attorneys,” 79 University of Colorado Law Rev. 1043 (2008)
And, “journalists (and whistle-blowers) who tell the truth in America are more likely to be pummeled than rewarded, whereas those who lie for powerful interest groups live high on the hog. . . . In America, money, not truth, has the power. . . . Taking on these vested interests is most often a career-ending event. . . . When government and special interests finance education and research, and the media is concentrated in a few large corporations dependent on government broadcast licenses, there is not much room left for truth.”–Paul Craig Roberts, Ph.D., “Can Truth Retain Its Independence?” (ICH, 30 May 2008).
Julia Davis, “Office of Special Counsel (OSC) – The Dark Legacy” (The Examiner, 23 July 2010)
David Axe, “General: ‘My Career Was Done’ When I Criticized Flawed Warplane” (4 Oct 2012). (“Don Harvel thought he was cruising to a well-deserved retirement after 35 years flying cargo planes for the U.S. Air Force. Then in the spring of 2010 he was tapped to investigate the fatal crash of a high-tech Air Force tiltrotor aircraft – and everything changed. What Harvel discovered about the controversial hybrid aircraft drew him into a battle of wills with his superiors at Air Force Special Operations Command. Harvel, then a brigadier general, uncovered evidence of mechanical problems – and resulting safety woes – in the V-22 Osprey, which takes off like a helicopter and flies like an airplane. These are issues the Pentagon has been eager to downplay. So when Harvel refused to alter his findings to match the Defense Department’s expectations, he knew that was the final chapter of his decades-long military service… “I turned [my report] in and I knew that my career was done,” Harvel says.)
More documentation could be cited, as you undoubtedly are aware.
In this context of whistleblowers being long since fired and deterred, Clapper KNEW with ABSOLUTE CERTAINTY that NOBODY would dare out him — NOBODY. Clapper had good reason to believe “beyond a reasonable doubt” that NOBODY would dare out him. As far as known, ALL whistleblowers have long since been fired and deterred.
But, shock of shocks, there was one left among all the millions of private and government employees, ONE (Snowden) left who’d dare to do so, out him. The odds of that happening were less than getting hit by lightning. So of course, Clapper thought he could get away with it — misleading Congress and the American people, not to mention, other governments who might still have some officials with some respect for citizen privacy rights.
And following long-established and rehearsed anti-whistleblower policy and practice, is the focus on arresting Clapper for misleading? or on arresting the whistleblower for outing him, for blowing the whistle?