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Benghazi Survivors Remain Gagged by Federal Law by Kerry Picket


Benghazi Survivors Remain Gagged by Federal Law

   by Kerry Picket 20 Feb 2013
Many continue to ask why the media and lawmakers have not spoken to or brought forth those who survived the deadly attack on the U.S. mission in Benghazi last September. The truth of the matter is the Americans who survived that attack cannot legally reveal to members of the press or most lawmakers that they were even witnesses to the attack in Benghazi.

According to then-Secretary of State Hillary Clinton, immediately following the attack, the FBI, as part of the agency’s investigation, interviewed survivors of the Benghazi attack.

Bill Bransford, a Washington, D.C. attorney at Shaw Bransford & Roth P.C. who specializes in federal employment law told Breitbart News on Tuesday, “First of all, I’m assuming that most of these people who witnessed the attack, except for the State Department folks, would be intelligence people, and they are not covered by the whistle blower protection laws.”

Bransford added, “They are covered by whatever policies their agency has. An executive order that President Obama issued in the late fall in which he ordered the intelligence community to come up with a more effective whistle blower protection system, which has not yet been developed.”

However, as federal employees, State Department personnel must sign non-disclosure agreements. Bransford stressed, “If somebody violates one of these non-disclosure agreements, the consequences could include: interfering with a criminal investigation, obstruction of justice, criminal charges for releasing classified information, and those are pretty serious.”

Serious indeed. The Obama administration’s Justice Department has prosecuted more federal employees for leaking information to the press under the 1917 Espionage Act than all other administrations combined. Bloomberg News reported last September:

“There’s a problem with prosecutions that don’t distinguish between bad people–people who spy for other governments, people who sell secrets for money–and people who are accused of having conversations and discussions,” said Abbe Lowell, attorney for Stephen J. Kim, an intelligence analyst charged under the Act.

Lowell, the Washington defense lawyer who has counted as his clients the likes of Jack Abramoff, the former Washington lobbyist, and political figures including former presidential candidate John Edwards, said the Obama administration is using the Espionage Act “like a club” against government employees accused of leaks.

The prosecutions, which Obama and the Justice Department have defended on national security grounds, mean that government officials who speak to the media can face financial and professional ruin as they spend years fighting for their reputations, and, in some cases, their freedom.

Since Breitbart News first broke in December that the Obama administration was hiding Benghazi attack survivors, Senator Lindsey Graham (R-S.C.) began demanding the FBI hand over to Congress the interviews the agency conducted with individuals who survived the deadly attack.

Senator Graham spoke to Chris Wallace on Fox News Sunday last weekend about his frustration regarding the issue:

WALLACE: Senator, let me pick up on one of them I find, frankly, quite astonishing. What is the administration’s explanation for the fact the FBI interviewed the survivors, all the Americans who safely got out of Benghazi, right after the attack, months ago, and that they refused to give the transcripts of the interviews to Congress. What’s their explanation for that?

GRAHAM: This is an ongoing criminal investigation is what they told me. We are going back to the law enforcement model, where we’re treating al Qaeda as sort of a mafia, common criminal element rather than enemy combatants.

And here’s what was really stunning, the FBI interviewed the survivors, two days after the attack in Germany and, the CIA never called the FBI for weeks, wanting the results of the interview before they made their assessments — we are going back to the pre-9/11 mentality of — where we treat it as a law enforcement function, and FBI and the CIA never talk to each other, which is very dangerous.

Benghazi was system failure, before, during and after.

Clinton testified to the Senate Foreign Relations Committee in January that there were about 25 to 30 survivors and she only spoke to one. Many of the individuals who worked at the U.S. compound were either CIA or State Department employees.

“I have spoken to one of them,” said Sec. Clinton, “but I waited until the ARB [Accountability Review Board] had done its investigation because I did not want there to be anybody raising an issue that I had spoken to anyone before the ARB had conducted its investigation.”

