More than a year after an earthquake and 49-foot-high tsunami caused a nuclear meltdown at Japan’s giant Fukushima Daiichi power plant, Lawrence Criscione and a fellow Nuclear Regulatory Commission engineer sought to ensure such a catastrophe couldn’t happen to U.S. reactors.
On Sept. 18, 2012, Criscione sent a 19-page letter informing Commission Chair Allison Macfarlane that Duke Energy had grossly underestimated odds that a dam upstream of its Oconee nuclear plant in South Carolina might burst and knock out all power supplies needed to keep its reactors cool. He shared the letter with 13 members of Congress.
A former nuclear reactor operator himself, Criscione told Macfarlane the agency appeared to have been negligent in failing to address for over six years a “harrowing liability” – one that also applied to several other plants downstream of dams.
What happened next echoes the experiences of so many Washington whistleblowers and exemplifies a disparity that could haunt former Secretary of State Hillary Clinton as she tries to withstand disclosures that her private email server transmitted classified information.
The nuclear agency’s internal watchdog sought Criscione’s criminal prosecution.
Clinton appears unlikely to face similar peril, though published reports that the FBI has recovered some of the 31,000-plus personal emails that she had deleted from her private account could add uncertainty to the matter. Even so, if she comes out no worse than did three ex-CIA directors and other former top government officials accused of mishandling classified information, she won’t have to worry about jail time.
But what if voters in next year’s presidential campaign perceive that the scales of justice weigh differently for her and other senior officials than it does for agency grunts like Criscione?
Such preferential treatment has engendered cynicism and resentment among some lower-level government employees who risked their careers to release sensitive information about waste, fraud, abuse or dangers to the public health or safety. Some believe Clinton, still a contender for the Democratic presidential nomination, will get off easy.
“If a career civil servant had a server with Top Secret information in his basement,” Criscione said in a phone interview, “he would without a doubt do time” in prison.
But he said he believes Clinton “will not be prosecuted because of political reasons.”
Criscione said even if Clinton avoids prosecution over her handling of now-classified material, she deserves to face criminal charges for setting up a private email account to circumvent disclosures under the Freedom of Information Act. The Freedom of Information law, however, doesn’t provide for criminal penalties.
Hillary Clinton recently said putting all of her emails on a private server was a mistake ... and she was trying to be as transparent as possible. It’s obvious that the whole reason she had the private server was to avoid transparency altogether.
Criscione’s colleague, reliability and safety engineer Richard Perkins
The day after Criscione sent his letter, whose assertions are strongly disputed by Duke Energy, the Nuclear Regulatory Commission’s inspector general began investigating whether he had illegally made public information marked “For Official Use Only -- Sensitive Security Information,” he learned later. In the ensuing weeks, he endured tough interrogations.
During the same time period, a commission’s Freedom of Information officer seemed to undercut that assertion. He wrote a requester that “For Official Use Only” is an “unofficial administrative marking that has no legal import.”
Criscione’s colleague, reliability and safety engineer Richard Perkins, had separately asked the Regulatory Commission’s inspector general to investigate whether the commission was using security-related designations to raise the specter of terrorism threats so it could conceal dam failure risks from the public.
That didn’t impede the inspector general from taking previously undisclosed step of asking the Justice Department in February 2013 to charge Criscione with misusing his government computer to transmit sensitive information. Days later, the U.S. attorney’s office in Springfield, Ill., where Criscione lives, declined to prosecute him.
Criscione said he was in limbo for another 13 months before learned he had been cleared.
Rough treatment of whistleblowers, whose jobs are protected by law, comes as no surprise to Danielle Brian, who has examined their allegations for years as executive director of the Washington-based Project on Government Oversight. She said those who reveal confidential or classified information have “lost their livelihoods, have been prosecuted, have even had their homes raided for heroically trying to stop wrongdoing.”
“This is a far cry from how politically connected senior officials who have actually mishandled classified information, either for convenience or for self-aggrandizement, are treated,” she said. “This double standard is frankly un-American.”
Former CIA directors John Deutch, Leon Panetta and David Petraeus all faced inquiries for alleged mishandling of classified information and all escaped jail. So did President Bill Clinton’s former national security adviser, Sandy Berger, who pleaded guilty to a misdemeanor for briefly removing classified documents from the National Archives.
Lewis “Scooter” Libby, an aide to former Vice President Dick Cheney, was convicted of lying and obstructing justice to conceal his leak to the news media identifying - and ruining the career of - clandestine CIA employee Valerie Plame. President George W. Bush commuted his 2 1/2-year prison sentence, though Libby had to pay a $250,000 fine.
