The utility of the post-9/11 “enhanced interrogation” program has been called into question in recent months. A recently-completed Senate Intelligence Committee report suggests the CIA knowingly lied about the effectiveness of the program to the White House, Congress and the American people.
The CIA also used unauthorized interrogation methods, relied on flawed legal opinions to defend the use of the techniques against domestic and international torture legislation, and yielded little to no useful intelligence, according to the report.
The scrutiny of the program extends to the people that helped to create and run it, such as Dr. James Elmer Mitchell, the former chief of psychology for the Air Forces’ Survival, Evasion, Resistance and Escape School. He was tapped by the CIA to help develop the “enhanced interrogation” program.
Mitchell’s involvement — including allegations that he personally waterboarded Khalid Sheikh Mohammed, despite the fact that Mitchell had no interrogating experience and no experience with al-Qaida, the Arabic language or radical Islam — has led to the CIA effectively denouncing his former affiliation with the group and the American Psychological Association filing an ethics complaint against him in Texas in 2010, which was ultimately dismissed.
In a recent interview with The Guardian, Mitchell discussed his role in the “enhanced interrogation” program in general terms, but he bemoaned his inability to tell his story in specific terms. Like all federal employees and contractors that work in sensitive or protected departments and bureaus, Mitchell is held under a nondisclosure agreement that prevents him from discussing state secrets and information protected under the Privacy Act for the rest of his life.
«I would be happy to tell my entire story,» Mitchell said. «But I have been told numerous times that if I violate the non-disclosure agreement there would be criminal and civil penalties. I am interested in having an active and honest debate, but only if the Justice Department and federal government release me from my agreement.»
While Mitchell is eager to defend the government’s actions, many others curtailed by nondisclosure agreements are frustrated by perceived injustices and unreported criminal acts in which the federal government allegedly engages. Despite assurances that whistleblower protections will be guaranteed by the federal government, a large and glaring loophole has all but negated such promises.
The federal government and whistleblower protection
The Whistleblower Act of 1989 was created to establish a legal framework in which federal employees can report agency misconduct without the agency being able to threaten retaliation against the employee. Additional protection has come from adjacent legislation, such as the Lloyd-La Follette Act, which grants employees the right to furnish information to Congress about an executive branch agency without interference.
The Ethics in Government Act, which created the Office of Independent Counsel, and the Civil Service Reform Act, which affords the federal worker a means to address whistleblower retaliation, also added to the whistleblower protection framework.
Combined, these laws are supposed to make it easy for government misdeeds to be addressed quickly.
Despite these assurances, though, most whistleblower cases end similarly to the case of Robert MacLean. In 2003, MacLean spoke up against the Transportation Security Administration’s plan to cut Federal Air Marshal coverage on long-distance passenger flights, despite the nation being under a terrorist alert at the time. While MacLean’s call to action won the praise of Congress, he was fired by the TSA three years later when the TSA ruled that the security-unlabeled directive had not been cleared for public release.
MacLean’s appeal is still being argued. On April 26, 2013, the U.S. Court of Appeals for the Federal Circuit overturned the Merit Systems Protection Board’s ruling that the Department of Homeland Security had the right to retroactively classify the directive “sensitive security information,” thereby justifying MacLean’s termination. U.S. Solicitor General Donald Verrilli, Jr., has since filed a writ of certiorari to the U.S. Supreme Court for the court to hear the appeal. A decision will not be made available until May 5.
A broken system
Despite the number of whistleblower laws currently on the books, court rulings and agency rule changes have made it virtually impossible for a federal employee to win a whistleblower case. For example, a Supreme Court decision found that the Whistleblower Protection Act does not apply when the employee’s disclosure is directly linked to the employee’s job. So, for example, if an environmental inspector learns that his reports for a specific industrial construction site are not being acted on, any attempt to disclose this information would not be protected under the federal whistleblower laws.
This has created a situation in which federal employees can be whistleblowers, but not about violations they directly witnessed on the job. According to a 2010 Government Accountability Project analysis, only three of the 203 whistleblower cases heard by the Court of Appeals for the Federal Circuit as of 2010 were decided for the petitioner. From 2000 to 2010, the Merit Systems Protection Board, which is charged with adjudicating whistleblower complaints, has ruled for the whistleblower only three times in 56 cases. Along with the non-disclosure agreements, this has fostered an environment in which employees must be blind to malpractices while on the job or face severe penalties.
Despite President Barack Obama’s assurances of reforms for the whistleblower protection system — including the appointment of a pro-consumer special counsel and the passage of an amendment to the Whistleblower Protection Act in 2012 that extended whistleblower protection to the intelligence community — it may take a while for the net effect of these changes to be felt.
In light of cases such that of CIA whistleblower Edward Snowden and Army document leaker Pvt. Chelsea Manning, there must also be a change in the way the government sees and handles whistleblowers.
«We’ve gone from pitch black night to sunrise, (but) the sun hasn’t come up yet,» said Tom Devine, legal director at the Government Accountability Project. «There’s got to be follow-through.»
A need to “tell the story”
A 2004 CIA Inspector General report alleged that Dr. Mitchell had possibly misrepresented his experience as an interrogator when he pitched the use of coercive techniques as a means toward getting actionable intelligence from detainees.
Mitchell feels that telling his story is important and that he is being pegged unfairly by the public’s opinion of him.
«The narrative that’s out there is, I walked up to the gate of the CIA, knocked on the door and said: ‘Let me in, I want to torture people, and I can show you how to do it.’ Or someone put out an ad on Craigslist that said, ‘Wanted: psychologist who is willing to design torture program.’ It’s a lot more complicated than that,» Mitchell told The Guardian in his first public comments regarding the program.
«I’m just a guy who got asked to do something for his country by people at the highest level of government, and I did the best that I could.»
Mitchell has also expressed his frustration with the “enhanced interrogation” program’s successes being ignored.
«I’m sure there are people out there who believe that if the United States acknowledged that coercion worked, there is an increased probability that people would use coercion against our people,» he said. «Never mind that they do anyway. In the fairyland they live in, all you have to do is give somebody some tea and a cookie, and everything will be OK.”
“The people who have this Jack Bauer mentality, I think, don’t understand how intel networks work, how threat matrixes are put together, and how intel is used.”