NATIONAL SECURITY WHISTLEBLOWERS IN THE POST-SEPTEMBER 11TH ERA: LOST
IN A LABYRINTH AND FACING SUBTLE RETALIATION
=======================================================================
HEARING
before the
SUBCOMMITTEE ON NATIONAL SECURITY,
EMERGING THREATS, AND INTERNATIONAL
RELATIONS
of the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
FEBRUARY 14, 2006
__________
Serial No. 109-150
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
http://www.house.gov/reform
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COMMITTEE ON GOVERNMENT REFORM
TOM DAVIS, Virginia, Chairman
CHRISTOPHER SHAYS, Connecticut HENRY A. WAXMAN, California
DAN BURTON, Indiana TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania
GIL GUTKNECHT, Minnesota CAROLYN B. MALONEY, New York
MARK E. SOUDER, Indiana ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio DENNIS J. KUCINICH, Ohio
TODD RUSSELL PLATTS, Pennsylvania DANNY K. DAVIS, Illinois
CHRIS CANNON, Utah WM. LACY CLAY, Missouri
JOHN J. DUNCAN, Jr., Tennessee DIANE E. WATSON, California
CANDICE S. MILLER, Michigan STEPHEN F. LYNCH, Massachusetts
MICHAEL R. TURNER, Ohio CHRIS VAN HOLLEN, Maryland
DARRELL E. ISSA, California LINDA T. SANCHEZ, California
JON C. PORTER, Nevada C.A. DUTCH RUPPERSBERGER, Maryland
KENNY MARCHANT, Texas BRIAN HIGGINS, New York
LYNN A. WESTMORELAND, Georgia ELEANOR HOLMES NORTON, District of
PATRICK T. McHENRY, North Carolina Columbia
CHARLES W. DENT, Pennsylvania ------
VIRGINIA FOXX, North Carolina BERNARD SANDERS, Vermont
JEAN SCHMIDT, Ohio (Independent)
------ ------
David Marin, Staff Director
Rob Borden, Parliamentarian
Teresa Austin, Chief Clerk
Phil Barnett, Minority Chief of Staff/Chief Counsel
Subcommittee on National Security, Emerging Threats, and International
Relations
CHRISTOPHER SHAYS, Connecticut, Chairman
KENNY MARCHANT, Texas DENNIS J. KUCINICH, Ohio
DAN BURTON, Indiana TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida BERNARD SANDERS, Vermont
JOHN M. McHUGH, New York CAROLYN B. MALONEY, New York
STEVEN C. LaTOURETTE, Ohio CHRIS VAN HOLLEN, Maryland
TODD RUSSELL PLATTS, Pennsylvania LINDA T. SANCHEZ, California
JOHN J. DUNCAN, Jr., Tennessee C.A. DUTCH RUPPERSBERGER, Maryland
MICHAEL R. TURNER, Ohio STEPHEN F. LYNCH, Massachusetts
JON C. PORTER, Nevada BRIAN HIGGINS, New York
CHARLES W. DENT, Pennsylvania
Ex Officio
TOM DAVIS, Virginia HENRY A. WAXMAN, California
Lawrence J. Halloran, Staff Director and Counsel
J. Vincent Chase, Chief Investigator
Robert A. Briggs, Clerk
Andrew Su, Minority Professional Staff Member
C O N T E N T S
----------
Page
Hearing held on February 14, 2006................................ 1
Statement of:
McVay, James, Deputy Special Counsel, U.S. Office of the
Special Counsel; Thomas Gimble, Acting Inspector General,
Office of the Inspector General, Department of Defense,
accompanied by Jane Deese, Director, Military Reprisal
Investigations, Office of the Inspector General, Department
of Defense, and Daniel Meyer, Director, Civilian Reprisal
Investigations, Office of the Inspector General, Department
of Defense; Glenn A. Fine, inspector general, Office of the
Inspector General, Department of Justice; and Gregory H.
Friedman, Inspector General, Office of the Inspector
General, Department of Energy.............................. 374
Fine, Glenn A............................................ 397
Friedman, Gregory H...................................... 408
Gimble, Thomas........................................... 383
McVay, James............................................. 374
Provance, Samuel J., Specialist, U.S. Army, Department of the
Army; Lieutenant Colonel Anthony Shaffer, USAR,
Springfield, VA; Michael German, former Special Agent,
Federal Bureau of Investigation; Russell D. Tice, former
Intelligence Officer, National Security Agency, and member,
National Security Whistleblower Coalition; and Richard
Levernier, Goodyear, AZ.................................... 106
German, Michael.......................................... 132
Levernier, Richard....................................... 177
Provance, Samuel J....................................... 106
Shaffer, Anthony......................................... 122
Tice, Russell D.......................................... 169
Zaid, Mark S., esq., managing partner, Krieger & Zaid, PLLC,
Washington, DC; Beth Daley, senior investigator, Project on
Government Oversight; Thomas Devine, legal director,
Government Accountability Project; and William G. Weaver,
senior advisor, National Security Whistleblowers Coalition
[NSWBC].................................................... 240
Daley, Beth.............................................. 292
Devine, Thomas........................................... 329
Weaver, William G........................................ 356
Zaid, Mark S............................................. 240
Letters, statements, etc., submitted for the record by:
Daley, Beth, senior investigator, Project on Government
Oversight, prepared statement of........................... 295
Devine, Thomas, legal director, Government Accountability
Project, prepared statement of............................. 332
Fine, Glenn A., inspector general, Office of the Inspector
General, Department of Justice, prepared statement of...... 399
Friedman, Gregory H., Inspector General, Office of the
Inspector General, Department of Energy, prepared statement
of......................................................... 409
German, Michael, former Special Agent, Federal Bureau of
Investigation:
Prepared statement of.................................... 135
Response................................................. 143
Gimble, Thomas, Acting Inspector General, Office of the
Inspector General, Department of Defense, prepared
statement of............................................... 385
Kucinich, Hon. Dennis J., a Representative in Congress from
the State of Ohio:
New York Times article................................... 28
Various stories.......................................... 423
Levernier, Richard, Goodyear, AZ, prepared statement of...... 179
McVay, James, Deputy Special Counsel, U.S. Office of the
Special Counsel, prepared statement of..................... 377
Provance, Samuel J., Specialist, U.S. Army, Department of the
Army, prepared statement of................................ 108
Shaffer, Anthony, Lieutenant Colonel, USAR, Springfield, VA,
prepared statement of...................................... 125
Shays, Hon. Christopher, a Representative in Congress from
the State of Connecticut:
Memorandum and report.................................... 43
Prepared statement of.................................... 3
Various letters.......................................... 39
Tice, Russell D., former Intelligence Officer, National
Security Agency, and member, National Security
Whistleblower Coalition, prepared statement of............. 172
Waxman, Hon. Henry A., a Representative in Congress from the
State of California, prepared statement of................. 7
Weaver, William G., senior advisor, National Security
Whistleblowers Coalition [NSWBC], prepared statement of.... 358
Weldon, Hon. Curt, a Representative in Congress from the
State of Pennsylvania, information concerning intelligence
officials and whistleblowers............................... 103
Zaid, Mark S., esq., managing partner, Krieger & Zaid, PLLC,
Washington, DC, prepared statement of...................... 243
NATIONAL SECURITY WHISTLEBLOWERS IN THE POST-SEPTEMBER 11TH ERA: LOST
IN A LABYRINTH AND FACING SUBTLE RETALIATION
----------
TUESDAY, FEBRUARY 14, 2006
House of Representatives,
Subcommittee on National Security, Emerging
Threats, and International Relations,
Committee on Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 1:05 p.m., in
room 2154, Rayburn House Office Building, Hon. Christopher
Shays (chairman of the subcommittee) presiding.
Present: Representatives Shays, Duncan, Dent, Weldon,
Kucinich, Maloney, Van Hollen, Ruppersberger, and Waxman.
Staff present: Lawrence Halloran, staff director and
counsel; J. Vincent Chase, chief investigator; Robert A.
Briggs, clerk; Marc LaRoche, intern; Phil Barnett, minority
staff director/chief counsel; Kristin Amerling, minority
general counsel; Karen Lightfoot, minority communications
director/senior policy advisor; David Rapallo, minority chief
investigative counsel; Andrew Su, minority professional staff
member; Earley Green, minority chief clerk; and Jean Gosa,
minority assistant clerk.
Mr. Shays. A quorum being present, the hearing of the
Subcommittee on National Security, Emerging Threats, and
International Relations entitled, ``National Security
Whistleblowers in the Post-September 11th Era: Lost in a
Labyrinth and Facing Subtle Retaliation,'' is called to order.
All Federal employees are ethically bound to expose
violations of law, corruption, waste, and substantial danger to
public health or safety. But meeting that obligation to ``blow
the whistle'' on coworkers and superiors has never been easy.
Breaking bureaucratic ranks to speak unpleasant and unwelcome
truths takes courage and risks invoking the wrath of those with
the power and motivation to shoot the messenger.
Seldom in our history has the need for the whistleblower's
unfiltered voice been more urgent, particularly in the realms
of national security and intelligence. Extraordinary powers
needed to wage war on our enemies could, if unchecked, inflict
collateral damage on the very rights and freedoms we fight to
protect. The use of expansive executive authorities demands
equally expansive scrutiny by Congress and the public. One
absolutely essential source of information to sustain that
oversight: whistleblowers.
On September 11, 2001, we learned the tragic price of
relying on cold war paradigms and static analytical models that
could not connect the dots. Since then, a great deal of time
and money has been spent retooling the national security
apparatus to meet new threats. Today, in the fight against
stateless terrorism, we need intelligence and law enforcement
programs to function strictly according to the law and with
ruthless efficiency. And we need whistleblowers from inside
those programs, national security whistleblowers, to tell us
when things go wrong.
But those with whom we trust the Nation's secrets are too
often treated like second-class citizens when it comes to
asserting their rights to speak truth to power. Exempted from
legal protections available to most other Federal employees,
national security whistleblowers are afforded far less process
than is due as they traverse separate and unequal investigative
systems in the Department of Justice, the Department of
Defense, the Department of Energy, Central Intelligence Agency,
and other agencies.
They work in secretive communities institutionally and
cultural hostile to sharing information with each other, much
less those of us outside their closed world. In that
environment, reprisals for whistleblowing can easily be
disguised as personnel actions that allegedly would have taken
place anyway for failure to be a team player. Whistleblowers in
critical national security positions are vulnerable to unique
forms of retaliation. Suspension or revocation of a security
clearance can have the same chilling effect as demotion or
firing, but clearance actions are virtually unreviewable under
current whistleblower protections.
Last year, the Government Reform Committee approved a bill
to strengthen whistleblower protections for most Federal
employees. To help define the full scope of the problem faced
by national security whistleblowers, the proposal also directed
the Government Accountability Office [GAO], to study possible
correlations between protected disclosures and security
clearance revocations.
It is in that same cause we convened today, to better
understand the plight of national security whistleblowers in
this new and dangerous era. Should security clearance
revocations be included in the list of personnel practices
managers may not use against whistleblowers? What additional
protections would draw out needed disclosures without
infringing on the legitimate powers of the executive branch to
keep secrets?
This is an open hearing because employee rights and
management accountability must be discussed openly. There is
nothing top secret about gross waste or the abuse of power. At
the same time, witnesses with access to secured information
have assured us their testimony will avoid even the inadvertent
disclosure of classified materials, and we will, of course,
take care to observe those boundaries.
We are joined today by a panel of whistleblowers who will
describe their difficult journeys, a panel of experts on
whistleblower protections, and a panel of those in Government
to whom whistleblowers look for fairness and due process when
their courage is met with resistance and reprisals.
[The prepared statement of Hon. Christopher Shays follows:]
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Mr. Shays. We welcome everyone today, and with that I would
ask the ranking member of the full committee if he has a
statement.
