It has become an entrenched trope, a go-to defense, for the Government Accountability Project and its defenders to claim that GAP “can’t help everybody,” or “they helped me for free,” when its performance as an accountability organization comes under questioning. This line of deflection–this conscious blurring of the line between its functions as lawyers and lobbyists–is so powerful that it survived two different radio shows unquestioned. Until now.

Recently, GAP’s Tom Devine was on the Peter B. Collins show with his client, TSA Whistleblower Robert MacLean, who won a victory in federal court (the same show where Devine and his client displayed poor judgment by adopting the tactics of bureaucratic bullies, and not the first time for Devine). Toward the end of the show, Collins asked Devine to respond to some critiques by DOE Whistleblower Joe Carson:

Peter B. Collins (38:13):

Tom, I’d also like you to react to some information and commentary that I’ve received from Joe Carson. And I- I can’t imagine that you’ve never heard of Joe Carson. He is a profilic writer and he has contacted many agencies and congressional committees and the White House over the years. He is- he describes himself as a successful whistleblower in the Department of Energy, where he is a nuclear engineer, in Tennessee, and he’s been very active on these issues. And his central focus is on the Office of Special Counsel, and the role that it has under the 1978 in protecting whistleblowers.

And he contends that there has been what he calls a “broken covenant” – this longtime failure to enforce these rules, and in particular for the OSC, to exercise its appropriate role in protecting whistleblowers. And he starts with the contention that most federal employees don’t even know about their rights under the Office of Special Counsel. Could you- I’m sure you heard from him, so could you tell me your viewpoint on the issues that he raises?

Here was Devine’s reply (39:29):

I hear from Joe all the time, relentless, and we actually represented him, in some of his earlier victories under whistleblower rights in the Department of Energy. So I’m very familiar with his perspective.

And there have been extensive periods of time where I’ve completely agreed with him about the Office of Special Counsel and in fact our organization tried to get the institution abolished, we thought it was a trojan horse for whistleblowers. I don’t think that he is really fair at giving credit where it was due. Some of the special counsels who really did stick their necks out and worked hard and get effective results protecting whistleblowers.

Probably the area where we’ve really agreed to disagree the most is- Joe has been attacking me for a few years- it used to be a big [unintelligible]- he’s been attacking because I disagree with him that we should sort of delegate the policies on whistleblower protection to the White House Office of Legal Counsel. He thinks that this would straighten things out for whistleblowers, and I’ve just been dubious because it’s the same office that was behind the memos on drones and on legalizing torture and everytime we’ve learned about an opinion they’ve had on whistleblowers it’s been to shrink or abolish whistleblowers rights. So we’ve agreed to disagree on that particular issue.

The Broken Covenant Dodge

Collins (41:00):

And do you share his characterization about what he calls the “broken covenant” that those who occupy the OSC have failed to operate within the law, and you, know, to properly report on cases of the PPP – what is that – the prohibited personnel practices?

Devine (41:22):

Yeah, that’s all the merit system violations. I think you just can’t generalize, Peter. There’s been some of the special counsels who not only broke the covenant, they tried to destroy it. There was a Special Counsel in the eighties named Alex Kozinski who actually taught courses to federal managers how to fire whistleblowers without getting caught by his own investigators. He would tutor them in his office, how to write up the terminations to fire whistleblowers.

Collins:

Is that the Kozinski who’s now a federal judge?

Devine:

He is the chief- the chief judge of the Ninth Circuit Court of Appeals, and if he hadn’t got caught by whistleblowers from the Office of Special Counsel, he’d be on the Supreme Court right now. There were 43 votes against his Ninth Circuit circuit confirmation, because of how he broke that covenant, betraying the trust that he had as a protector of whistleblowers.

Scott Bloch, the Special Counsel under the Bush Administration, his sentencing for whether or not he’d go to jail was postponed yesterday because the evidence had been doctored about why he shouldn’t go to jail, and he was such a horrible Special Counsel that he had to resign after the FBI raided his office, and he was covering up the evidence they were seeking. There have been some people who just- they were magnets for whistleblowers by their own staff at the whistleblower protection agency.

But it’s not fair to generalize. There are some other folks who really made a difference and Joe and other members of the community, they’re observers a lot of times of what happens. I have to deliver results for people whose professional lives are at stake. And I can tell you that, right now, the Office of Special Counsel is working their tails off, and they’re getting results for whistleblowers, and a lot of- their leadership is composed of former free speech activists and employee rights activists, their whole careers. It’s not fair to say that one institution is always good or always bad, that’s just not the way life operates. And right now, we’ve gone from warning whistleblowers not to sabotage themselves by filing complaints with the Office of Special Counsel. We’ve gone from that perspective five years ago to the Office of Special Counsel being the first option to help whistleblowers, and it’s completely just dependent on the results.

