See Something, Say Nothing

by Philip Haney

  What I didn’t know – and still don’t know to this day – was whether the actions that had just been taken, which included taking away my service weapon, were related to either case, or both, or yet a third investigation.

  A NEW APPROACH

  When I got home, my wife was gone, so I waited there alone until she returned. Later, she told me that as soon as she pulled into the driveway and saw my pickup truck, she knew something was wrong.

  We sat down in the living room, and I told her what had just happened at work.

  On the outside, she seemed to take the news well, but on the inside, it was a different story.

  Earlier, I mentioned that my wife had been very sick while I was on TDY at FLETC. What I didn’t mention before is that she is also handicapped.

  After a few minutes, the impact of what I told her became too much for her delicate system to absorb. She went into trauma-induced shock, and before the evening was over, we were in the emergency room at Emory University Hospital in Atlanta.

  She was admitted and stayed in the hospital for three days. While I sat with her, we talked about what to do next, and we decided together that I would apply for Emergency Family Leave and start using up the 550 hours of sick leave that I had saved up over the years.

  We also decided that I would put in the paperwork to retire as soon as possible, which would be on my sixty-second birthday in July 2015.

  At that moment, I took a new tactical approach. From here on, my focus would be to help her get better and to survive until I could retire.

  The only question at this point would be, “Will I get shot out of the sky, or have to bail out; will I crash-land, or will I actually make it all the way home, and come in for a soft landing?”

  After she was released from Emory, we packed up a few things and left Atlanta for several weeks.

  While we were away, I stopped in Washington and met with Representative Gohmert and his chief of staff, Connie Hair, on September 30, 2014.

  We met as friends. Gohmert encouraged my wife and me not to give up, and to see it all through, at least until I was able to retire.

  During that week, I met with my lawyer with the Brownell Firm, at the firm’s Washington, DC, office. Brownell had been my legal counsel for more than a year already, but this was the first time any of us had met face-to-face.

  The meeting was cordial but very complicated. By this time, in late 2014, there were so many moving parts to my case that I wouldn’t blame anyone for being overwhelmed by its complexity.

  First, there was no communication from my own agency. My status as a whistle-blower depended on who you talked to. Congress said I was a whistle-blower, but my own agency ignored the question, and my law firm insisted it wasn’t in their purview.

  Second, the DHS inspector general who had originally taken my case had resigned in disgrace, while the IG’s office told me I had to FOIA my own investigation. Moreover, the OIG investigator had told me I “didn’t need to brief the new IG.”

  Third, along with the IG report, Congress was trying to get to the bottom of several of my other allegations, but they ran into a wall everywhere they turned.

  This was the most difficult part of the whole ten-year ordeal.

  My status was unclear – was I a whistle-blower or a criminal? No one was talking, and my career – and life, for that matter – hung in the balance.

  A month later, the Brownell Firm assigned a criminal defense lawyer and former federal prosecutor to my case, and on November 20, 2014, we had our first hour-long conversation on the phone.

  During our conversation, my lawyer said, according to my contemporaneous notes:

  Don’t give anything to anyone anymore. The people in Congress are not your friends; they will take what you give them, but won’t do anything to help you – they won’t be there when you need them.

  If you chose to disregard my advice, I will have to reconsider whether or not I will represent you.

  I don’t know whether or not you’re really a whistleblower.

  On December 9, 2014, my lawyer informed me by e-mail that he had received a call from Bill Pittard, an attorney at the House of Representatives, General Counsel’s Office, to let him know that Department of Justice investigators Charles Walsh and Ray Hulser wanted to interview Connie Hair. They knew I had provided information to her and others on the Hill and that Congress believed me to be a whistle-blower. The prosecutors also confirmed that they were investigating allegations that I had misused a government computer, using it to provide information to the media.

  Pittard said he did not think Hair would agree to an interview and that if DOJ served her or anyone else on the Hill a subpoena, they would resist under the Speech and Debate Clause.

  Nevertheless, the DOJ served subpoenas to the staff of members of Congress.

  This complicated things even further, because now that the DOJ had inserted itself into the case, I could no longer talk to anyone on the Hill who might be somehow involved in the investigation.

  Otherwise, it could be seen as collusion or obstruction of justice.

  Now, I was even more alone.

  Meanwhile, things didn’t go well with my criminal defense attorney either.

  On December 18, 2014, he told me in an e-mail that he had resigned:

  I am writing to confirm our previous conversation [on December 16, 2014].

  Due to irreconcilable differences, I cannot continue to represent you.

  I also told you that you are a target of a Federal criminal investigation. I advise you to seek new counsel and to cooperate fully with this attorney.

  I wish you the best of luck going forward.

  Fired by my own attorney.

  Before it was finally over, Brownell also withdrew as my counsel, and the federal employee insurance company that provided my liability insurance also terminated any further coverage of the case.

  Much of the conflict between my legal team and me had to do with the murkiness of whistle-blower status.

