The Oath to Defend the Constitution vs. the Forced Pledge to Protect Government Secrecy

“Which of the applicable laws has priority?”

By Linda Lewis

oath In the debate on reducing the national debt, members of Congress have focused on two options--tax increases and entitlement cuts---both considered unhelpful to restarting a stalled economy.  Congress seemingly has forgotten that it has another option for reducing the debt: eliminating waste, fraud and corruption in government programs. Perhaps, Congress knows that the success of such a plan would correspond with the effectiveness of whistleblower protections—protections it has been reluctant to provide to the thousands of whistleblowers who hold security clearances.

Insiders are critical to identifying government waste, particularly in agencies, such as the Department of Homeland Security, where much of the information is classified and not available for public review.  But, insiders are vulnerable to retaliation from managers embarrassed by their disclosures. The Obama administration has been particularly aggressive toward whistleblowers, launching criminal prosecutions against several of them.

Most Americans would be surprised to know that thousands of federal workers with ordinary jobs--food safety, for example--are required to have security clearances even if they may never handle a classified document.  Agencies pay dearly for the necessary background investigations. But, they just can’t seem to pass up the opportunity to give themselves an end run around civil service laws. Steve Kohn, of the National Whistleblowers Center, writes:

A 1989 law was supposed to protect federal employees who expose fraud and misconduct from retaliation. But over the years, these protections have been completely undermined. One loophole gives the government the absolute right to strip employees of their security clearances and fire them, without judicial review. Another bars employees of the National Security Agency and the Central Intelligence Agency from any coverage under the law. And Congress has barred national security whistle-blowers who are fired for exposing wrongdoing from obtaining protection in federal court.

Knowing that they are vulnerable to retaliation, few federal employees are inclined to report wrongdoing.  Nevertheless, they are required to report wrongdoing.

Every employee takes an oath or affirmation, required by Article VI of the U.S. Constitution to “support the Constitution.” Since 1884, employees have taken this   expanded version of the oath, described in the U.S. Code (Title 5, Chapter 33).

I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

Incredibly, through court decisions and Congressional foot-dragging, civil servants tasked with defending the Constitution are forced to do so with an abridged set of Constitutional protections, particularly with regard to free speech and due process—essential elements for holding a government accountable.

Civilian federal employees also must adhere to the federal code of ethics (Executive Order 12674, as amended).  It states, in part:

Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.”

The code also directs that employees “shall protect and conserve Federal property and shall not use it for other than authorized activities.”  This is important because agencies tend to treat classified information as government property, although it’s more accurate to say that a representative government holds information in trust for its citizens.

TopSecSometimes, classified information contains evidence of waste, fraud or corruption, documents abuses of human rights, or it exposes negligent handling of national security.  In such cases, classifying the information was illegal. Executive Order 13526 forbids classifying information to hide violations of law, inefficiency, or administrative error or to avoid embarrassing officials.

An employee who encounters classified evidence of wrongdoing therefore is compelled to ask, “Which of the applicable laws has priority?”  Agencies provide little or no guidance to employees for dealing with the moral hazard dumped in their laps. Think of it as a ticking black box with protruding wires in several colors.  Does one pull the blue wire, the yellow or the red? Pull the wrong one and your career explodes.  [Read more...]