“I still have a DS [Diplomatic Security] agent at Walter Reed seriously injured,” Clinton testified. “Getting them into Frankfurt Ramstein to get taken care of, the FBI going over to immediately start talking to them—We did not think it was appropriate for us to talk to them before the FBI conducted their interviews.”

Walter Reed National Military Medical Center is not only heavily guarded on the outside but on the inside as well, some say. In December 2012, visitors to the amputee ward at the NNMMC (Bethesda Hospital) observed what appeared to be Secret Service personnel moving in and out of a closed wing of the floor that was off-limits to everyone else.

According to Fox News, former Senator John Kerry, now Secretary of State, visited Benghazi survivors at Walter Reed on February 4th. Fox News host Greta Van Susteren asked Senator Graham about Kerry’s visit.

I’ve been asking in November, we wrote to the president. The person I blame above all others is President Obama, did you know president Obama, in April or June why wasn’t the Congress informed. They were interviewed two days by the FBI you know the CIA never called up the FBI and say, what did they say about the attack. If you talk to the survivors, you would have known it was a coordinated terrorist attack and not a mob.

Bransford points out that, to the extent that these potential witnesses are State Department employees, they are governed by the whistle blower protection act as modified by the Whistle Blower Protection Enhancement Act of 2012, which just went into effect six weeks ago. According to Bransford, it does have a provision in it about non-disclosure agreements, but that some of the changes may not yet be in effect because the law is so new and the employee is supposed to be aware of the non-disclosure policies.

For example, it would be consistent with the law on classified information and what they’re allowed to tell Congress. That’s an area that’s kind of brand new and it would only apply to the non-intelligence people–like diplomatic security agents. The FBI probably interviewed them.

It is customary and probably consistent with valid non-disclosure policy to tell somebody who is a witness in an ongoing criminal investigation, which of course the FBI is there, so it’s criminal and counter-terrorism, to tell (witnesses) they are not to discuss the substance of the interview or what they discussed with the investigating agents with anyone. And that would be consistent with a valid non-disclosure policy. So, at this stage, to get (Benghazi survivors) to talk might be tough.

“[Those in the intelligence community] are protected very loosely and historically by, essentially if they are a CIA employee, by reviews by their Inspector General’s office on whether they disclosed appropriately evidence of wrong-doing and did it through the appropriate classified channel. This has not been viewed as very effective,” said Bransford.

“The president issued an order to the intelligence community in November, maybe early December, telling the intelligence community to come up with, in the next year or so, an administrative policy within the intelligence community, that provides greater whistleblower protection and a channel for whistleblower to disclose allegations of wrong-doing.”

Is there any recourse for Benghazi survivors to ever tell their stories? Certain members of Congress who are authorized to receive information of an ongoing FBI investigation may be these individuals’ only outlets to do so.

“Those sources in Congress themselves are precluded from further releasing the information. They know that it’s classified and they can’t release it to the media. They couldn’t get up on the floor of the Senate or at a hearing and make a speech about it because it’s classified and they seem to respect that,” Bransford said. 

He added, “Does that mean that they can’t release it later? Maybe. Meaning there could be some political stuff going on to try and get that information but I’m not sure what’s going to happen with that.”

Senator Charles Grassley (R – IA), the co-author of the Whistle Blower Protection Enhancement Act sent a statement to Breitbart News on the law:

Unfortunately, whistleblower protection laws are necessary. We’ve seen far too many people who are shunned to a corner, or worse, for simply trying to do the right thing by exposing wrongdoing within the federal government. The Whistleblower Protection Act allows a federal employee to come to Congress, or others as designated by Congress, and provide information about wrongdoing, including waste, fraud and abuse of government programs. There are additional protections for whistleblowers who come forward to Congress, such as the Lloyd-Lafollette Act and the Anti-Gag statute. By coming to a member of Congress, we can create a formal record of the protected correspondence between the member and the whistleblower which should serve as a reminder to the federal agency that actions of retaliation are against the law.

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