  On January 13, 2015, the Brownell Firm tried to explain it to me as follows:

  Please note that we have not (and do not) comment on the legal sufficiency of your prior whistleblower disclosures.

  This is an exceedingly complex and factually-intensive area of law that is most effectively addressed in response to allegations of wrongdoing that, to date, have not been formally charged.

  While we understand that you are a self-designated whistleblower, we do not speculate at this time as to whether your assertions are correct, or entitle you to any protections under the law.

  I must have read over those words at least twenty times, but to this day, I still don’t know what they mean.

  I guess that must be what amounts to “irreconcilable differences.”

  This whole complex story goes back to April 18, 2013, when DHS Secretary Napolitano insisted during public testimony before Congress that the Saudi national, Alharbi, was never in custody and never a subject of interest in the Boston bombing case. If all this was really true, then why were CBP Internal Affairs and the DOJ both investigating me?

  Perhaps we’ll know the real answer one day, but in the meantime, this is what killing the messenger with invisible shrapnel looks like.

  12

  UPHOLDING MY OATH

  During the last two months of 2014, and into the first couple of months of 2015, I was on Emergency Family Leave about half of the time.

  In some ways, it was the most normal time in my CBP career: I worked from 7:30 to 3:30, avoided the Atlanta traffic, for the most part, and had weekends off.

  But night and day the specter of uncertainty loomed.

  Would I get an e-mail from CBP Internal Affairs for another “voluntary interview,” a subpoena from the DOJ to appear for another deposition, or maybe a call from the FBI, or even a knock at the front door?

  And, I still wasn’t able to talk to my contacts in Congress, because the Department of Justice case was still in progress.

 
; It was assumed that my calls and e-mails were being monitored – they were – and my friends and colleagues were hesitant to talk to me. They believed me and felt I was doing the right thing, but with most people there was an element of uncertainty in every conversation.

  There were notable exceptions, however.

  Several of my active-duty colleagues never wavered in their support, including my former FLETC instructor Anthony (Tony) Rahaim, who was a constant source of encouragement and good advice.

  In particular, I’m thankful to Ronnie Matheson, my first-line supervisor in the Cargo Office, who made the last nine months of my “modified duty” much more pleasant than it might have been.

  There were also several others from my time as a TDY instructor at FLETC and from the Port of Atlanta who consistently offered support and encouragement.

  GRAND JURY

  In early February 2015, I came up to Washington to discuss some postretirement business opportunities and stayed in the home of my friend and fellow counterterrorism specialist Stephen Coughlin.

  That evening, Stephen and I rendezvoused at a local restaurant with Patrick Poole, an investigative reporter on terrorism and national security.

  After we ordered and got settled in, they said they had some news for me. “The DOJ has convened a grand jury and is seeking to indict you on criminal charges,” they told me.

  In law enforcement, we call this a “comma, pause for effect” moment.

  Both said they didn’t know much more than that, but I had a fairly good idea that those charges would be the ones that the DOJ lawyer had cited to Joe Schmitz on May 21, 2014: 18 US Code §1030(a)(3), which is “fraud and related activity in connection with computers.”

  More specifically, the code threatens punishment to:

  Whoever … intentionally, without authorization to access any nonpublic computer of a department or agency of the United States, accesses such a computer of that department or agency that is exclusively for the use of the Government of the United States or, in the case of a computer not exclusively for such use, is used by or for the Government of the United States and such conduct affects that use by or for the Government of the United States ….1

  To anyone who reads this and says, “What the heck is that supposed to mean?” I agree completely. It has to be one of the most subjective and vague statutes ever written, a “catchall clause.”

  The key point of statute 1030(a)(3) is the phrase “without authorization,” which means that it never applied to my situation in the first place. I certainly was authorized to access a government computer. I had been doing it in my service with the Passenger Analysis Unit, the Investigative Review Unit, the Advanced Targeting Unit, the National Targeting Center, FLETC, and on the primary and secondary lines for more than ten years.

  As a well-known subject matter expert within CBP, I had also received multiple cash awards, commendation letters, FBI and JTTF recognition, and numerous offers from my colleagues in sister agencies to help them with terrorism-related cases.

  Yet, this would be the charge they would hang their whole investigation on, along with a possible Privacy Rights Violation, which I wouldn’t find out about until a few months later.

  So, I caught my breath, again, and kept moving forward.

  Then came another period of quiet, which lasted for a little more than two months, until Memorial Day, May 25, 2015.

  ATTENDANCE REQUIRED

  That morning, I reported for duty at the Cargo Office and found the following e-mail waiting in my in-box:

  CBP Office of Internal Affairs is requiring your attendance for a subject interview on Wednesday, May 27, 2015 at 9:00 am.

  It is possible the interview may require two days.

  If so, we will resume our interview on Thursday, May 28, 2015 at 9:00 am as well.

