A Legal Defense of Russell Tice, the Whistleblower who Revealed the President's Authorization of NSA's Warrantless Domestic Wiretapping

By JESSELYN RADACK
Friday, Jan. 27, 2006

Russell Tice, one of the whistleblowers who revealed the National Security Agency's program of warrantless domestic wiretapping to the New York Times, now faces the full fury and force of the Executive Branch. His revelation - one that was intensely in the public interest, as it exposed blatant lawbreaking by the President himself - has brought FBI agents to his door.

I can certainly sympathize with Tice's situation - for I know full well the costs of speaking one's conscience. As I described in a prior column for this site, as a government ethics compliance attorney, I blew the whistle on the government's refusal to honor American citizen John Walker Lindh's constitutional rights. Specifically, I advised the Department of Justice's Criminal Division not to interrogate him without his lawyer, and when the FBI did so anyway, I advised that the interview should be sealed and used only for national security and intelligence-gathering purposes, not criminal prosecution.

In retaliation, I was fired from my subsequent private sector job at the government's behest; branded a "turncoat" in the New York Times by anonymous government officials; placed under criminal investigation; referred for possible discipline to the state bars in which I am licensed as an attorney; and put on the "no-fly" list.

I can also advise Tice, however, that his actions enjoy substantial legal protection, which he should fully invoke. In this column, I will recap the facts relating to Tice, and explain why the law protects both his disclosure of information to the Times, and his disclosure to Congress' intelligence committees. I will also argue that in light of this legal protection, any criminal investigation of Tice's whistleblowing ought to be immediately ended.

The Chronology: Why and How Tice Revealed Himself

On December 16 of last year, the New York Times revealed that the National Security Agency (NSA), at the behest of the President, had since 2002, been engaged in a clandestine domestic spying program involving the use of warrantless wiretaps.

On December 30, the Justice Department opened a criminal investigation into the disclosure of the NSA program.

Meanwhile, the Times article had prompted a man named Russell Tice to write letters to the House and Senate intelligence committees, stating that he was prepared to testify about highly classified Special Access Programs, or SAPs, that, he alleged, were improperly carried out by both the NSA and the Defense Intelligence Agency (DIA).

In a January 9 letter, an NSA director conceded that Tice had "every right to petition Congress for a redress of grievances," but insisted that "neither the staff nor the members of the HPSCI [House Permanent Select Committee on Intelligence] or SCCI [Senate Select Committee on Intelligence] are cleared to receive the information covered by the SAPs."

This assertion was quite odd in light of the White House's claim, in defense of the warrantless wiretapping, that it had given more than a dozen classified briefings on the program to the very Congressmen who led these committees.

Nevertheless, the NSA director's letter went on to warn that before Tice provided classified information to the committees, he had to "provide a statement to the DoD Inspector General or the NSA Inspector General of your complaint . . . and, further, that you obtain and follow direction from the Secretary of Defense . . . or the Director of the NSA."

In other words, the NSA insisted that Tice must clear his complaint with the very persons against whom he is making it.

On January 10, Tice - a conservative Republican who has twice voted for George W. Bush for President -- revealed himself on ABC's "Nightline" as one of the Times' sources for the NSA story. Formerly with the NSA and DIA, Tice served there as a technical intelligence specialist dealing almost exclusively with SAPs and operations.

Tice ultimately left his employment, however. After returning from a temporary overseas assignment in 2001, he observed that a DIA coworker exhibited the classic signs of involvement in espionage - and quietly made a report to that effect. Yet his suspicion was quickly dismissed by DIA's counterintelligence office. He continued to observe and report activity suggesting that there was an espionage problem.

Then Tice returned to the NSA and, busy with the Iraq war, dropped the issue. Again, he observed something that troubled him: A report that FBI agents had traded secrets to a China source in exchange for sex. Based on the report, he questioned the FBI's competence.

NSA retaliated by having Tice declared crazy, revoking his security clearance, relegating him to the motor pool, and eventually terminating his employment in May 2005.

The Law That Protects Tice's Disclosures: The ICWPA

Ironically, the Whistleblower Protection Act (WPA) does not protect this crucially important whistleblower - one of the people who revealed the President's knowing violation of the Foreign Intelligence Surveillance Act (FISA), his utter disregard of the FISA Court, and his decision to flout the Fourth Amendment rights of Americans, with no more legal support than the simple fact that Congress authorized him, after 9/11, to go after Osama bin Laden in Afghanistan.

Whistleblowing doesn't get much more important that this: These are arguably not just grave breaches of law, but grounds for impeachment.

Yet Tice cannot invoke the WPA to protect this crucially important whistleblowing. That's because employees working at intelligence agencies, including the CIA, DIA, and NSA, "and certain other intelligence agencies excluded by the President" are deemed excepted from the WPA, according to the Office of Special Counsel's publication, "The Role of the U.S. Office of Special Counsel."