William Binney, a former senior National Security Agency employee who blew the whistle on alleged mismanagement in 2002 and soon resigned because he was sure the agency was illegally spying on Americans, doesn’t mince words on this subject.
“These people are above the law,” he said of Hillary Clinton and other present and former national security officials.
In 2007, Binney was toweling off from a shower at his home when gun-wielding FBI agents burst into his bathroom to serve him with a search warrant. The bureau mistakenly suspected that he or fellow agency whistleblower Thomas Drake had told the New York Times details of a highly classified, post-Sept. 11 program to conduct warrantless wiretaps on Americans.
Binney said government officials had “blackballed” the consulting firm he co-owned since 2002 from winning contracts with intelligence agencies, costing him millions of dollars. Now, he said, he was wiretapped, stripped of his security clearance and for two years was threatened with prosecution.
Every month a newsletter internally at NSA ... says report fraud, waste and abuse to the Defense Department inspector general. We thought we should listen to our responsibilities as federal employees, which is what we did. For that reason they attacked us.
Former NSA whistleblower William Binney
He said the gravity of Clinton’s decision to use a private email system should not be underestimated, because the information sent and received related to “the highest level of foreign policy in the United States,” foreign relationships and U.S. planning.
Further, he contended that Clinton’s email account created “a prime target for hackers,” including the governments of China and Russia.
Clinton said recently there is “no evidence” her email server was hacked, but has yet to disclose what was done to prevent it.
Carol Cratty, a spokeswoman for the FBI, which took custody of Clinton’s server in August as part of an inquiry into whether her email arrangement compromised national security, declined comment.
Binney also noted that medically handicapped NSA employees sometimes get approval to work from home, but must have special, secure facilities installed in their houses.
“She didn’t do any of that,” he said.
Spokespeople for Clinton’s campaign and the NSA did not respond to requests for comment.
Clinton initially said there was no classified information in her emails. In an ongoing review, the State Department and Intelligence Community so far has found classified material in nearly 200 emails, including two labeled Top Secret.
Another whistleblower, Robert MacLean, took a risk two years after the Sept. 11, 2001, terror attacks that cost him his job.
In late July 2003, he leaked to a television reporter a budget-driven Transportation Security Administration decision to pull sky marshals who travel armed and incognito off of long-haul flights requiring hotel stays.
MacLean said he acted because, just two days earlier, air marshals were alerted to intelligence indicating al Qaida was plotting new suicide hijacking plots.
Ironically, then-New York Sen. Hillary Clinton was among 11 members of Congress who responded harshly to the disclosure, expressing her “extreme concern” with the agency’s security cutback, he recalled. The Transportation Security Administration promptly reversed its decision.
MacLean wasn’t fired until April 11, 2006, well after admitting he leaked the information and appearing in silhouette on the NBC Nightly News to berate a requirement that air marshals wear suits and ties, making them easily identifiable. In firing him, the agency said he lacked authority to disclose “Sensitive Security Information.” However, the text message he leaked wasn’t marked as confidential at the time and was sent to marshals’ cheap, unsecure cell phones, not over a secure line.
MacLean noted that he and Clinton have had similar defenses: the directive pulling air marshals off of lengthy flights was declared sensitive retroactively.
“What bothers me is she’s using the same arguments that I used, but she never reached out to help me,” he said.
If she 100 percent believes what she did was right, how come she never lifted a finger to help me the past nine years? She was very aware of my case.
Federal Air Marshal-turned-whistleblower Robert MacLean
While fighting in the courts for reinstatement, he sent 33 emails to Clinton via her presidential campaign or her family’s global charity, the Clinton Foundation, seeking help as he bounced from job to job. All went unanswered, he said.
Last January, in a landmark ruling, the U.S. Supreme Court ruled that the Whistleblower Protection Act barred MacLean’s firing.
On March 11, as he awaited reinstatement, he emailed Clinton that he was “officially indigent,” a father of three children living on food stamps and welfare checks.
“I would appreciate if you could please consider helping me find work,” he wrote her.
A spokesman for Clinton’s campaign did not respond to questions about MacLean.
He was finally reinstated weeks ago, but is still awaiting an assignment while fighting over attorneys’ fees and back pay.
As he watches developments surrounding Clinton’s emails, MacLean said he’s sure she’ll face an easier path.
“There’s just a different standard for whistleblowers than for politicians,” he said.
Eleanor Mueller contributed to this report.