NSA Caught Destroying Evidence in a Whistleblower Case

Destroying evidence in an on-going investigation is against the law, but when the National Security Administration (NSA) destroys it as part of a whistleblower case against the NSA, that’s —

what can we say? — extremely inadvisable.

The Story of an NSA Whistleblower

Thomas Drake was a senior executive at the NSA for seven years. When he advised his superiors of illegal actions, mismanagement, and rampant waste of resources at the NSA, his complaints were ignored. Instead of seeking legal counsel and launching a whistleblowing case, he turned to the court of public opinion and gave the information to a reporter. Although he used encrypted email, his indiscretions were caught.

The NSA deals seriously with security breaches and Drake was brought up on a 10-count charge under the Espionage Act by the Obama Administration. He later pled to a misdemeanor and received community service.

In 2002-2003, Drake was part of a whistleblower case group working with congressional and Pentagon Inspector General inquiries scrutinizing the NSA’s surveillance programs. When Drake’s attorneys approached the Pentagon for papers related to these findings and their client’s participation, they were told the requested items were destroyed “pursuant to a standard document destruction policy.” Thus, they couldn’t be provided to the investigators.

Drake’s current attorney investigated these claims and found out no standard document destruction policy exists. In fact, they have a retention policy, that such documents should be kept. No one knows what was in these documents and it appears they never will.

This matter is now in the hands of a federal judge to figure out whether the U.S. government destroyed documents involving a known whistleblower case.

Whistleblower Protection in the Workplace

While the details of this case are somewhat different due to the involvement of the NSA and matters of national security, whistleblowers are afforded levels of protection under the law. The Whistleblower Protection Act of 1989 protects federal employees who report agency misconduct. An agency cannot take retaliatory action, or threaten to take it, because of disclosure of information by that employee.

Whistleblowers may file complaints that they believe shows evidence of:

• violation of a law, rule or regulation
• gross mismanagement
• gross waste of funds
• an abuse of authority
• a substantial and specific danger to public health or safety

The Office of Special Counsel hears these federal complaints. In 2008, the office was riddled with a scandal amidst allegations that then Special Counsel, Scott Bloch, deleted computer files following complaints that he had retaliated against employees who disagreed with his policies. He later resigned during the FBI investigation.

Florida also has its own Whistleblower’s laws- one which protects employees of private employees and a second which applies to the public sector. The Private Whistleblower Act makes it unlawful for employers to terminate employees for uncovering, objecting to, or reporting violations of state and federal law. Many companies are worried about ethics and have their own whistleblowing hotlines. Reports can be made there or to a governing agency. Once you’ve reported the wrongdoings, and an investigation is under way, they cannot fire you or retaliate against you in any way because you engaged in whistleblower activities. If they do, it’s against the law.

Are you being retaliated against by your employer after uncovering and reporting unlawful activity by your employer? If so, you need to protect your rights as an employee immediately. Contact Wenzel Fenton Cabassa, P.A. today. The initial consultation is free.

Please Note: At the time this article was written, the information contained within it was current based on the prevailing law at the time. Laws and precedents are subject to change, so this information may not be up to date. Always speak with a law firm regarding any legal situation to get the most current information available.