Do Whistleblowers Threaten Security When Telling Congress of Spies' Lies?
Showdown comes this week on a Senate proposal to shield whistleblowers
NEW YORK — A Battle is brewing between the White House and Congress that could determine how much power the nation's secret spy agencies can wield in the future and how much say the public should have in the oversight of their operations.
At the heart of the dispute is who has the right to know what the CIA and other intelligence agencies are up to, particularly when their operatives are involved in illegal activities and lie about them.
The Senate Intelligence Committee has passed a provision that would ensure that whistleblowers will be protected if they report such "wrongdoing" to Congress, even if it has to do with classified information.
The White House has threatened to veto the provision, claiming it violates the administration's constitutional right to ensure national security. This week, the House Intelligence Committee is expected to decide whether to back the White House or side with the Senate. Either way, there will be a showdown that some analysts contend could have serious constitutional ramifications.
"This could set an extremely dangerous precedent," says Morton Halperin, a senior fellow at the Council on Foreign Relations.
The controversy was sparked by Richard Nuccio, a high-level State Department employee who discovered the CIA had misled Congress about what its operatives knew about two killings in Guatemala. One victim was Michael Devine, an American citizen living in Guatemala; another was Guatemalan rebel leader Efrain Bamaca, who was married to American lawyer Jennifer Harbury.
The CIA and Guatemala
The CIA originally told Mr. Nuccio it had very little, if any, information on the killings. He relayed that to Congress.
Then, Nuccio stumbled on a highly classified document that indicated a CIA asset in Guatemala was implicated in both cases. Having unintentionally misled Congress, he found himself with a moral dilemma.
After struggling for several months, Nuccio decided to tell then-Rep. Robert Torricelli (D) of New Jersey, a member of the House Intelligence Committee, what he had discovered.
"Having been an observer of the Iran-contra hearings and a former congressional staffer, I thought that was what I was supposed to do," says Nuccio.
Security clearance denied
Mr. Torricelli, now a senator from New Jersey, took the revelations to the press. The ensuing brouhaha led to an investigation into the intelligence agency's actions, and two CIA employees were subsequently fired. Meanwhile, the State Department stripped Nuccio of his high-level security clearance, known as Sensitive Compartmented Information.
After the initial fallout from the disclosure, the State Department recommended his security clearance be reinstated so he could get about his business. But the CIA balked. Nuccio and his lawyers appealed to then-CIA director John Deutch, claiming the high-level security clearance was a vital tool in his job as a senior policy adviser at the White House. The CIA was unmoved.
"By going after Nuccio in this manner, the CIA is sending a chilling message to executive branch employees who uncover wrongdoing," says Duncan Levin, a public policy analyst at the Center for National Security Studies, a nonprofit civil liberties think tank in Washington.
"What they're saying is: 'If you engage in your constitutional duty to provide truthful information to the legislative branch, you'll be punished.' "
But the administration sees the issue differently.
Officials argue that Nuccio violated procedures by not contacting his superiors at the State Department or the CIA before disclosing the information to Torricelli.
As a result, they contend, he jeopardized national security. They say Nuccio is not really being punished, since he can reapply for his high-level security clearance in a year.
"We regard Mr. Nuccio's allegations as ridiculous, but he's free to say whatever he wants," says an administration official who wished her name not be used.
In a letter denying Nuccio's request for reinstated clearance, then-CIA director Deutch wrote that when there's "any doubt concerning personnel having access to [Sensitive Compartmented Information] it should be resolved in favor of the national security and the access should be denied or revoked."
Others familiar with the intelligence community contend the provision proposed by the Senate to protect whistleblowers like Nuccio would be "mischievous" at best.
"The problem is, what is wrongdoing? I'm sure they can't define it," says Charles Lichenstein, a distinguished fellow at the Heritage Foundation, a conservative think tank in Washington. "The difference between 'wrongdoing' and 'I disagree with the decision you made' is a very, very murky one."
Ken Degraffenreid, who teaches about national security issues at the Institute of World Politics in Washington, says the dispute reveals the tensions over national-security issues that were never fully resolved when the House and Senate select committees on Intelligence were formed in the mid-1970s to oversee the intelligence community.
"You can find in the Constitution arguments to support both sides," says Mr. Degraffenreid.
In fact, the Intelligence Act of 1980 recognizes the constitutional authority of both the legislative and executive branches. It says, in essence, the executive branch has the constitutional right to conduct intelligence activities without telling Congress, and Congress has the right to restrict the president in such activities because of its constitutional oversight responsibilities.
"They both reserve ultimate power, and recognizing the contradiction, the law simply goes on to outline how the relationship will work," says Degraffenreid.
The administration contends Nuccio violated that relationship by not following the proper procedures and consulting his superiors before going to Congress.
But Nuccio points out that it was his superiors who were withholding vital information from Congress.
The administration counters that Nuccio could have gone to the CIA's Inspector General or to others within the administration.
But Nuccio's attorneys say federal law clearly protects an executive branch employee's constitutional right to furnish information to Congress, particularly when it deals with wrongdoing on the part of the executive branch.
Nuccio is now preparing to sue the administration. He has left the State Department and joined Senator Torricelli's staff, hoping to help reform the CIA.