Cute. Notice, however, that Devine never really answered the specific question posed by Collins: “do you share his characterization about what he calls the ‘broken covenant’ that those who occupy the OSC have failed to operate within the law, and to properly report on cases of the PPP?”

Instead, Devine claims that “you just can’t generalize” and proceeds to distract with titillating tales of political intrigue (while attempting co-opt the broken covenant term, if not dismissing this author and others as mere observers who aren’t affected by OSC’s failures and who don’t need to deliver results. And hiding once again behind his role as a lawyer to defend his actions as a lobbyist.)

The focus on “results,” however, proves too much. What’s missing in Devine’s answer is any discussion of the law (as in “those who occupy the OSC have failed to operate within the law“).

Here are some hard facts regarding just one prong of Carson’s “broken covenant” theory:

• Carson contends that federal employees do not have an effective way to bring forward concerns (i.e. ”protected disclosures”), particularly classified ones or ones that are otherwise prohibited from public disclosure, despite OSC being the primary mechanism for this, by virtue of the 1978 Civil Service Reform Act.
• Since 1989, OSC has received 28 disclosures from whistleblowers within the FBI, CIA, NSA, DIA, and NGIA.
  • Of those, it referred none to the agency heads for internal investigations.
• Since 1989, OSC has received 11,174 disclosures from other executive branch agencies, over which it has whistleblower protection jurisdiction.
  • Of those, 81 were disclosures that were prohibited by law to make publicly (i.e. to the media).
  • Of these 81 prohibited/classified disclosures, 5 were referred to the relevant agencies for internal investigations.
  • Of these 81, only one involved foreign intelligence or counterintelligence information, requiring mandatory referral to the intelligence committees in Congress and the National Security Advisor.

Think about it: since 1989, of the thousands of disclosures OSC has received, only one merited confidential referral to the national security apparatus in Congress and the White House. This is so despite 9/11, the Iraq War lies, illegal torture, warrantless wiretapping, the drone strikes, and, of course, Sibel Edmonds’ explosive allegations. OSC’s failure to be a viable classified disclosure channel has cut across all tenures, all special counsels, and all administrations, including the special counsels over whom Devine weeps. So you can, in fact, generalize, contrary to Devine’s non-answer.

Rebuttal

In the second half of the show, Collins asked Carson and me to come on and provide a reaction to Devine’s interview. You can hear how pervasive the GAP-as-lawyers-not-lobbyists defense is when Collins, acting as devil’s advocate, pushed back against our arguments that GAP has cornered the market as a watchdog organization, by arguing that GAP cannot provide representation to all who seek its help. This is true. However, the critique against GAP is not that they aren’t omnipresent as counselors, but that they fail to use their clout and power as lobbyists responsibly.

For example, when Tom Devine’s role as a lobbyist is criticized, his defenders often downplay his clout (if not invoke their gratitude for his legal assistance – see?). But on Collins’ show, Devine himself proclaimed (at 37:45, first half) that MacLean helped give the entire national security community rights by lobbying Devine, who then got the President to issue PPD 19 (which bizarrely omitted the Office of Special Counsel). Devine cannot be both that powerful and a shrinking violet.

In this interview, Devine both accurately trumpeted his prominent role in whistleblower issues as well as showed how easily he weaves between his roles as lawyer and lobbyist. The two are not the same, and at times may conflict with one another. A discerning whistleblower would be wise to tell the difference.

Readers of my website, MSPB Watch, know that I have sued the Federal Aviation Administration earlier this year for withholding responsive documents required to be disclosed under the Freedom of Information Act.

My request asked for all documents pertaining to an assignment that I worked on while employed by the FAA. In that request, I suggested that responsive documents were “in the possession” of certain individuals, but I clarified that there might be others.

The FAA searched those individuals’ inboxes and one database, but nowhere else. The problem is that two of those individuals did not provide emails that are known to exist.

One individual, Richard Clarke, retired before I made my request, and so his account had been deleted. Another individual, Dale Roberts, suffered a computer malfunction; his inbox did not reveal anything; and, as was recently revealed in court documents, he chose not to enable his account’s archives feature.

During my administrative appeal, in October 2012, I reiterated my request for all documents related to the assignment and I said that “If such emails or other documents are not available, a reasonable search would involve any appropriate backup tapes or files.”