Mr. Waxman. Thank you very much, Mr. Chairman, not only for
recognizing me but for holding today's hearing on national
security whistleblowers. I thank you also for working with the
Democrats to select today's witnesses.
We are going to begin with a panel of present and former
Government officials. They have three things in common: first,
they were all screened and approved by our Government to work
on our Nation's most secretive counterterrorism, national
security, and law enforcement programs; second, they all came
forward to report what they viewed as critical abuses in these
programs; and third, they all claim to have been retaliated
against for trying to correct these abuses.
There is one simple overarching question for today's
hearing: Do the existing laws of our Nation provide sufficient
protection for national security whistleblowers? Or should
Congress enhance safeguards for people who are trying to do the
right thing and protect this Nation?
The Bush administration has taken a consistent approach to
those who question it from within. It attacks them.
The White House attacked Joe Wilson, and his wife, CIA
agent Valerie Wilson, because Mr. Wilson disclosed that the
Bush administration relied on fabricated evidence in making its
case for war.
Richard Foster is an actuary at the Department of Health
and Human Services who tried to tell Congress the true cost of
the Medicare drug benefits. He nearly lost his job as a result.
General Eric Shinseki was forced to resign as Army Chief of
Staff when he correctly predicted that the United States would
need several hundred thousand troops to occupy Iraq.
Bunny Greenhouse, the top contracting official at the Army
Corps of Engineers, was removed after insisting on enforcing
the rules against Halliburton's monopoly oil contract in Iraq.
On the other hand, those who support the politics of this
administration get preferential treatment.
To this day, Karl Rove retains his security clearance in
spite of evidence that he mishandled classified information
regarding Valerie Wilson's position at the CIA.
The President has stated that Mr. Rove will keep his
clearance until he is actually charged with a crime. But that
is not the standard that was applied to today's witnesses.
Because they criticized administration policies, their
clearances were suspended without any criminal charges and
without any allegation that they disclosed classified
information.
This is a double standard, and it has dangerous
consequences. When future abuses occur, those who could blow
the whistle will see what happens and remain silent rather than
risk this kind of attack.
This result is bad for our country. Silencing national
security whistleblowers who are attempting to report valid
claims of waste, fraud, and abuse places our Nation in greater
danger, not less. This should not be a partisan issue.
Last fall, this committee considered a bill to expand
whistleblower protections for Federal employees. As written,
however, this bill excluded national security whistleblowers.
To address this gap, Congresswoman Maloney offered an
amendment that would have expanded the bill to national
security whistleblowers. At the time of the vote, many members
voted against that amendment.
To be clear, they did not say they were opposed to the
idea. They said they did not have enough information at that
time to make an informed decision. So I give credit to Chairman
Shays for calling today's hearing to understand what these
national security whistleblowers face.
My hope is that following this hearing, we can work
together on a bipartisan basis to introduce new legislation
that will provide national security whistleblowers with basic
protections. No one with a security clearance should have to
fear that his or her clearance can be pulled in retaliation for
truthfully reporting corruption or abuse.
The national security whistleblowers here today are not
alone. Many others could have testified, but we simply could
not accommodate all of them, and I have some of their written
statements here.
One is from Michael Nowacki, a former staff sergeant in the
U.S. Army who worked as a counterintelligence agent and
interrogator in Iraq. He reported serious flaws in U.S.
detainee practices, after which his security clearance was
stripped.
I also have a statement from Daniel Hirsch and a group of
several Foreign Service officers from the State Department who
also had their security clearances revoked for reporting what
they viewed as abuses.
I thank all of them for their written submission and ask
that their statements be made part of the official hearing
record. And I thank the witnesses who are here today for their
courage in speaking out.
Mr. Shays. Without objection, your requests for submission
to the record will happen, without objection.
Mr. Waxman. Thank you, Mr. Chairman.
[The prepared statement of Hon. Henry A. Waxman and the
information referred to follow:]
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Mr. Shays. The Chair would now recognize the ranking member
of the subcommittee, Mr. Kucinich.
Mr. Kucinich. I want to thank the Chair for calling this
hearing and thank our ranking member for the views that he just
expressed.
I think all over America people are asking, when they see
what is apparently a grab for power or an abuse of power, Where
is the Congress? What is Congress doing about it?
Congress is a co-equal branch of Government. We have just
as much of a right and a responsibility to determine the course
of events in this country as does the executive branch. This
subcommittee, therefore, exemplifies the valid and essential
power of the Congress of the United States in inquiring into
the treatment that those who take a stand on behalf of the
truth are receiving at the hands of those who have sullied the
truth in the executive branch.
The underlying question at this hearing today is, who will
speak up? Who will speak up if those who have taken the risks
to tell the truth are publicly punished, stripped of their
positions, pushed aside? Who will speak up at a moment of
peril? Who will speak up to defend this country's reputation,
its honor?
We are here today to take a stand on behalf of those who
took a stand on behalf of America. So I want to welcome the
whistleblowers who are with us. I know that they have been
eager to tell their stories, and they are patriots for coming
forward. They risked their jobs, their reputations, to make
this country safer and our Government more responsible by
pointing out our Nation's security vulnerabilities and
Government abuses.
How different our world and our Nation would be, how safer
it would be against global terrorism, had, for example, we
listened to FBI Agent Coleen Rowley's warnings prior to
September 11th.
Model employees are either ignored or told to keep their
mouths shut. Their honesty is not rewarded but, rather, they
and others in law enforcement, national security, and the
intelligence community are punished through a systematic and
harsh series of personal and professional retaliations.
Let me state clearly that there is absolutely nothing
subtle about the retaliation which whistleblowers face. Scare
tactics are used to enforce discipline to warn other potential
whistleblowers against coming forward. National security
whistleblowers are subject to harassment, to transfers or
demotion or unrelated personal attacks about their sexual
activities or personal finances. Instead of examining merits of
allegations, the story becomes shifted to the whistleblower's
conduct.
You only need to look at what is happening with the goings-
on in the National Security Agency right now, so-called leaks
of information, instead of addressing exactly what the problem
is, the attack suddenly has shifted to the people that are
putting forth the information.
Are we interested in either getting at the truth or are we
interested in attacking the truth tellers? That is one of the
questions that has to be answered here today. It seems that no
infraction is too small to use against a whistleblower. They
may have their security clearances suspended, as we will hear,
or revoked, essentially preventing them from ever working in
the intelligence community or the national security community
again. These are Federal employees who were apparently
trustworthy enough to routinely handle the most sensitive top
secret information in our country, passed extensive background
checks, but once they come forward with information of
importance to the American people and defending our national
honor, people are suddenly viewed as suspicious troublemakers
when they blow the whistle. They may even be forced to undergo
psychiatric examinations to see if they are mentally stable
enough to perform their duties.
This is a throwback to what we used to hear about in the
Soviet Union. In the old Soviet Union, if somebody was
challenging the Politburo or the practices of the government in
some public way and they were insiders, well, suddenly they
ended up getting shipped off to a psychiatric clinic. Methods
of retaliation are outrageous, and we should all be offended
that this occurs with seeming regularity and impunity in our
Federal agencies.
What is even more egregious to me is there is a double
standard for national security whistleblowers. Because of the
sensitivity of the information they work on, they do not have
the same protection as other Civil Service employees. They are
not allowed to speak freely to Congress, are not the subjects
of the already weak Whistleblower Protection Act of 1994, and
have little recourse from third parties ostensibly established
to hear their claims, such as the Merit Systems Protection
Board or the judicial system.
So who gets to hear their claims? Well, it is left to the
employing agencies who are the ones who are often exposed, who
then turn around and act as judge and jury when national
whistleblowers come forward with an allegation. This should be
the first place for recourse, not the first and the last.
So, Mr. Chairman, I hope that you will join with those of
us on this side of the aisle who will advocate strong
legislation to close the loopholes in our whistleblower
protection laws. These basic protections should be applicable
to all Federal employees and Federal contractors across the
board. This should not be a partisan issue, and I trust that in
calling this hearing today, you will proceed in that spirit.
Our Nation's security should be the first priority, not
protecting agencies or not protecting management from
embarrassment or damaging information. I look forward to
working with you on such legislation.
Again, Mr. Chairman, I want to thank you for working with
us to hold this hearing and to include the witnesses we
requested. I think their testimony will show the urgency of the
needed reform of our whistleblower laws, and I hope they are
going to be willing and allowed to speak freely and candidly
and we can rectify the retaliations that people have suffered.
I want to say that again. We need to rectify the retaliations
which people have suffered because they had the courage to tell
the truth.
Thank you, Mr. Chairman, and I want to welcome the
witnesses.
[The information referred to follows:]
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Mr. Shays. I thank the gentleman.
At this time the Chair would recognize the gentlelady from
New York, Carolyn Maloney.
Mrs. Maloney. Thank you, Mr. Chairman, for calling this
hearing and Ranking Member Waxman, and I truly appreciate your
continued attention to this issue. It is tremendously
important, I would say, to the national security of our
country. And when we do work on this issue, it reminds me of
the old adage, ``The truth shall set you free.''
Unfortunately, it appears that the current administration
has taken this to a new level, and I cite the examples that
Chairman Waxman mentioned earlier of the Wilsons and General
Shinseki and others. The truth will set you free because if you
speak up, you get fired. And we all know that the whistleblower
protections are weak and that the main law is the Whistleblower
Protection Act. However, this law has been weakened by recent
court decisions, and even the weak protections offered under
this law do not apply to national security whistleblowers from
the uniformed military, including the FBI, the CIA, the Defense
Intelligence Agency, the National Security Agency, and the
contractors at these very extremely important agencies.
Complicating the situation is the veil of secrecy most of
their work is covered by. This subcommittee has repeatedly
heard from people who have had their security clearances
revoked after blowing the whistle on what they felt was a
breach of security for our country. And we have been told that
wrongdoers have been allowed to continue their actions while
the whistleblower has been made to be the one to suffer.
Clearly, we must fully protect our national security, but
we also must provide secure avenues for illegal activity to be
swiftly dealt with. That is why back in September, when the
full committee was marking up H.R. 1317, the Federal Employee
Protection of Disclosure Act, that I offered the amendment that
would make it clear that whistleblower protections are extended
to employees in national security and the intelligence
community. I believe that is an extremely important,
substantive amendment. Regrettably, it failed along party
lines, but the majority indicated, and I appreciate their
statements, that their opposition was based on the fact that we
had not had adequate discussion and hearings on it, and that
they simply did not know enough about the amendment to support
it.
So it is my hope that today after this hearing and our
subcommittee's understanding of it on this subject, that my
colleagues on the Republican side of the aisle will be able to
support this effort in the future.
As Mr. Waxman mentioned in his opening comments, our staffs
have been working on legislation based on the amendment that I
just mentioned and that would extend the protections of
whistleblower protections to employees of national security and
the intelligence community. I hope that after this hearing we
will be able to work together and pass this into law.
Again, I thank the chairman and ranking member for holding
these hearings. I look forward very much to the testimony, and
I appreciate all the panelists being here.
Thank you very much. I yield back.
Mr. Shays. Thank you, Mrs. Maloney.
At this time the Chair would recognize Mr. Van Hollen from
Maryland.
Mr. Van Hollen. Thank you, Mr. Chairman, and let me start
by thanking you for holding this hearing today. As has been
said, this is not a partisan issue. This should not be a
Republican issue or a Democratic issue. This is an issue that I
think is important to the American people to make sure they
have confidence in the integrity of their own Government. I
think the American people are questioning the integrity of that
Government these days, and it is important that they know that
people within our Government, civil servants, whether they are
in the national security apparatus or whether they are in our
civil institutions on the civilian side, that people who see
and hear wrongdoing within those agencies are free to come
forward and report it without fear of being punished, without
fear of being retaliated against for coming forward with the
truth. And I think the integrity of our national security
institutions depends on people having faith and confidence that
is going to happen, that people will be able to come forward if
they see waste, fraud, abuse, if they see law breaking, if they
see coverup.