  You will be interviewed in an administrative investigation and you are entitled to union representation.

  Please understand that this is a compelled interview and you are not to disclose it to anyone unless they have an official need to know.

  On Wednesday, please report to the office of APD [author’s redaction].

  Please feel free to contact me or SA Murphy [pseudonym] with any questions.

  I contacted my union representative, Steve Francis (not his real name), right away. He came over to the Cargo Office an hour or two later, and we talked it over.

  We agreed that I would write a memo summarizing the major points of the case, along with a list of our unanswered questions and concerns.

  The plan was to present the memo to Special Agents Shaw and Murphy, and to hopefully have a few of the questions answered before we started the “compelled interview.”

  Here are the four questions that were included in the memo:

  1. Is the purpose of the interview this morning related to the ongoing CBP investigation [which began July 31, 2013]?

  2. Is that CBP Internal Affairs investigation related to the DOJ case?

  3. This interview is defined as “Administrative,” while the DOJ case is defined as “Criminal.” In light of this, do I have any specific legal rights (i.e., Fifth Amendment rights) that need to be considered before we proceed with today’s interview?

  4. What role does Part 792 of the Whistleblower Protection Act play in the proceedings this morning?

  The morning of May 27, 2015, arrived, and Officer Francis and I reported to the APD’s office.

  After exchanging a few pleasantries and settling into our places, Officer Francis announced that he would like to read the questions in our memo into the record. Both of the special agents agreed, so Officer Francis went ahead and began reading.

  But before he even got halfway through the second question – which was whether or not the CBP Internal Affairs case was linked to the DOJ case – Agent Shaw interrupted.

  “Let’s just cut to the chase,” she said. “I’m the one who turned your name in to DOJ. Yes, the two cases are related, but the DOJ case has been dropped.”

  It was another “comma, pause for effect” moment.

  However, we had to continue with the compelled interview, so neither Francis nor I had time to fully absorb what Shaw had just said.

  So we carried on.

  That first day was tough. The questions were coming fast, one after the other, for eight hours straight, except for a quick, late pause for lunch.

  By the end of the day, my head was spinning. I felt like a boxer who was backed into the corner, just trying to keep my hands up and keep from getting hit.

  By now, it had become obvious that the point of the interview was to get me admit – once and for all – that I was the one who leaked the information on Alharbi to Glenn Beck and/or to Fox News.

  But no matter how many different ways they kept asking me the same question, it couldn’t change the simple fact that I was not the one who leaked it.

  “DO THIS”

  That night, I was restless, tossing and turning in bed.

  Then, just as I was about to finally fall asleep, I suddenly knew exactly what I needed to do; that is, how to go from being on the defensive and backed into a corner to getting back into the fight.

  In my heart, my mind, I heard, Do this, and you will disarm them.

  First, come to terms quickly with your accusers; otherwise, you will never get out until you pay every last cent of your sentence.

  Second, tell them exactly what happened, from start to finish, and the truth of what you tell them will set you free.

  When you go in tomorrow morning, offer them an agreement and have them put it in the record.

  Tell them you would like to expedite the whole process – not circumvent it, but expedite it – by recounting exactly how you became involved in this case.

  If you do that, you will disarm the situation.

  So, that is exactly what I did.

  Before we went in the next morning, I met with Officer Francis and told him I was going to make them an offer, on the record, to tell t
hem everything that happened in the Boston case from start to finish, and how I got pulled into the middle of it all.

  He said, a little hesitantly, “Well, okay.”

  And with that, in we went.

  I told them immediately that I would like to make them an offer, first without the recorder, to see if they would agree. Then, if they agreed, I would repeat the exact same offer, only this time it would become part of the record.

  I also added that it would be a win-win for them. For one, if they already had a working premise of what really happened, then what I was about to tell them would just confirm their premise. For another, maybe some of what I was about to tell them would be new information.

  Either way, it would help them resolve the case.

  After a slight pause, they agreed to my offer.

  They turned on the tape recorder, and I stood up and gave them a moment-by-moment account of how I accessed the information in the system just a few hours after the bombings, then watched the hearings three days later as Secretary Napolitano give her infamous “three nos” to vice-chairman Duncan.

  I continued on, from the moment I got the call that congressional liason Orzel was about to be fired from the House Homeland Security Committee to when I sent the information to a secure fax in the committee office, to the moment a week later, when I saw Glenn Beck showing some of the same information on TV.

  As I sat down, Agent Shaw excused herself and went into the restroom adjacent to our meeting room. When she came back a few moments later, she was dabbing her eyes with a tissue.

  After she sat down again, she paused for a few more moments, then looked at me. “Mr. Haney,” she said, “you have really touched my heart, deeply, and my estimation of you has gone up immeasurably.”

  We took a short break, then came back and resumed the interview.

  In those few moments, something had changed. Before, the atmosphere had been overtly adversarial, but now it was more cordial, almost like four cops working on a case together, which, technically, it was.