The FAA chose to ignore my appeal, so I sued, in January 2013.

In a motion for summary judgment dated March 11, the FAA raised the argument before the judge that its search was complete and that I am not entitled to a search of the backup tapes (or “disaster recovery tapes,” as it calls them) because…

And this is where it gets interesting.

In the March 11 filing, the FAA argued that I am not entitled to a search of the tapes because I did not “specifically” ask for it on request. It cited to the affidavit of Jeb Kreischer, a FOIA program analyst, who signed it under penalty of perjury. Mr. Kreischer did not support his assertion with any policies or documents.

In a response dated April 8, I pointed to a pair of Nov. 2011 letters sent by Victoria Wassmer, the Assistant Administrator for Finance and Management, to another requestor, in which she stated that “if a requestor believes that a search [of email accounts] is not sufficient, the requestor may request on appeal that a NEXTGEN [a/k/a disaster recovery tape] search for records be conducted.”

In other words, I caught Mr. Kreischer in an inconsistency.

In response to that, on April 22, via a supplemental declaration by Mr. Kreischer that was similarly unsubstantiated, the FAA doubled back on its previous assertion and stated that it doesn’t matter when a requestor asks for a tape search; rather, he needs to specifically reference “disaster recovery tapes” in his request.

Moreover, the FAA asserted that “[w]hen requesters state on appeal that they would like such a search, however, the FAA does not consider this statement part of the requesters’ original request.” This is important because if the FAA is late in responding to the “original request,” then it cannot assess search fees. But if the tape search is not part of the original request, then the FAA’s tardiness does not affect its ability to assess fees for the tapes (which can run into hundreds or thousands of dollars).

This is an end-run around the OPEN Government Act of 2007, in which Congress barred tardy agencies from assessing fees as an accountability measure.

That’s exactly what happened here – the FAA was late in responding to my request, but it tried to assess fees for the tapes anyway. I objected and requested it go ahead with its search. Now the issue is going to be decided by the court.

Here’s another red flag that should trouble any member of the public who is concerned about open government issues: the FAA’s assertions in court are actually an attempt to create ad hoc policy to govern when a tape search obligation is triggered. The problem, of course, is that it is attempting to dictate policy to a requestor in court, without giving him any advanced notice.

Does that trouble you? This kind of thing usually troubles the courts.

Next steps: I will be filing a response in court by May 6. Then the FAA and I will meet before the judge on May 17. And then he will render a decision.

By the way, the disaster recovery tapes (or “NEXTGEN”/”NEXGEN” search, as they were called not too long ago), were apparently implemented in May 2008, the same month the FAA received a request from the Office of Special Counsel to preserve all documents for key officials, including then-acting administrator Robert Sturgell. Weird, huh?

Review other litigation documents from Pardo v. FAA here.

Various publications covering the federal government relayed concerns by outgoing OPM director John Berry over the “denigrat[ion]” of public service while ignoring his role in the Obama Administration’s unprecedented assault on workplace protections for hundreds of thousands of civil servants, via Berry v. Conyers & Northover. (The “Berry” is for John Berry, on behalf of the Office of Personnel Management).

Whistle blowers

That case, which is currently on appeal, has generated the following comments:

Tom Devine, Government Accountability Project:

If the ruling stands, “the merit system will be history.”

Lynne Bernabei, Bernabei & Wachtel, PLLC:

[T]he Obama administration’s support of this position is an integral part of the administration’s increasing secrecy and support of a national security system that is unaccountable.

Judge Dyk, dissenting opinion in Berry v. Conyers & Northover:

The majority completely fails to come to grips with the [Civil Service Reform Act of 1978]. . . the majority’s holding effectively nullifies the statute.

Angela Canterbury, Project on Government Oversight:

Congress must legislate to overturn the wrongheaded over-reach of the Federal Circuit, . . . and to prevent agencies from arbitrarily labeling away the rights of civil servants.

None of the major publications that cover civil service issues mentioned that decision. Instead, we’re treated to this:

Federal Times, April 11, 2013:

After taking over OPM, Berry quickly became known for his optimistic and passionate speeches defending federal employees. As the political winds soured on civil servants in recent years, Berry continued speaking up for feds. At a March labor-management meeting, an angry-sounding Berry warned that the government risks becoming unable to recruit and retain a qualified workforce if it keeps freezing employees’ pay, cutting their benefits, and publicly denigrating them.