So I think this is a very important hearing, Mr. Chairman,
and I think it is an important step in helping to restore the
confidence of the American people in our Government and making
sure that indeed we do put safety first and the public safety
first and the national security interests first and make sure
that people who are telling the truth are free to come forward
without fear of reprisal. And it is important that people under
that these are people who are putting their own careers at
risk. This is not an easy thing to do to come forward. And as
has been said, I think these are true patriots, and we should
welcome them in the interest of our own security.
So thank you, Mr. Chairman, for holding this hearing.
Mr. Shays. I thank the gentleman.
Before calling on our witnesses, we will do a few UCs.
I ask unanimous consent that all members of the
subcommittee be permitted to place an opening statement in the
record and that the record remain open for 3 days for that
purpose, and without objection, so ordered.
I ask further unanimous consent that all witnesses be
permitted to include their written statements in the record,
and without objection, so ordered.
I ask unanimous consent that Mr. Waxman's request to put a
statement of Michael S. Nowacki, former staff sergeant, U.S.
Army, and then a statement with a letter of Concerned Foreign
Service Officers, dated February 3rd, and without objection,
will be put in the record.
I ask further unanimous consent that the following be made
part of the record: a letter from the subcommittee dated
November 10, 2005, inviting the CIA Inspector General John L.
Helgerson to participate in today's hearing; and a letter from
the CIA Office of Legislative Affairs indicating the CIA's
Office of the Inspector General
``has never received, nor had to investigate, a whistleblower
complaint in which an employee claimed that their clearances
were revoked as a method of retaliation for their whistleblower
activities.''
Without objection, these letters will be made part of the
record.
[The information referred to follows:]
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Mr. Shays. I do want to comment that I think it is really
very surprising that the Inspector General would communicate
through us through the Director of Congressional Affairs. I
like to view that the IG's office is totally independent and
would have their own way of communicating with us without
having to go directly through the department.
Do we have another unanimous consent?
Mr. Waxman. Before you leave that one, I find that an
amazing letter because the Director of Congressional Affairs at
the CIA, and I think you are correct in saying it, I do not
know why he has to respond to your letter to the CIA. But, in
effect, he says there is no reason for the CIA to come here
because they have ``never received, nor had to investigate, a
whistleblower complaint in which an employee claimed their
clearances were revoked as a method of retaliation for their
whistleblower activities.'' Well, this hearing today I think is
going to make it very clear that cannot possibly be the case.
Not everybody is from CIA, but it seems to me that we do have
people from the CIA that have been retaliated against. It is
almost as if the CIA could not even find out what is going on
in its own organization, let alone what is going on elsewhere
around the world.
So I just wanted to make that comment and join you in my
concern that they should be more forthcoming.
Mr. Shays. Mr. Kucinich.
Mr. Kucinich. I am appreciative of the fact that the
chairman brought that letter forward because any of us who have
ever dealt with the CIA understands that letter is lacking in
veracity, to put it mildly. I think that while we are going to
have our hands full today, Mr. Chairman, with the testimony
that we are going to receive and evaluate and then issue a
report, this letter, Mr. Chairman, offers a whole new
possibility for a line of inquiry into the Central Intelligence
Agency and how they are trying to escape oversight, which they
are not free from, by the way.
So I just wanted to say hi. [Laughter.]
Mr. Shays. I would ask unanimous consent that the following
be made part of the record: two CRS memoranda concerning the
applicability of the Privacy Act to congressional investigative
inquiries, and the Department of Justice IG report of the
investigation into allegations from Michael German.
[The information referred to follows:]
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Mr. Shays. I also welcome our distinguished colleague,
Representative Curt Weldon from Pennsylvania and ask unanimous
consent that he be allowed to participate in this hearing, and
without objection, so ordered.
Mr. Weldon, I don't know if you have an opening statement
before we go to the witnesses, but we would recognize you.
Mr. Weldon. First of all, I thank you and the distinguished
members of the subcommittee and the distinguished ranking
member.
I think everyone on this subcommittee signed a letter that
I circulated in December, 248 of our colleagues, asking
Secretary Rumsfeld to allow witnesses to appear before Congress
on Able Danger. They had tried to stonewall those appearances
for several months. You have one of the key witnesses here
before you, Lieutenant Colonel Anthony Shaffer, who is a
decorated veteran, 23-year intelligence officer, who has been
involved in the most dangerous areas of the world, embedded
with our troops, and who had information to offer that could
help us understand what happened before September 11th. They
went to such great lengths that he was within 2 days of losing
not only his pay but his health care for his two kids and
destroying him completely until I, not just with the help of
the 248 Members from both parties, both Steny Hoyer and Roy
Blunt signed the letter, and all of you as well--but Gordon
England at DOD on behalf of the Secretary joined in with the
new head of DIA to put Tony back into place so he could testify
today in uniform, and tomorrow he will testify before the House
Armed Services Committee on what is going to be a hearing that
is going to change, I think, the nature of this city.
I am not here to hurt any one administration, but, Mr.
Chairman, I would ask unanimous consent to include summaries of
whistleblowers I have worked with over the years: Jay Stewart,
who was the former Director of Intelligence for DOE, had his
career destroyed.
Notra Trulock was Director of Intelligence at DOE,
testified before the Cox Commission, had his career destroyed.
Dr. Gordon Oehler was Director of Non-Proliferation at the
CIA, made the mistake of telling us the truth, was eased out of
his office.
Mike Maloof, Chief of Technology Security Operations
Division in DTRA, has recently had his career destroyed.
Lieutenant Jack Daly, a naval intelligence officer, was
lasered in the eye, and the administration covered up the laser
operation by a Russian ship, had his career destroyed.
John Deutch and Jim Woolsey, both their stories are in here
that summarize what has happened to them.
And as late, Mr. Chairman, as yesterday afternoon,
Lieutenant Colonel Shaffer, who was given the approval to work
with DIA to prepare his testimony for tomorrow, was approached
by DIA official questioning him about what he was going to say,
and you can ask him in his own words, but to me it was a clear
effort at intimidating him.
Mr. Chairman, it is extremely important, as someone who
works on defense issues constantly, homeland security and
defense, with my Democrat colleagues in a bipartisan way, that
we not let this happen. It has happened in this administration,
and it happened in the previous administration. It should not
be acceptable any time a person simply wants to tell the truth.
That is all Tony Shaffer wanted, to tell the truth, and they
were within 2 days of taking away his health care for his kids
and destroying his life.
That is not America, and that is not what this country is
about, and I would hope that you and Ranking Member Waxman
would use your influence to put legislation forward to protect
people like this and simply allowing us to understand the
problems that our Government has.
I also want to acknowledge Sibel Edmonds, who is in the
audience, who also played a critical role in helping us
understand. She, too, was a victim of harassment and
whistleblowing action.
You know, I could go on and on, but these are the ones I
have been involved with personally, and I submit these for the
record.
Mr. Shays. Without objection, we will submit those to the
record.
[The information referred to follows:]
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Mr. Shays. We are going to get to the panel. I just would
like to make one point. I think both sides of the aisle, at
least in this subcommittee, are very supportive of the effort
that was introduced, I think by Mrs. Maloney, to extend the
same protections to those in the intelligence side. That
amendment was not approved in part because some said more
information, but the real significant reason was this committee
reported out that bill and wanted to send it to the floor and
knew that it would end up in every committee in Congress and
never make the floor. So we are going to try to deal with that
issue in a separate way, but we did put in that bill a
requirement that the GAO report back to us on the issue of
intelligence.
So at this time, let me just acknowledge that we have
Specialist Samuel J. Provance from the Department of Army; we
have Lieutenant Colonel Anthony Shaffer from the U.S. Air
Force; we have Mr. Michael German from the FBI; we have Mr.
Russell Tice from NSA; and we have Mr. Richard Levernier from
DOE. We thank them all.
I would like them to stand, and we will swear you in, and
then we will get to your testimony.
[Witnesses sworn.]
Mr. Shays. Note for the record all five of our witnesses
have responded in the affirmative. You have a story to tell,
gentlemen, and we have three panels so we will be a little more
strict about the time. What we will do is when your 5 minutes
is up, you will have another minute to kind of wrap things up,
but we would like you to be done within 6 minutes. If it goes
6\1/2\, I am not going to lose sleep, but we do want your story
to be told.
And so we will start with you, Specialist Samuel J.
Provance.
STATEMENTS OF SAMUEL J. PROVANCE, SPECIALIST, U.S. ARMY,
DEPARTMENT OF THE ARMY; LIEUTENANT COLONEL ANTHONY SHAFFER,
USAR, SPRINGFIELD, VA; MICHAEL GERMAN, FORMER SPECIAL AGENT,
FEDERAL BUREAU OF INVESTIGATION; RUSSELL D. TICE, FORMER
INTELLIGENCE OFFICER, NATIONAL SECURITY AGENCY, AND MEMBER,
NATIONAL SECURITY WHISTLEBLOWER COALITION; AND RICHARD
LEVERNIER, GOODYEAR, AZ
STATEMENT OF SAMUEL J. PROVANCE
Specialist Provance. Thank you, sir. My name is Samuel
Provance, and I am a resident of Greenville, SC. After some
years in college, I enlisted in the U.S. Army in 1998 and
sought a specialization in intelligence in 2002. I was drawn to
the Army by the professional training and the good life it
promised, but also because it provided me an opportunity to
serve my country.
The Army has stood for duty, honor, and country. In wearing
my country's service uniform and risking my life for my
country's protection, it never occurred to me that I might be
required to be a part of things that conflict with these values
of duty, honor, and country. But my experience in Iraq and
later in Germany left me troubled by what I saw happening to
the Army. I saw the traditional values of military service as I
understood them compromised or undermined. I am still proud to
be a soldier and to wear the uniform of the U.S. Army. But I am
concerned about what the Army is becoming.
While serving with my unit in Iraq, I became aware of
changes in the intelligence colleague procedures in which I and
my fellow soldiers were trained. These changes involved using
procedures which we previously did not use and had been trained
not to use and in involving MP personnel in so-called
preparation of detainees who were to be interrogated. Some
detainees were treated in an incorrect and immoral fashion as a
result of these changes. After what had happened at Abu Ghraib
became a matter of public knowledge and there was a demand for
action, young soldiers were scapegoated while superiors
misrepresented what had happened and misdirected attention away
from what was really going on. I considered all of this conduct
to be dishonorable and inconsistent with the traditions of the
Army. I was ashamed and embarrassed to be associated with it.
When I made clear to my superiors that I was troubled about
what had happened, I was shown that the honor of my unit and
the Army depended on either withholding the truth or outright
lies. I cannot accept this. Honor cannot be achieved by lies
and scapegoating. Honor depends on the truth. It demands that
we live consistently with the values we hold out to the world.
My belief in holding to the truth led directly to conflict with
my superiors and ultimately my demotion.
I welcome the opportunity to speak to you today and to
answer your questions.
[The prepared statement of Specialist Provance follows:]
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Mr. Shays. Thank you very much for your testimony and for
being here.
Colonel Shaffer. And would you make sure your mic is
closer. There we go.
STATEMENT OF ANTHONY SHAFFER
Colonel Shaffer. Mr. Chairman, distinguished members of the
subcommittee, thank you for the opportunity to appear before
you today to offer my comments surrounding the use of the
security clearance system as a method of intimidation and
retaliation, and in my case, the removal of my security
clearance based on my protected disclosures of information to
the 9/11 Commission and to Congress regarding Operation Able
Danger.
Many of us take seriously our oath of office to support and
defend the Constitution against all enemies, foreign and
domestic. We demonstrate our commitment by decades of service
to this country trying to conduct operations to ensure our
citizens are protected.
There are officers within the bureaucracy who abandon their
oath of office and instead become focused on a strategy of
self-preservation and obstruction of accountability. A culture
now exists in which leaders with this abhorrent set of values
are in charge of large portions of the intelligence community.