(For employees who are covered by the WPA, the statute protects disclosure of information that a government employee reasonably believes evidences illegality, gross waste, flagrant mismanagement, abuse of authority, or a substantial and specific danger to public health or safety. The disclosure can be made to Congress, an interest group, or - as the U.S. Court of Appeals for the Federal Circuit has specifically held, in Horton v. Department of Navy - the press.)

Instead, Tice must rely on the Intelligence Community Whistleblower Protection Act of 1998 (ICWPA). This alternate scheme for disclosing information without fear of reprisal provides a voice to intelligence agency employees who are statutorily denied protection under the WPA, or who have been exempted by presidential determination.

It thus promised to, in the words of then-House intelligence committee Chairman Porter Goss, "create a front door for rank-and-file information sharing with Congress." And the legislative history of the ICWPA is clear that it was meant to create a procedure that employees of intelligence agencies could follow in order to bring to the attention of Congress urgent and serious concerns about intelligence activities. And such concerns are just what Tice raised.

In the ICWPA, Congress asserted that it had the right to receive classified information from whistleblowers working for intelligence agencies in the case of "serious or flagrant" problems. But, seeking to balance its need for information with national security requirements, Congress gave intelligence community whistleblowers access to Congress only through the intelligence committees (or through the Inspector General of their respective agencies.)

Tice complied with the statute - by communicating directly with the committees, rather than with Congress as a whole. He thus deserves ICWPA protection.

Tice's Disclosure to the Times is Protected by the First Amendment

But what about Tice's disclosure to the New York Times?

That disclosure is protected by the First Amendment. Indeed, it rightly belongs in the rank of the whistleblowing by "Deep Throat," recently revealed to be Mark Felt, and by Daniel Ellsberg, who famously disclosed the Pentagon Papers.

According to the Supreme Court's decision in Pickering v. Board of Education, public employee speech is protected under the First Amendment if its public benefits --that is, its political and social importance - outweigh the government's interest in maintaining efficient operations without disruption.

The political and social importance of Tice's disclosure could hardly be greater, as evidenced by the national debate it has sparked and the fact that the Senate Judiciary Committee is planning to hold hearings on the issue next month.

But what about the government's interest in maintaining efficient operations without disruption? The Administration claims an interest in secret wiretapping geared to prevent post-9/11 terrorist attacks, and complains that this wiretapping was disrupted by the Times article.

Here, though, disruption is just a euphemism for, "We got caught." It's hardly the kind of disruption from which the Supreme Court wanted to protect public employees. What the Court had in mind was something like what occurred in Connick v. Myers - with a public employee conducting in-office polls to see if others shared her criticisms of management. Tice did not disrupt the program's operation - he exposed its illegality.

Surely, the importance of Tice's disclosure overwhelms any makeweight interest the government might cite in preserving the secrecy of its lawbreaking program from Congress and the public. (Also in Tice's favor is the fact that it appears, thus far, that the information he disclosed was not classified.)

It's worth noting, too, that this lopsided balance also characterizes virtually all the disclosures that have been made about this Administration. It is through whistleblowers that America has learned of the torture memos, the Abu Ghraib prison abuse scandal, and secret CIA "black site" detention facilities abroad.

And it is because of former ambassador Joseph Wilson IV's whistleblowing - also to the New York Times but in a signed editorial - that we know that there was little actual evidence that Saddam Hussein ever sought uranium in Africa, even though this claim was the centerpiece of President Bush's assertion that Iraq had weapons of mass destruction, which in turn was the main justification for going to war.

Notoriously, the Administration then went after Wilson's wife, Valerie Plame. Two "senior administration officials" - later identified as Karl Rove, the President's strategist, and Lewis "Scooter" Libby, the Vice President's then-Chief of Staff - spoke to columnist Robert Novak, revealing that she was an undercover CIA operative. Their vengeance jeopardized Plame's safety, her contacts, and her career.

Make No Mistake: Any Criminal Investigation of the NSA "Leak" Is Pure Retaliation

No wonder, then, that the Administration is playing hardball with Tice, just as it did with Wilson. Indeed, it reportedly may be criminally investigating the Times' sources, which include Tice - even though, as I explained above, the ICWPA and the First Amendment together provide a complete and unassailable defense to his disclosures.

Any such investigation lacks any legal basis. It is purely retaliatory - just as the revelation of Plame's identity was retaliatory, meant to punish Wilson for undercutting the President's motive for going to war with Iraq.

All those who believe in the First Amendment, or simply in the necessity of protecting those who bring Presidential lawbreaking to light, ought not only to support Tice, but also insist that any investigation of him and the other Times sources be brought to an immediate end.


Jesselyn Radack is an adjunct professor at American University's Washington College of Law where she teaches professional responsibility. She also serves on the D.C. Bar's Legal Ethics Committee and works with the ABA Task Force on Treatment of Enemy Combatants.