Government Executive, April 11, 2013:

Berry has been a vocal champion for federal workers during the last four years, and has a good reputation among lawmakers on Capitol Hill. His exit comes just as federal employees at a number of agencies are starting to feel the effects of sequestration, including furloughs.

The biggest offender seems to be the Washington Post, which served up the following:

Though Berry faced major headaches from computer systems and retiree issues, his greatest frustration was something more fundamental.

“I don’t know if we succeeded in beating back those small-hearted people who somehow feel it is appropriate to denigrate public service,” he said during an interview.

“I don’t know what sort of smallness of mind or heart motivates them, but they need to understand that public service matters. And these jobs are just too important to not be able to recruit the best and the brightest to do them. . . . Do you want Homer Simpson researching cancer for your children’s diseases?”

It was President Obama, Berry’s boss, who, with congressional approval, upset federal workers by freezing their basic pay rates, a freeze now in its third year.

Obama has proposed a 1 percent pay raise for next year, paired with a requirement that employees increase contributions to their pensions.

The freeze happened on Berry’s watch, but it was largely out of his hands.

Meanwhile, Federal News Radio covered its flank a bit by getting positive comments from stakeholders. None of these publications, however, mentioned the decision that could gut civil service protections for hundreds of thousands of employees.

It’s difficult to square Berry’s stated concerns for public servants in the media when he’s trying to strip them of their rights in court. It’s even more difficult to see what’s in it for the free press to give him a pass.
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A look at whistleblower laws of recent decades

In 1978, Congress debated the Civil Service Reform Act extensively. It was a landmark, once-in-a-century effort. Naturally, there would be a lot of coverage. Deliberations in the Senate took 12 days, deliberations in the House took 13 days, and the House-Senate conference took place over at least 6 days, according to records recently discovered in the Library of Congress. Here are some of the mark-up sessions and other documents from those deliberations:

• Serial No. 95-65 (March-May 1978)
• Senate Hearings on S. 2640 (April-May 1978)
• Committee Print No. 95-13 (Apr. 6, 1978)
• Mark-Up Session on S. 2640 (May 22, 1978)
• Reorganization Plan No. 2 of 1978 (May 23, 1978)
• House Hearings on Reorganization Plan No. 2 (June 6, 13, 15, 1978)
• Mark-Up Session on S. 2640 (June 8, 1978)
• Mark-Up Session on S. 2640 (June 12, 1978)
• Mark-Up Session on S. 2640 (June 14, 1978) I
• Mark-Up Session on S. 2640 (June 14, 1978) II
• Senate Hearings on S. 2640 (June 1978) (Appendix)
• Senate Report No. 95-969 (July 10, 1978)
• House Report No. 95-1396 (July 26, 1978) (Report on Reorganization Plan No. 2 of 1978)
• Senate Report No. 95-1049 (July 28, 1978) (Report on Reorganization Plan No. 2 of 1978)
• House Report No. 95-1403 (July 31, 1978)
• Senate-House Conference on S. 2640 (Sept. 18, 1978)
• Senate-House Conference on S. 2640 (Sept. 25, 1978)
• Senate-House Conference on S. 2640 (Sept. 26, 1978)
• Senate-House Conference on S. 2640 (Sept. 27, 1978)
• Senate-House Conference on S. 2640 (Sept. 28, 1978)
• Senate-House Conference on S. 2640 (Oct. 3, 1978)
• Senate Conference Report No. 95-1272 (Oct. 4, 1978)
• House Conference Report No. 95-1717 (Oct. 5, 1978)

By contrast, research into the mark up of the Whistleblower Protection Act of 1989 revealed only one day’s worth of deliberations, and the Senate’s mark up of the Whistleblower Protection Enhancement Act of 2011/12 took only five minutes.

Contrast this give-and-take in 1978 over the role of the Special Counsel, as just one facet of law, versus the entirety of the discussion over the WPEA in the Senate, 33 years later.

June 1978:

Sen. Chiles offered that

My feeling is if you put a Special Counsel in and he is appointed by the President, you know, we are really having sort of two groups that are supposed to be doing the same thing, and that is protecting the workers. You have the Merit Board, and the Merit Board is a bipartisan board with staggered terms, and it is certainly supposed to be operating in the best interests and for the best results of protecting employees. And then you turn around and appoint a Special Counsel by the President, and then you get into the whole thing of how do you get rid of him. Is he for cause? Who can initiate?

He also raised the point that

If you have a Special Counsel, and I am concerned with what we did with the Special Prosecutor in this regard, we are starting to create individuals or posts with tremendous power but no accountability  You let the President nominate him, but then he can’t be removed except for cause. He is really sort of accountable to no one once he gets in that job.