It was their missteps before September 11th that materially
contributed to our failure to detect and neutralize the
September 11th attacks.
While disclosure of Able Danger information to the 9/11
Commission and to Members of Congress was not the only factor
in the revocation of my clearance, it is my judgment and the
judgment of others that it is the primary reason that DIA made
such an obvious, unjustifiable effort to remove and silence me.
It is notable that I have been requested, as Congressman Weldon
pointed out, to speak in front of the House Armed Services
Committee to provide a top secret/full disclosure testimony on
the Able Danger operation tomorrow.
Let me be up front here. I am no Boy Scout. I was not hired
as an intelligence officer because I hang out at the Christian
Science Reading Room. My job is to get information using tried
and true intelligence methodologies, techniques that go back to
the dawn of civilization. I have been trained to take risks, to
create high-risk/high-gain operations, which I did successfully
for 20 years.
My awards and accolades have been provided to the
subcommittee for your background, and according to my legal
counsel, until I disclosed the Able Danger information, I was a
``rock star.'' DIA arbitrary removed me from active
intelligence officer status in June 2004, where this process
began.
It was in my work as the chief of a DIA special mission
task force back in 1998 that I became involved with Able
Danger. My officers and I were working at the cutting edge of
technology and DOD black operations. Most all of my operations
and operational records remain classified as most of the
operations and the capabilities we established are still
ongoing and being utilized in the war on terrorism.
I accepted a recall to active duty after the September 11th
attacks, took command of an Operating Base, and deployed to
Afghanistan twice. During the deployment to Afghanistan in
October 2003, I made my first protected disclosure to Dr.
Phillip Zelikow, the staff director of the 9/11 Commission,
regarding Able Danger and the failures of DIA and other DOD
elements to maximize the intelligence information and promise
of the project.
I wish to emphasize four key points.
I have made protected disclosures, starting in October
2003, regarding Able Danger, a pre-September 11th operation
designed to identify and conduct offensive operations against
al Qaeda. It was these protected disclosures, first made to the
9/11 Commission, that I believe is the basis for DIA's adverse
actions against me. I revealed the fact that there were
internal DOD and DIA failures regarding September 11th. It was
the factor that resulted in the allegations being drummed up
against me starting in March 2004.
The three allegations that DIA tried to use against me were
first related to an attempt to thinly veil administrative
issues being tied to the Uniform Code of Military Justice's
criminal issues. There is a clearly defined process for
criminal issues. These allegations never once grew anywhere
close to that level. In addition, they were never, according to
DOD's personal security guidelines, supposed to be used as
clearance adjudication issues. The three allegations used by
DIA for the basis of their attempt to end my career are as
follows:
Undue aware of the Defense Meritorious Service medal. DIA
claimed I received an unlawful award unduly, despite the fact
the award was for, amongst other things, Able Danger. I
provided classified officer evaluation reports and other
supporting documents showing that the award was due. There was
no evidence in the DIA IG report that I did anything wrong. To
the contrary, it showed I followed the process I was given by
the chain of command. I wear the award today on my chest. You
can see it. The Army chose to not take any adverse action
against me.
Misuse of a Government phone, the second issue. Misuse of a
Government phone to $67. During the time I was in command of an
operating base where I had access and ran millions of dollars
of equipment and more than a dozen personnel, they did an
investigation of my command. The only thing they could find is
that over an 18-month period I would periodically program a
Government phone to forward phone calls to my personal mobile
phone so they could stay in touch with me on weekends, for a
charge of 25 cents for every call forward, accumulated over 18
months.
Mr. Weldon. Where were you?
Colonel Shaffer. Here in the local area, sir. I ran a base,
which I cannot get into, which was another organization.
Mr. Weldon. It broke down?
Colonel Shaffer. Yes, sir.
The last issue, filing a false voucher for $180. I attended
Army Command and General Staff School at Fort Dix, NJ, a
requirement for the promotion to Lieutenant Colonel. Despite
this being a wholly legal claim for mileage, which DIA
processed through their system legally, I was told by the DIA
IG that I falsely stated the claim even though there is clear
evidence and I obviously got promoted to Lieutenant Colonel.
They said because there was no expense to the Government, it
was an illegal claim, although I could have easily filed it on
my income tax had it been rejected by the Government.
To summarize the allegations, the total alleged loss to DOD
was $250. The DIA Inspector General did falsely and without
evidence make conclusions on the investigation of wrongdoing
which could not be supported.
DIA then took these false allegations, embellished them,
and went about resurrecting allegations which go back to high
school, where I disclosed on a 1986 polygraph regarding some
pens. A 1986 polygraph that I disclosed. This was not an
investigation. And it goes back 30 years.
DIA's allegations were refuted, repeatedly, on three
separate occasions: in writing in April 2005, in an oral
statement in June 2005, and again in my final appeal in
November 2005; all to no avail. These issues were offered in
writing. They have been offered to the subcommittee in writing
so you can review them yourself. One of the most egregious
rejections was they rejected a DSS senior special agent's
statement in writing saying that she had investigated and
refuted these allegations prior to 1995.
Despite the Army's ``clearing me'' of wrongdoing and
promoting me to Lieutenant Colonel, sorry, let me conclude.
I became a whistleblower not out of choice, but out of
necessity. Many of us have a personal commitment to the truth,
and----
Mr. Shays. I don't mean to speed up. Slow down a little
bit.
Colonel Shaffer. OK, sorry. I became a whistleblower not
out of choice, but out of the necessity to tell the truth. The
commitment to defend this country is not only simply going into
combat but actually trying to fight the bureaucracy which has
slowed us down in many instances.
I have tried to expose the truth of the September 11th
attacks, which I will hopefully provide more information
tomorrow. There is a need to legitimately hold individuals
accountable for their actions or inaction regarding clearances
and the security clearance system. There should be, I believe,
an independent IG which looks at issues and also a ``must
issue'' system which shows some ability to issue a person a
security clearance and retain it as long as there are no
allegations against them and establish, if you will, a list of
penalties for minor indiscretions which could be used
objectively for either an SES or a sergeant, no matter what
that is.
Anyway, thank you for allowing me to share with you the
information regarding the DIA retaliation against me regarding
my disclosures of Able Danger information.
[The prepared statement of Colonel Shaffer follows:]
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Mr. Shays. Thank you, Colonel, for your statement. Thank
you both who have testified so far for your service to our
military. And just to say that if you don't cover anything in
your testimony, it is part of the record. Second, we are going
to have extensive questioning of this panel, and you will be
able to, I think, cover the points if you thought you left
anything out.
Colonel Shaffer. Thank you, sir.
Mr. Shays. Mr. German.
STATEMENT OF MICHAEL GERMAN
Mr. German. Thank you. My name is Michael German, and I am
a former FBI special agent. Chairman Shays, Ranking Member
Waxman, Ranking Member Kucinich, thanks for having this
hearing, and thanks for inviting me to speak with you today.
Shortly after the September 11th attacks, FBI Director
Robert Mueller made public statements urging FBI employees to
report any problems that impeded FBI counterterrorism
operations. He offered his personal assurance that retaliation
against FBI whistleblowers would not be tolerated. I listened
and obeyed the Director's orders. I reported misconduct in a
terrorism case, through my chain of command, as directed. I did
my duty. Unfortunately, Director Mueller did not uphold his end
of the bargain. Retaliation was tolerated, accepted, and
eventually successful in forcing me to leave the FBI.
I am here today to tell you about a system that is broken.
The Department of Justice Inspector General's report on my case
provides a rare post-September 11th glimpse into the
dysfunctional management practices that continue to obstruct
FBI counterterrorism operations and continue to allow FBI
managers to retaliate against agents who report their
misconduct. But the IG report is too little, too late. I am
here not because I think you can help me. I am here because
your action is needed to fix a broken system before another
terrorism investigation is allowed to fail.
At the time I made my complaint, I had 14 years of
experience as a special agent of the FBI. During my career I
twice successfully infiltrated terrorist organizations,
recovered dozens of illegal firearms and explosive devices,
resolved unsolved bombings, and prevented acts of terrorism. I
had an unblemished disciplinary record, a Medal of Valor from
the Los Angeles Federal Bar Association, and a consistent
record of superior performance appraisals.
In early 2002, I was asked to assist in a Tampa Division
counterterrorism operation that started when a supporter of an
international terrorist organization met with a leader of a
domestic terrorist organization. This January 2002 meeting was
recorded by an FBI cooperating witness as part of an ongoing
FBI domestic terrorism investigation. I quickly became aware of
deficiencies in the case, but informal efforts to get the case
on track were met with indifference by FBI supervisors. In
August 2002, I learned that part of the January meeting had
been recorded illegally, in violation of Title III wiretap
regulations.
When I brought this to the attention of the Orlando
supervisor responsible for the investigation, he told me we
were just going to pretend it did not happen. In 14 years as an
FBI agent, I had never been asked to look the other way when I
saw a violation of Federal law. I reported this violation to my
superiors, and that is when my journey in the labyrinth began.
Over the next 2 years, my complaint was passed from my ASAC
to the Counterterrorism Division, to the Tampa Division SAC, to
the FBI's Office of Professional Responsibility, to the
Department of Justice's Inspector General, and to the FBI
Inspection Division, none of whom actually initiated an
investigation. Instead, FBI officials backdated, falsified, and
materially altered FBI records in an attempt to cover up their
mistakes.
Meanwhile, I was removed from one terrorism investigation,
prevented from participating in a second terrorism
investigation, and barred from training other agents in the
undercover techniques that enabled me to infiltrate terrorist
groups. Retaliatory investigations against me were pursued by
FBI inspectors who refused to divulge the names of my accusers
or document their interviews.
For 2 years, I worked within the system to try to get these
deficiencies addressed, with no success. My career was
effectively ended. When it became clear that no one would
address this matter appropriately, I chose to report the matter
to Congress and to resign from the FBI in protest. Only the
public exposure of this matter finally compelled the IG to act.
Last month, a full year and a half after I resigned, 3 years
after my first formal complaint to the IG, and 4 years after
these events took place, the IG finally issued a report of its
investigation. That report confirms many of my original
allegations: the Tampa Division terrorism case was not properly
investigated or documented; the Tampa Division supervisors
failed to address these deficiencies; the only effort Tampa
Division made in response to an illegal wiretapping violation
was to place the tape into the personal possession of the
Orlando supervisor while Tampa managers officially denied that
the recording existed. The IG found that Tampa officials
backdated and falsified official FBI records in an attempt to
obstruct the internal investigation of my complaint.
The IG report details a continuous collaborative effort to
punish me for reporting misconduct by FBI managers, yet the IG
only grudgingly admits that I was retaliated against. An
Orlando supervisor justified removing me from one case because
I unilaterally discussed the case with headquarters. A Portland
SAC tells his staff that my participation in a second terrorism
investigation is problematic because I was a whistleblower who
requested to speak to Congress. The unit chief of the
undercover unit tells his staff that I will never work
undercover again, yet none of this is considered retaliation.
Meanwhile, the FBI managers who backdated, falsified, and
materially altered FBI records were given a pass. I hope you,
as Members of Congress responsible for overseeing the
Department of Justice, find this unacceptable.
In closing, my odyssey is a clear example of the need for
greater congressional oversight of the FBI and the Department
of Justice. The system is broken. It was broken before
September 11th, and it has not been fixed. This is not a
question of balancing security interests against liberty
interests. It is a question of competence and accountability.
Neither security nor civil liberties are protected when
incompetent FBI managers can so easily falsify FBI records to
cover up their misconduct.
I would request, in addition to my written statement to the
committee, that my written response to the Inspector General's
staff report be admitted as well.
Thank you.
[The prepared statement of Mr. German follows:]
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[The response referred to follows:]
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Mr. Shays. Thank you, Mr. German.
Mr. German, I could have closed my eyes, when you talked
about falsification and so on, when we had our hearing about
Mr. Salvati, who was in prison on death row for 30 years
because two FBI agents falsely accused him, knew that he was
innocent of the crime because they knew who committed the
crime, but because they were trying to cover up one of their
sources, they let him languish in prison for 30 years, and his
wife visited him every week for 30 years. He is out now. But
wouldn't it have been incredible if someone from the FBI had
been a whistleblower then? Thank you for your testimony.
Mr. Tice.
STATEMENT OF RUSSELL D. TICE
Mr. Tice. Mr. Chairman, distinguished members of the
subcommittee, I thank you for having me on the subcommittee as
a speaker. I realize this is Valentine's Day. I hate to have to
give you another horror story like it would be Halloween, but,
unfortunately, that is what I am about to do.
My career started in 1985 by joining the Air Force right
after getting out of college. I worked in the SIGIN field in
the Air Force. From there I became a contractor working SIGIN
issues for the National Security Agency as well as a few other
intelligence agencies. From there I became a Government
employee intelligence analyst for the Department of the Navy.
From there I moved to the Defense Intelligence Agency as an
intelligence officer, and from there I moved back home--at
least I considered it a homecoming--to the National Security
Agency.
In the spring of 2001, I noticed that a coworker--and this
was when I was at DIA--exhibited the classic signs of being
involved in espionage. I liked this coworker. Everyone liked
this coworker. But, nonetheless, the signs were frequent travel
to a communist country, a political philosophy that lent itself
that the United States should not come to the support of a
democratic nation against the communist country, late hours on
a classified computer, living beyond her means, buying a home
that she should not have been able to afford at her GS level. I
came to the conclusion that I would have to report this because
ultimately it was my responsibility. The young lady was popular
so I kept it very quiet in doing so. I told none of my
coworkers, nor my supervisor that I had done so.
Well, a few things happened after that. I was contacted by
the DIA counterintelligence officer involved in the case, and
he said he was going to look into it. Shortly after that
encounter with the DIA counterintelligence officer, the mother
of the individual who was, I thought at that time, very high up
in DIA, came to our office even though she was recently
retired. I thought this was highly unusual, and I told the
counterintelligence officer that. He ultimately told me that
there was nothing to it. It was a coincidence.
Ultimately, I found out that this woman, the mother, was a
lot higher up than I thought. She was actually a Deputy in the
Department of Defense at the Pentagon for Command, Control,
Communications and Intelligence. She was also a Principal
Deputy Director at the Defense Security Service, and she was
high up before that in DISA, the Defense Information Systems
Agency. But, nonetheless, I believe to this day that the mother
was there possibly to warn the daughter that something was
coming up because it made no sense that she had showed up.
Maybe 2 weeks after that encounter, the DIA counterintelligence
officer told me that there was nothing to my suspicion.
After I returned to the National Security Agency in
November 2002, I was involved in the operational intelligence
work for the Iraq war, and we were quite busy, so I really did
not have a whole lot of time to think about what happened
before. When things started winding down at the initial stage
of the Iraq situation with our military forces going in, I had
a little bit of time to start reading through some things. One
of the things I read through was two FBI agents in California
that had been involved apparently or supposedly swapping
counterintelligence secrets for sex with a suspected Chinese
double agent. At that time, remembering that ultimately I got
blown off pretty quick on my suspicions, I sent an e-mail on a
classified system to the individual at DIA--no one else, just
to that individual. Up until that time, no one else knew. At
that point I basically said that the FBI was incompetent in
dealing with counterintelligence measures.
Well, I found out very quickly after that
counterintelligence agent contacted security at NSA, and 2 or 3
days after that, I was contacted and told that I had to submit
to an emergency psychological evaluation. I had just been to my
routine psychological evaluation at NSA in preparation for my
swap over from DIA back to NSA and passed with flying colors.
So 9 months later, the very same office is now calling me for
my emergency psychological evaluation.
At that time, I was told I was wrong about my suspicions. I
also believe that my phone may have been tapped and that
ultimately later I was being followed by the FBI. I know that
to be true because I turned the tables on one of the FBI agents
that was following me. I walked up behind him, and he was
wearing his service pistol and his FBI badge on his hip, so
there wasn't a whole lot of question there.
Nonetheless, I was called for a psychological evaluation,
and I was very quickly determined to be mentally ill, suffering
from paranoia. At that point, I went up the chain of command. I
even went to the Deputy Director of NSA, who I just happened to
know personally, to no avail. I waited a few months--in the
motor pool, by the way, of NSA was where I was sent. I finally
went to Senator Mikulski and asked her as my congressional
representative to help out. I was told at that point that I was
off the reservation or informed that I was off the reservation
and I would pay dearly for doing so.
Mr. Shays. Who said that?
Mr. Tice. I was told that by the person that was dealing
with the liaison office, that by doing so I was likely to pay
dearly, and that I was putting my head ``above the radar
screen.''
Mr. Shays. OK. Please finish up your statement.
Mr. Tice. Sure. To make things quick, I went to the Merit
Systems Protection Board and basically was told the Merit
Systems Protection Board cannot look at the merits of my case
as ultimately having my security clearance suspended. I went to
the DOD IG. The DOD IG went to NSA's IG and allowed NSA to
investigate themselves. Ultimately that report came out against
me.
It all turns basically that I was not left with many
options. I have some details. Ultimately it is 17 pages that I
would like to have you read and have submitted to the record.
But, nonetheless, you know, on my way in here, walking by the
Supreme Court temple, I notice inscribed in the entrance that
it says, ``Equal Justice Under the Law.'' In the intelligence
community, as an intelligence employee, there is no equal
justice under the law. Whistleblower protection acts do not
apply to us.
Thank you very much.
[The prepared statement of Mr. Tice follows:]
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Mr. Shays. Thank you, Mr. Tice.
Mr. Levernier.
STATEMENT OF RICHARD LEVERNIER
Mr. Levernier. Thank you for holding this hearing. My name
is Richard Levernier. I worked for the U.S. Department of
Energy. I retired effective January 3, 2006, after being exiled
from the DOE nuclear security community for more than 5 years.
I accepted an early retirement and buyout from the Department
of Energy rather than being paid not to contribute to the
national security.
Until August 2000, I was the DOE Quality Assurance [QA]
Program Manager for Nuclear Security. My job was to manage a
team of experts that reviewed the security plans for DOE
nuclear weapons sites and to identify vulnerabilities before
they became national security threats. Our QA team oversaw the
security effectiveness for the entire nuclear weapons complex.
I utilized a team of world-class experts ranging in spectrum
from nuclear engineers to U.S. Army Special Forces.
My primary duty was to devise ``adversary'' scenarios and
manage force-on-force tests that pitted mock terrorists against
the nuclear weapons protective forces. During these tests,
there were numerous artificial limits placed on us in terms of
conducting the tests. We were not allowed to surprise the
defenders. We had to schedule the tests in advance. We had to
follow speed limits. We had to follow the OSHA regulations. At
many facilities, we were not even allowed to climb the fences.
We had to administratively progress through the fences.
Despite all of this, the mock terrorists would win more
than 50 percent of the performance tests that we conducted.
Even the so-called wins were suspect. In the tests where the
protective forces prevailed, many of the tests resulted in 50
percent of greater casualties for the defending forces.
Additionally, in many instances the defending forces, in order
to achieve victory, would slaughter hundreds of evacuating
employees from the DOE facilities in an attempt to be sure and
eliminate the terrorists.
The reason for this abysmal record was ingrained
bureaucratic negligence to a terrifying degree. Four years
after September 11th, plans to fight terrorists attacking
nuclear facilities are still largely predicated on catching the
terrorists as they escape. Very little attention has been paid
to dealing with terrorists that are suicidal and plan to make
entry into the facility, stay in the facility, create a nuclear
detonation, and are not interested in escaping.
Some of the facilities refused to change their security
plans that post guards so far away from the danger zones that
terrorists would have time to enter and leave before even the
fastest responders would arrive. This has been demonstrated in
performance tests over and over again. This is inexcusable. On
September 11th, the United States lost thousands of lives. In a
successful terrorist attack on a nuclear weapons facility,
there would likely be a loss of lives in terms of hundreds of
thousands of people, much greater in terms of the consequences.
My testimony is perhaps more relevant today because I
illustrate a long-term pattern of the DOE culture. First, deny
there is a problem. Second, refuse to fix the problem. And,
third, if the first or the second option does not work, get rid
of the messenger, get rid of the employee, get rid of the
manager that is identifying the issues. DOE has done this. It
has been documented in report after report after report.
Five years ago, DOE management effectively ended my career
as a nuclear security professional by removing my security
clearance and transferred me to unclassified duties. In
retaliation for sending an unclassified IG report to the media,
DOE stripped me of my security clearance. It just so happened
that the unclassified IG report validated allegations that DOE
managers were forcing people responsible for conducting routine
annual security inspections to improve the ratings from less
than satisfactory to satisfactory in an attempt to make sure
that the system looked better than it actually was.
The agency's primary rationale for taking my clearance was
the fact that I had made an unauthorized disclosure. The U.S.
Office of Special Counsel determined that all of the
retaliatory actions taken by DOE against me were illegal under
the Whistleblower Protection Act [WPA]. As a result of that,
the Office of Special Counsel ordered the Secretary of Energy
to conduct an investigation of all the allegations that I had
put forward concerning the problems. However, the Office of
Special Counsel and the Whistleblower Protection Act
protections for me only went so far as to restore a 2-week
employment suspension that I had sustained. It did not have the
ability or the jurisdiction to deal with the loss of my
security clearance.
The impotence of the Office of Special Counsel was further
demonstrated just 2 weeks ago when OSC tacitly accepted DOE's
investigative report, which officially insisted that all of the
problems that I identified had been fixed, despite the fact
that there were at least a dozen reports--some by the DOE IG,
some by the Government Accountability Office, and some by
internal special blue-ribbon panels that had been commissioned
by the Department of Energy--that said exactly the opposite.
The chilling effect of DOE's unlawful retaliatory actions
taken against me has been highly effective. No one at this
point in the Department of Energy, after seeing what had
happened to me, would be willing to come forward under similar
circumstances. I am hopeful that sharing my experiences with
Congress will help to move this body to strengthen the
protection for individuals who blow the whistle on sensitive
security issues and in turn create an environment in which
vulnerabilities are addressed rapidly and appropriately.
Thank you very much.
[The prepared statement of Mr. Levernier follows:]
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Mr. Shays. Thank you, Mr. Levernier.
We have Mr. Weldon, who really, given that he is not a
member of this subcommittee, would come last. However, what I
am going to do is I am going to exchange my time with him and
give him my time, and then I will take his time at the end.
Mr. Weldon. Mr. Chairman, I want to thank you again, and I
want to thank----
Mr. Shays. And let me state for all Members, we are going
to have 10 minutes so we can get into the issues.
Mr. Weldon. I want to thank Mr. Waxman and Mr. Kucinich and
the rest of the subcommittee members. I am well aware of their
efforts, and I could not think of a more important hearing that
could be held by this subcommittee.
This is my 20th year in Congress, and I have served with
both Republican and Democrat administrations. If we do not fix
the problem of people who have stories to tell that are
important for our security, who simply want to tell the truth,
then we are sending a signal to every other employee of the
Federal Government not to speak up. I am not talking about
giving away State secrets or doing things maliciously. I am
talking about problems that we need to understand as elected
officials and as agencies to deal with to improve our ability
to respond to concerns.
Now, my focus has been in armed services and homeland
security. I serve as vice chairman of both committees, and the
people that I mentioned today, Mr. Chairman, each have a story
in their own right, and I do not have time to go into them all.
I would ask your staff to look at them all. But all of them
over the past 20 years have one common thing that has occurred
to them: Their lives have been ruined. In some cases, they have
been caused to go bankrupt. In other words, they have destroyed
their professional stature and credibility. Some have gotten
out because they have taken the signal: It is time for you to
leave because, as with Dr. Gordon Oehler, who was the CIA Non-
Proliferation Director, when he told us that we had the same
intelligence that Israel had, Iran was going to build the
Shahab-III missile system with the help of Russia, he made the
mistake of telling us the truth. As a result, he was railroaded
out of his job, and today we all know Iran has the Shahab-III
missile system. But because Gordon Oehler simply told us and
confirmed what Benjamin Netanyahu of Israel was saying at the
time, he paid the price.
Now, as a member who oversees defense issues, it really
offends me that our military people that I deal with--and I
don't know the details of these other cases--would have their
careers ruined because they simply want to tell the truth to
help us understand problems in the services. And yet that is
what has occurred and, unfortunately, what continues to occur.
If we allow this to go unchecked, we send a signal to
everyone who wears the uniform, and our military personnel take
their oath seriously when they salute to protect and uphold the
laws of the country and their duty and honor and country
seriously. And when they see us not respond when they tell the
truth, that sends a signal to everybody else: Don't do that
because you will suffer the same fate as, in this case, Tony
Shaffer.
Mr. Chairman, I want to go through some examples of the
outrageous actions of the Defense Intelligence Agency with Mr.
Shaffer, so, Mr. Shaffer, would you answer some questions for
me? In your file, have you received letters of commendation
from a number of DIA Directors? Please name them for me.
Colonel Shaffer. Sir, over my 10 years at DIA, I received
from Director of DIA Lieutenant General Pat Hughes, Vice
Admiral Tom Wilson, and several of their subordinate officers
to include compliments for my three briefings to the Director
of Central Intelligence George Tenet, which I think everybody
might note it is unusual for a junior field officer to brief
the Director of Central Intelligence on his personal--on the
operations he is running.
Mr. Weldon. Lieutenant Colonel Shaffer, are you not also
the recipient of the Bronze Star?
Colonel Shaffer. Yes, sir. I received that from my first
deployment to Afghanistan in support of both Joint Task Force
180 and Joint Task Force----
Mr. Weldon. And how long have you served in the military as
an intelligence officer?
Colonel Shaffer. As an intelligence officer, approximately
22 years, total about 24 years.
Mr. Weldon. Without going into detail, you were embedded in
Afghanistan. Tell us what you can in the unclassified setting
of your role there.
Colonel Shaffer. The setting, sir, the environment?
Mr. Weldon. What were you doing there?
Colonel Shaffer. I was overseeing all of DIA's human
intelligence collection operations on the ground going on in
Afghanistan during the period I was there.
Mr. Weldon. You were undercover, under an assumed name?
Colonel Shaffer. That is correct, sir.
Mr. Weldon. But you had been involved with this program you
called Able Danger, correct?
Colonel Shaffer. That is correct.
Mr. Weldon. And that was authorized by the chief of the
General's staff, General Shelton?
Colonel Shaffer. Yes, sir. The chairman of the Joint Chiefs
authorized it, yes, sir.
Mr. Weldon. And it was carried out by the Commander of
Special Forces, General Schoomaker.
Colonel Shaffer. Yes, sir.
Mr. Weldon. In the 1999-2000 timeframe.
Colonel Shaffer. That is the beginning of it, yes.
Mr. Weldon. What was the purpose of Able Danger?
Colonel Shaffer. As I said in my testimony earlier, sir, it
was to first detect, fix by figuring out where they are all
located, and then go after, using offensive methodology, the
structure of al Qaeda--not bin Laden himself, but the
structure, the al Qaeda mechanisms, cells, etc.
Mr. Weldon. Who was the commander on the scene of Able
Danger, and what was his name?
Colonel Shaffer. Sir, General Peter Schoomaker was
Commander of Special Operations Command.
Mr. Weldon. Under him?
Colonel Shaffer. Below him was his J3, General--oh,
goodness.
Mr. Weldon. Who was the day-to-day commander, Navy
Intelligence?
Colonel Shaffer. Oh, the day-to-day oversight of Able
Danger was conducted by Captain Scott Philpot. He ran Able
Danger day to day.
Mr. Weldon. An Annapolis grad?
Colonel Shaffer. Yes, sir.
Mr. Weldon. Still in the Navy?
Colonel Shaffer. Yes, sir.
Mr. Weldon. About ready to take command of one of our
destroyers?
Colonel Shaffer. The LaSalle, yes, sir.
Mr. Weldon. The LaSalle. In a month or so?
Colonel Shaffer. Yes, sir.
Mr. Weldon. And he will be a witness tomorrow, but he is
testifying in a closed session because he also has concerns.
What did you find out in your work looking at al Qaeda in
January 2000?
Colonel Shaffer. Well, sir, in January 2000, I took a chart
that Special Operations Command requested from the Land
Information Warfare Activity, which linked together the global
al Qaeda structure. Within that chart, I observed, and others
subsequent to me did observe as well, Atta, one of the primary
hijackers of the September 11th attack. It was that chart which
was the basis for the beginning of work of Special Operations
Command to look at the global al Qaeda infrastructure.
Mr. Weldon. Are you aware there are at least seven other
people who testified under oath that they also identified
Mohamed Atta----
Colonel Shaffer. Yes, sir, I am aware of----
Mr. Weldon [continuing]. Both by name and by face?
Colonel Shaffer. I am aware of that fact, yes, sir.
Mr. Weldon. In September 2000, what did you do because you
had been working with FBI on some other top secret programs?
Colonel Shaffer. I was actually requested by the FBI to
conduct a parallel operation which would have assisted them in
going after a European-based terrorist group, which they have
since then eradicated. I will not go into it here.
We attempted, because of my relationship with the FBI
special agents on that project, to broker a transfer of
information relating to the Able Danger project from Special
Operations Command to WFO, Washington Field Office of the FBI
here in Washington.
Mr. Weldon. How many times?
Colonel Shaffer. By my count, three--twice by my deputy,
once by me.
Mr. Weldon. Were the meetings all set up by the FBI?
Colonel Shaffer. They were set up by the FBI with the WFO
office, which oversees the bin Laden investigation.
Mr. Weldon. Did those meetings take place?
Colonel Shaffer. No, they did not.
Mr. Weldon. Why not?
Colonel Shaffer. My understanding is they were canceled by
the Special Operations Command legal advisors to the Command.
Mr. Weldon. So we had information about the Brooklyn cell
of al Qaeda with Mohamed Atta, and we could not transfer it to
the FBI.
Colonel Shaffer. That's correct.
Mr. Weldon. What has Louis Freeh recently said about that
information?
Colonel Shaffer. My recollection of his articles in the
open press is that it is his belief that had we, the Able
Danger team, been able to provide that information regarding
Atta and the other members, ostensible members of the Brooklyn
cell, he may well have been able to use the FBI to prevent the
September 11th hijackings.
Mr. Weldon. Now, General Shelton has come out and publicly
said in a recent article that he actually authorized the
creation of Able Danger. Is that correct?
Colonel Shaffer. December. Yes, sir, he did.
Mr. Weldon. Now, we all--at least I did--supported the
creation of the 9/11 Commission. The 9/11 Commission was
supposed to look at the details leading up to September 11th.
You were on duty in Afghanistan October 2003. Tell us about who
went through Bagram that you were made aware of.
Colonel Shaffer. I was made aware of Dr. Philip Zelikow,
the staff director of the 9/11 Commission, and three staffers
showing up. They put out word. They requested anyone come
forward who had information regarding any pre-September 11th
intelligence.
Mr. Weldon. And you met with him?
Colonel Shaffer. I was authorized by my chain of command,
my Army chain of command, to meet with him and provide them a
secret-level briefing on a project that we now know as Able
Danger.
Mr. Weldon. But you made a mistake. What was your mistake?
Colonel Shaffer. Well, I----
Mr. Weldon. You didn't call the folks where?
Colonel Shaffer. I notified DIA upon my return to the
United States of my discussion of Able Danger and the related
intelligence failures.
Mr. Weldon. Were they unhappy?
Colonel Shaffer. Well, they did not say it outright, but
the way they responded to me after I told them about the
disclosure and the fact that the 9/11 Commission may recall me
to testify more was not pleasant.
Mr. Weldon. So when you got back, you tried to meet with
the 9/11 Commissioners because you met with Zelikow, and what
did they say?
Colonel Shaffer. I contacted them twice in January 2004.
The first time they said, ``We remember you. We will ask you to
come in. Stand by.'' I did not hear anything back from them for
a week. I call again, and the second time they said, ``We do
not need you to come in now. We found all the information we
need on Able Danger.''
Mr. Weldon. Now, Colonel Shaffer, an article appeared last
week. Dr. Zelikow was interviewed, and he was supported in his
statement by Senator Bob Kerrey, who was a member of the 9/11
Commission. Have you read that article?
Colonel Shaffer. I have read it, sir, yes.
Mr. Weldon. In there Dr. Zelikow said he never met you.
What do you say to that? You are under oath right now.
Colonel Shaffer. Yes, sir. I did meet with him. I
specifically have a business card he provided me.
Mr. Weldon. Do you have the business card with you?
Colonel Shaffer. I do not have it on me this moment.
Mr. Weldon. You will present that for evidence tomorrow
before the Armed Services Committee?
Colonel Shaffer. Yes, sir, I will.
Mr. Weldon. Who gave you that business card?
Colonel Shaffer. Dr. Phillip Zelikow in a private meeting
in Bagram, where he approached me after my briefing on Able
Danger and said, ``What you have said today is very important.
We need to continue this dialog upon your return to the United
States. Please call me.''
Mr. Weldon. Yet Dr. Zelikow is now saying publicly he never
met you.
Colonel Shaffer. I find it hard to believe, sir, that he
could not remember meeting me.
Mr. Weldon. When you came back to Washington, your career
started to take a turn for the worse. Am I correct?
Colonel Shaffer. Yes, sir. The allegations which we have
talked about today were brought up against me.
Mr. Weldon. They pulled your security clearance?
Colonel Shaffer. Yes, sir.
Mr. Weldon. Mr. Chairman, the lengths they went to with
this man are unbelievable. Let's talk about the things besides
the charge to--are you aware of what was told by DOD officials,
DIA officials, to Wolf Blitzer and Brian Bennett, both top-
rated national reporters? What did they say about you?
Colonel Shaffer. Mr. Blitzer, during my stint on his show,
``The Situation Room,'' actually told me that DIA or someone in
DOD had put out information regarding me having an affair with
someone on your staff and related allegations that somehow I
was not being honest in presenting the information regarding
the September 11th----
Mr. Weldon. Have you ever had an affair with anyone from my
staff, male or female?
Colonel Shaffer. No, sir, not remotely anytime.
Mr. Weldon. But that was what DIA said.
Colonel Shaffer. They were alluding to DIA putting this
out, yes, sir.
Mr. Weldon. And you also got a letter from DIA in September
taking away permanently your security clearance, correct?
Colonel Shaffer. That actually came in November after we
appealed, but yes, sir, they did.
Mr. Weldon. And they said you would never have access to
any classified documentation again.
Colonel Shaffer. That was the intent, to remove both my top
secret and collateral secret clearance, which means I would
have no access.
Mr. Weldon. Did you receive a box from DIA several weeks
later.
Colonel Shaffer. I received a total of seven boxes from
DIA.
Mr. Weldon. What was in those boxes?
Colonel Shaffer. Not only was there a GPS, Government-owned
$400 GPS and related software, there was a total of five
classified documents which they had not removed.
Mr. Weldon. So DIA, after telling you your security
clearance was removed, sent you five classified documents.
Colonel Shaffer. According to my understanding of the law,
it is a violation by sending someone classified information via
the mail who is not authorized to receive it.
Mr. Weldon. Was there also mail in there from other
employees of DIA?
Colonel Shaffer. There was a year's worth of mail from some
unknown employee to include bank statements and a check.
Mr. Weldon. Was there Federal property in there that did
not belong to you that they sent you?
Colonel Shaffer. As I mentioned, there was a GPS valued at
over $400, and my estimate was there were about $600 worth of
Government material, which is well in advance of the $250 I was
accused of wrongly acquiring.
Mr. Weldon. Was there not also a bag of pens, U.S.
Government pens in there?
Colonel Shaffer. There was a bag of 20 U.S. Government
pens.
Mr. Weldon. And what had they accused of publicly that you
referred to earlier of having taken--and I believe it was when
your father worked for one of our----
Colonel Shaffer. The U.S. Embassy. Yes, sir, I----
Mr. Weldon. Your father worked for the U.S. Embassy. And
what did DIA go to the length to accuse you of?
Colonel Shaffer. Of taking Government pens while I was 13
years old to use in high school and give them to my friends.
Mr. Weldon. They accused this man of taking Government pens
when he was 13 years old as a part of their official effort to
destroy him, and then they sent him a bag with 20 pens in a box
after they removed his security clearance.
Colonel Shaffer. Skilcraft pens clearly marked as U.S.
Government pens.
Mr. Weldon. Mr. Chairman, these agencies are out of
control. These things would be humorous, except you are talking
about a man's life.
How close were you to having the benefits taken away from
you and your kids?
Colonel Shaffer. Within days, sir. As a matter of fact, we
thought the paperwork had already moved forward before Under
Secretary of Defense England was able to intercede.
Mr. Weldon. Because you did what? What was your crime?
Colonel Shaffer. Sir, as far as I can tell so far, based on
the fact we have been able to refute the allegations against
me, it is because I spoke up and tried to tell the truth
regarding pre-September 11th intelligence.
Mr. Weldon. You told the truth.
Colonel Shaffer. Yes, sir.
Mr. Weldon. Mr. Chairman, if we don't----
Mr. Shays. With that, we will end on that.
Mr. Weldon. If we don't take action, we are all in trouble.
Colonel Shaffer. Thank you, sir.
Mr. Shays. I thank Mr. Weldon for his questions. Thank you
for your responses.
Colonel Shaffer. Thank you, sir.
Mr. Shays. We gave Mr. Weldon an extra 2 minutes, so he had
12, and Mr. Waxman, you have 12 minutes.
Mr. Waxman. Thank you very much, Mr. Chairman, for your
fairness. I do not know if I will take the full 12, but I do
want to pursue some questions, and I want to start with
Sergeant Provance.
I have gone through your detailed written statement. Your
oral statement was fairly brief. And the abuses you reported
are really shocking to me. It is also very troubling that the
Pentagon's investigation seemed designed to ignore the evidence
that could point to the higher-ups.
Let me first ask you about some of the abuses you tried to
report. We have heard accounts of detainees being humiliated
and forced to wear women's underwear. We have also seen the
horrible pictures of detainees stripped naked, wearing hoods,
and chained in barbaric positions. This was all at Abu Ghraib.
Can you tell us whether interrogators you knew used these
techniques?
Specialist Provance. Yes, sir, every interrogator I spoke
to would confirm these kinds of things. My job as a system
administrator at the prison allowed me to speak to various,
interrogators and analysts at their work stations,
troubleshooting their computers or, you know, setting their
computers up. From day one it was a very intriguing operation,
and I wanted to know what it was like to be an interrogator and
exactly what they were doing.
Mr. Waxman. How common were these practices at Abu Ghraib?
Specialist Provance. As far as nakedness and the use of
dogs and using loud music, starvation, and what-not, those were
considered normal. These things were said to me as something
they did commonly.
Mr. Waxman. I noticed in your written testimony there were
a lot of names of officials whose names were redacted. Were
these names of officials who were involved in these practices?
And who blacked out these names?
Specialist Provance. I would have to take that statement by
statement, sir, but the Department of Defense had those
redacted sir.
Mr. Waxman. OK. I have an article here dated May 20, 2004,
from the Sacramento Bee. It quotes General Richard Sanchez
denying that he authorized sexual abuse, sleep deprivation,
dietary manipulation, the use of dogs, or stress positions. Are
you saying that these tactics were authorized?
Specialist Provance. General Sanchez came to the prison on
different occasions, and at the prison these very measures
themselves were put on a sign that was as big as a billboard
inside the Joint Interrogation and Debriefing Center [JIDC], as
it is referred to. And if anybody of any importance came to the
prison, the one place they would come is the JIDC, which was a
singular building and not, you know, sprawling over the prison.
I know he came to this facility. So if he saw this billboard,
which actually clearly states that they would need his approval
if used, if he did not approve of them or if he did not even
see them as something to ever approve, I think he would have
had a problem with it within, you know, that very minute and
had this board removed.
Mr. Waxman. How big was this billboard?
Specialist Provance. It was bigger than this television,
sir.
Mr. Waxman. And on the billboard it said?
Specialist Provance. Well, on the left side it had the
traditional names of approaches for interrogators that are
considered textbook. Then to the right side you had the extra
measures, which had to do with the use of dogs and dietary and
environmental manipulation.
Mr. Waxman. So it was all written out very clearly on a
billboard at the facility?
Specialist Provance. Yes, sir. And not only that, but just
as when Red Cross came to visit and they had seen a lot of the
things, such as the nakedness, that they clearly had
disapproval of, I don't see them hiding these things from him
more than they did for the Red Cross.
Mr. Waxman. Let me ask you about another abuse. We have
press reports about interrogators who used the children of
detainees to break the will of their parents. Did you receive
any information about cases like this?
Specialist Provance. Yes, sir, I did. The one interrogation
I was a part of involved a 16-year-old son of a general whom
they said had already been broken.
Mr. Waxman. An Iraqi general?
Specialist Provance. Yes, sir. I was the analyst and
security for this interrogation, and just based on the
questions alone, as well as his answers to these questions, he
had nothing to do with anything directed against, you know,
American soldiers. So he was not a suspect in any way, shape,
or form. And the interrogation itself had to do with just
asking him things he had heard. You know, so the only crime, as
it were, that he may have committed was just being the son of
this general, but as I----
Mr. Waxman. What did they do with his son?
Specialist Provance. Well, as I came to find out, sir,
originally we were going to interrogate the general, but we
were told he had already been broken. And the interrogator was
told he had been broken by using his son, you know, by
splashing cold water on him, and it was very cold at the time
itself, and driving him around in the back of Humvee, placing
mud upon him, and then having his father thinking that he is
going to see his son, you know, was allowed to see him in the
state, and then that is what broke the general.
Mr. Waxman. Had the child done anything wrong?
Specialist Provance. No, sir. No, sir. And actually tried
to plead his case because he was in the general population
where the MPs had already told me the detainees were raping
each other and----
Mr. Waxman. Was there any legitimate reason to keep him in
prison?
Specialist Provance. No, sir.
Mr. Waxman. Do you think this practice was repeated with
other children?
Specialist Provance. I don't see why it would not have
been, sir. It wasn't something they were trying to keep quiet
about or even said to keep secret.
Mr. Waxman. Were people bragging about using children to
break the parents?
Specialist Provance. No, sir.
Mr. Waxman. They were not bragging about it, but they
commented that they had used children?
Specialist Provance. Yes, it was just given as an
explanation.
Mr. Waxman. Your testimony has some other examples. A
prisoner forced to use an MRE bag as a loincloth, guards having
late-night parties with Robitussin and Vivarin pills, and
female interrogators who got a thrill out of humiliating male
prisoners.
What is amazing is that it seems like everybody knew about
it. Nobody was surprised when those pictures came out. Is that
what you are saying, that people seemed to know about these
practices?
Specialist Provance. Yes, sir.
Mr. Waxman. Let me turn to your attempts to report these
abuses through your chain of command. You were interviewed on
May 1, 2004, by General Fay. In your testimony, you say he did
not want to hear about abuses by military intelligence. What
happened when you tried to tell him about the involvement of
intelligence officials?
Specialist Provance. After basically forcing my testimony
on him that had nothing to do with his prior questioning, he
pulled out my original CID statement from January 2004 and
quoted me saying where I was glad that there was an
investigation and saying, you know, because of what was going
on was shameful at the prison. And after reading this back to
me, he then says he is going to recommend administrative action
against me. So, you know, the feeling I got--I mean, his whole
mood and demeanor had changed at this time and----
Mr. Waxman. He was asking you questions about something
else, but you volunteered this information because you thought
he ought to know about it. Is that right?
Specialist Provance. Yes. He had only asked about the MPs
and the photographs and anything that I had explicitly seen.
But I tried to volunteer information of, you know, things that
I had heard from not just rumor but from the participants
themselves. And he clearly----
Mr. Waxman. So he was doing an investigation about the
reports about Abu Ghraib?
Specialist Provance. Yes.
Mr. Waxman. Reports about prisoner abuse, but when you
talked to him about intelligence officials being involved, he
did not--he reacted in a very negative way.
Specialist Provance. Yes.
Mr. Waxman. Did he ask questions to find out more?
Specialist Provance. No, he didn't. He just said, ``Tell me
what you''--you know, ``tell me what you have heard.'' And so I
told him, and his assistant documented it. But he didn't ask me
anything on, you know, what I had said.
Mr. Waxman. What was your impression? Did you think he was
trying to keep you quiet?
Specialist Provance. Yes.
Mr. Waxman. So when you were contacted by the press and
asked for your views on the investigation, you went ahead and
talked to them. Was the interview with General Fay the tipping
point for you? Did it change things in your view?
Specialist Provance. Yes, it did. By that time I had
already tried to tell them what was going on, and I got the
impression that they didn't--they weren't going to act on that.
They weren't going to do with that, and that anything that I
had to say was just going to, you know, be avoided or ignored.
And the only persons at that time I felt really wanted to do
anything about it was the media. And they had already been
wanting to talk to me for quite a while, and that was the only
avenue I felt I had.
Mr. Waxman. You did not see any use in talking to General
Fay or other people in the military because they were not
receptive to the information? Is that what you are telling us?
Specialist Provance. Yes, sir.
Mr. Waxman. Your security clearance was suspended. Was it
suspended for disclosing classified information, or was it
suspended for talking to the press about unclassified
information?
Specialist Provance. It was suspended for disobeying the
order to not speak about Abu Ghraib to anybody.
Mr. Waxman. Did you reveal any classified information?
Specialist Provance. No, sir.
Mr. Waxman. OK. Your commanders issued a written order
directing you not to talk to the press about what you saw at
Abu Ghraib, regardless of whether it was classified or not. But
in your statement you say that you could not find anybody else
who got an order like that. Why were you the only one who got a
written gag order?
Specialist Provance. Because I think everything I had to
say was contrary to what the prosecution was trying to get
everyone to--you know, basically the theory is that this was
the work of a few bad apples, it is only these MPs and these
photographs on this night when these photographs were taken.
And, you know, I would say it wasn't just these few people,
that it was the whole operation.
Mr. Waxman. Do you know of anybody else who got a gag
order?
Specialist Provance. No, sir.
Mr. Waxman. Let me go back to that article I talked about
in the Sacramento Bee from 2004. The story quotes you as
reporting abuses, but it also quotes General Sanchez denying
that he authorized these tactics. Clearly, General Sanchez did
not receive a gag order like yours. So the bottom line is you
can talk about an ongoing investigation as long as you deny
wrongdoing, deny that abuses take place, deny that the abuses
were directed by higher-ups; but if you take the opposite view,
you are banned for speaking out. Is that a conclusion that one
could reach? Because he did not get a gag order for his reports
to the press.
Specialist Provance. Yes, sir.
Mr. Waxman. I would like to request the Chair's indulgence
for just 30 seconds more to close out this line of questions.
Sergeant Provance, you flew all the way from Europe to be here
today, and I have a short video clip I would like to play to
get a reaction. This is from a speech by General Pace, the
chairman of the Joint Chiefs of Staff, on December 1, 2005. I
wonder if we can roll the clip.
[Videotape played.]
Mr. Waxman. So that clip pretty much illustrated that the
General, head of the Joint Chiefs of Staff, is urging you and
others in the military and come back home and tell people what
is really going on Iraq, but you were singled out and
specifically ordered not to do that. So I would like to ask
you: In your personal opinion, do you think the military has
adequately investigated the abuses at Abu Ghraib?
Specialist Provance. No, sir.
Mr. Waxman. Do you think there was a coverup?
Specialist Provance. Yes, sir.
Mr. Waxman. Mr. Chairman, I just want to make a request of
you. I know our staffs spoke about this before the hearing, so
I wonder if you would be willing to join me in a document
request related to Sergeant Provance's testimony today. In my
opinion, there are two areas the committee should investigate
further: First, I think we should examine some of the
substantive reports Sergeant Provance made particularly
regarding the extent to which innocent children would be used
as part of the interrogation process. And, second, I think it
makes sense to investigate the circumstances surrounding
Sergeant's Provance's gag order and disciplinary action. I
would like to ask you if you would join with me in making a
document request on these issues.
Mr. Shays. First, I would be delighted to work with you on
this issue and to make whatever requests we need to.
I just want to say to you, Specialist Provance, it takes a
tremendous amount of courage with your rank to tell a General
what they may not want to hear, and people like you will help
move our country in the right direction. And so this full
committee thanks you for what you have done.
If I could just ask this question, because I want to make
sure the record is clear so we do not have pushback from the
military. When you were meeting with General Fay, you were
telling him things he did not ask you. Was he at all
inquisitive about the terrible things you were seeing and
wanting to learn so that he could hold those accountable who
were doing it and to be aggressive in an investigation? That is
kind of the thing that I want to make sure we are clear on
before you leave?
Specialist Provance. Are you asking if he was asking me
questions about what I was volunteering?
Mr. Shays. No. I do not want to know about what you were
volunteering. I mean, that is important, too. What I want to
know is you were telling him things that you had seen that he
did not seem to know about. Did he want to know more so that he
would be better educated about the things that you knew just in
the course of your being there?
Specialist Provance. No, sir.
Mr. Shays. OK.
Specialist Provance. The only feedback I got was
administrative action.
Mr. Shays. So he seemed more concerned about what you might
tell people, not the information that you had that might help
him understand the abuses that went on in Abu Ghraib. Is that
correct?
Specialist Provance. Yes, sir.
Mr. Waxman. Mr. Chairman, I just want to thank Sergeant
Provance for his testimony. It takes a great deal of courage,
but that is true of all of the witnesses that are here today,
and they speak for themselves, but for others as well. And when
they do that, when they are whistleblowers, when they come
forward and speak truth to power, we ought to be protecting
them, especially when they are being discriminated against and
losing their jobs, in effect, their ability to get classified
information, which is tantamount to reducing them in their
stature and ability to continue in their careers.
Thank you very much for the extra time.
Mr. Shays. Thank you.
The Chair at this time would recognize Mr. Duncan.
Mr. Duncan. Well, thank you, Mr. Chairman, and thank you
for once again calling a hearing on a very, very important
topic.
Specialist Provance, you said in your testimony that you
saw superiors scapegoating young soldiers and also trying to
misdirect attention or direct attention away from what was
really going on. I just want to get clear on that. Do you mean
that superiors, even after some of these abuses came out, they
were still trying to deflect attention away or keep doing what
they were doing? Second, what to your mind was the worst
example of scapegoating of a young soldier. I am not talking
about what you thought were the worst abuses of the prisoners,
because we have had a lot of publicity about that, but I am
more interested in what in your mind what the worst example
that you can think of of a scapegoating of a young soldier
specifically.
Specialist Provance. Going to the first part of the
question, throughout this whole order, the only people that
have been charged or convicted are young soldiers. My own
brigade commander testified as being at the scene of a murder
saying, ``I am not going to go down for this alone,'' and all
he got was an Article 15. An MP stepped on a detainee's
fingers, and he spent time in prison. Maybe that even answers
both parts of your question, sir.
Mr. Duncan. OK. Well, did you see some of these abuses
continue even after there had been big worldwide publicity
about what was going on?
Specialist Provance. I was already redeployed back to
Germany by the time the scandal had come out, sir.
Mr. Duncan. Based on what you have heard since that time,
do you think it is fair or accurate to say, as many people
have, that we treat our prisoners better than probably any
other country would?
Specialist Provance. I wouldn't be educated enough to
answer that, sir.
Mr. Duncan. You wouldn't know that. All right. Thank you
very much.
Colonel Shaffer, in another subcommittee of this committee,
about a year and a half ago, we heard David Walker, who was
then the Inspector General of the Defense Department--he is now
the head of the GAO--he testified that the Pentagon or the
military had lost $9 billion over in Iraq, just lost it,
couldn't account for it at all, and that another $35 billion
had been misspent. That is $44 billion, with a B.
Colonel Shaffer. Yes, sir.
Mr. Duncan. And they came after you and did all this to you
for a little $250. Is that correct?
Colonel Shaffer. That is accurate, sir, yes. And I believe
that in the end, when the DOD IG completed the investigation,
it will be found that I was due that money all along.
Mr. Duncan. Have you known of other people in your 24 years
in the military that have turned in similar expense accounts or
even inflated expense accounts, and do you think it would be an
accurate statement to stay that if they wanted to, they could
come after almost anybody in the military, if they really
wanted to, for similar type of trumped-up charges?
Colonel Shaffer. Sir, if I can answer that in general, yes,
there have been stories amongst my colleagues of the fact that
if they really want to come after you, they are going to find
something, something somewhere. And since I had just completed
a command of an operating base, which is essentially a Colonel-
level responsibility--I had millions of dollars of equipment
that I was responsible for--a lot of things can go wrong. I was
truly shocked when they came after me for $67 of phone charges,
which I would have gladly paid. But the answer is, yes, they
will look at vouchers, they will look at activities. One of the
big things DIA does is go after people for timecard fraud. They
will try to find a way to trick you into putting in the wrong
time, and then come after you on that very issue.
Mr. Duncan. All right. Thank you.
Mr. German, I had an uncle who many years ago spent a few
years as an FBI agent before he became a lawyer and a judge,
and he always had tremendous respect for the FBI, as did
everybody in our family.
Mr. German. As do I.
Mr. Duncan. But about 3 years ago or so, in this committee
we we had a hearing or hearings about the FBI in Boston putting
a man who had four small children into prison for more than 30
years for a murder that they knew he did not commit because
they did not want to blow the cover of one of their informants.
After I heard all that, which I thought was one of the most
horrible abuses I had ever heard of, I became convinced that a
Federal bureaucracy can justify or rationalize almost anything.
The man did finally get out, but it is just horrible to think
of.
You say in your testimony that you had your superiors,
high-up FBI officials, who backdated and falsified and
materially altered your records?
Mr. German. Those are actually the findings of the
Department of Justice Inspector General, so it is not just my
opinion. That is what they found.
Mr. Duncan. Those are really fancier ways, I guess, of
saying that they produced lies.
Mr. German. They produced false documents and----
Mr. Duncan. About you.
Mr. German. And also materially altered, literally took
Wite-Out and altered FBI records to thwart the internal
investigation.
Mr. Duncan. Is it fair to say that shocked you?
Mr. German. Absolutely it shocked me. Like I said, in 14
years in the FBI I had never come across anything remotely
similar to this. And even the original Title III violation was
something that, you know, I thought as soon as I reported would
be immediately dealt with. And when the supervisor suggested
that we were just going to pretend it did not happen, I was
shocked.
Mr. Duncan. Has anything been done to any of these people?
Mr. German. They have been promoted, some of them.
Mr. Duncan. They have been promoted?
Mr. German. Absolutely.
Mr. Duncan. Mr. Tice, when you were hired into the National
Security Agency, were you give any guidelines or instructions
or any encouragement about reporting waste or fraud or abuse?
Mr. Tice. Sir, there is a general policy at NSA that you
report waste, fraud, and abuse. As far as connecting it with
the Intelligence Community Whistleblower Protection Act or any
whistleblower protection, the answer is no.
Mr. Duncan. All right. Mr. Levernier, you have a quote from
a report in your testimony that says, ``At the birth of DOE,
the brilliant scientific breakthroughs of the nuclear weapons
laboratories came with a troubling record of security
administration. Twenty years later, virtually every one of its
original problems persists.'' That was a report issued in June
1999, which is 6\1/2\ years ago, closing in on 7 years.
What would you say about that report today? Would you say
it is still accurate, or would you say that a great deal of
improvement has occurred in that last 6\1/2\ to 7 years?
Mr. Levernier. In my opinion, the report is still accurate,
and more than just my opinion, the independent review that the
Department of Energy's National Nuclear Security Administration
commissioned, which was chaired by retired Admiral Mies, U.S.
Navy, came out and in its introduction comments referred to the
report that you are talking about, the 1999 President's Foreign
Intelligence Advisory Board Report, and said that not much had
changed from 1999 until May 2005, when the Mies report was
issued. So it is not only my opinion that very little changed,
but DOE's own internal independent review of the management
structure within the security programs in the Department had
the same conclusion.
Mr. Duncan. Well, I have a large number of people waiting
on me in my office right now, and they have been there for a
while. But I wanted to hear as much of your testimony as I
could, and I simply want to thank each of you for coming
forward with your testimony and for being witnesses here today.
Thank you very much.
Thank you, Mr. Chairman.
Mr. Shays. I thank the gentleman.
Mr. Kucinich.
Mr. Kucinich. Thank you very much, Mr. Chairman. I would
like to ask some questions of Mr. Tice.
Mr. Tice, there has been a lot of attention recently
focused on a classified NSA program to eavesdrop on American
citizens who call or receive calls from overseas. Many of the
people in this room would be familiar with a New York Times
story of December 15th that says in the first paragraph,
``Months after the September 11th attacks, President Bush
secretly authorized the National Security Agency to eavesdrop
on Americans and others inside the United States to search for
evidence of terrorist activity without the court-approved
warrants ordinarily required for domestic spying, according to
Government officials.'' And with unanimous consent, I ask to
submit this story for the record.
Mr. Shays. Without objection, so ordered.
Mr. Kucinich. Mr. Tice, are you familiar with that story?
Mr. Tice. I am, sir.
Mr. Kucinich. A story that ran on January 12th out of
mtv.com says, ``President Bush has defended his orders allowing
the NSA to eavesdrop on e-mails and phone conversations from
what he described as a small number of Americans with known
ties to al Qaeda without obtaining proper warrants.''
Now, everyone agrees that intercepting calls from Osama bin
Laden or other al Qaeda terrorists is a national security
priority. But outside the Bush administration, there is a great
concern that the NSA program violates the Foreign Intelligence
Surveillance Act. The President is here saying that this policy
of wiretapping without warrants affects a small number of
Americans.
Based on your understanding of the program, which now is a
matter of public record, would you say that statement by the
President of the United States that it only affects a small
number of Americans is true?
Mr. Tice. Congressman, I cannot specifically say how NSA
does its work or not. I could potentially do that in closed
session, but----
Mr. Kucinich. Did you say that the number of Americans who
might be subject to eavesdropping by the NSA could be in the
millions?
Mr. Tice. I said if a broad-brush approach was used in that
collection, then it very easily could be in the hundreds of
thousands, if not millions, yes, sir.
Mr. Kucinich. You have been mentioned as a source for the
New York Times article that revealed the existence of a secret
NSA program, but as I understand it, you didn't work on the
program. Is that correct?
Mr. Tice. No, sir, I did not work on the program
specifically.
Mr. Kucinich. In your discussions with the New York Times,
did you reveal any classified information?
Mr. Tice. No, I did not, sir.
Mr. Kucinich. What did you provide them with?
Mr. Tice. Technical information that would be possible to
gain from any communications specialist in the private sector.
Mr. Ku