Senator Jacob Javits (R-N.Y.) responded to Sen. Chiles’ concerns and said that

[A] Special Counsel appointed by the commission would not have the standing that a Special Counsel appointed by the President would. . . . I would hope that we could take a Presidential appointee subject to Senate confirmation, give him the necessary stature and then give him the necessary protection so then he is really acting as the independent prosecutor. . . [unintelligible] making him a Special Counsel is that we don’t necessarily want them to work together. We are a little bit concerned that the Merit Systems Protection Board may, like so many other boards, get impregnated with the views and the attitudes, et cetera, of the agency which it serves. Therefore, as a check and balance, especially for whistleblowers, we want to have somebody out there who can initiate a prosecution.

Sen. Chiles responded that

Now what happens, every time that we decide we can’t trust one group and so we are going to add another check, I think really what we do is we remove a little further from the people the ability to judge and assess responsibilities and to pinpoint that responsibility, and we diffuse it. But we also make it where government can’t work because they start working at loggerheads.

So I would rather have the responsibility be on the appointments of the Merit Protection Board, that board be confirmed by the Senate, make that board of some stature, make them responsible and allow them to appoint the Special Prosecutor or the Special Counsel, and have that chain of responsibility. I think when you start deviating from that, before long we are going to need somebody to check on the Special Counsel. Then we will have to give some independence to that person because we are afraid the Special Counsel, by virtue of his term or the fact he is only removed for cause — that is just looking at it philosophically.

October 2011:

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Premised on the notion that you must be the change you want to see in the world, MSPB Watch is seeking partners to adopt–in civilian form–the duties of an inspector general for the Office of Special Counsel and the Merit Systems Protection Board. Currently no formal, independent IG exists for either agency.

MSPB Watch is inviting any interested member of the public to form a citizen oversight council. Duties include researching applicable civil service laws and obtaining public information to determine whether OSC and MSPB are complying with these laws. Once formed, the Council would issue regular report cards on OSC’s and MSPB’s performance; make recommendations for reform; conduct “peer review” for any proposed legal or political campaigns to redress grievances; attempt to engage in formal dialogue with government officials; and provide support for any appropriate member initiatives.

Other initiatives could include “teach ins” to educate whistleblowers, federal employees, and the public about their rights under civil service laws.

Interested persons may contact David Pardo at dpardo at mspbwatch dot net for more information.

Dear Whistleblower and Advocate,

As you may know, President Obama nominated former Special Counsel Elaine Kaplan on March 19 for a judgeship on the U.S. Court of Federal Claims. This court, based in Washington, has jurisdiction over government contracts, vaccination fund claims, and other discrete areas. It does not review whistleblower/MSPB claims. The nomination is for 15 years, however it is not uncommon for Federal Claims judges to move on to higher profile positions. For instance, former Special Counsel Alex Kozinski left OSC in 1982 for the Court of Federal Claims, only to become a federal appeals judge on the Ninth Circuit. He is now Chief Judge of that circuit. Same with Randall Rader, the Chief Judge of the Federal Circuit (though he was never Special Counsel).

I don’t know how we all feel about Elaine Kaplan, but the public record, as well as personal anecdotes I’ve heard, are not good. My letter explains why.

I believe, as I explain in the letter, that a person who has made the decisions that Ms. Kaplan made should not be awarded with a judicial post. The Court of Federal Claims is not a high profile position, but it is a stepping stone to more influential positions. I plan to make my opposition heard at this level, and I ask you to join me if you agree.

If you have experiences of your own and can provide documentation to support it, please let me know. The letter is not set in stone. Also, feel free to send this to whomever you wish. I will be collecting signatures for the rest of the week or so.

There will also be an accompanying website that will collect all letters sent: http://thecaseagainstelainekaplan.wordpress.com/

Sincerely,
David Pardo
dpardo at mspbwatch dot net 

From Julia Davis’ LA Homeland Security Examiner:

My articles about disgraced former head of the Office of Special Counsel (OSC) Scott Bloch appear to be a thorn in his side. In an attempt to erase them from the Internet, Bloch is brazenly threatening to sue the webmasters featuring links to my reports. In February of 2013, Bloch pleaded guilty to a misdemeanor charge of injury to government property, related to his hiring of technicians with “Geeks On Call” to conduct the 7-level memory wipe of the computers at the OSC’s office, deleting whistleblower complaints and related computer files.

…

Bloch is currently attempting to use the said wit to eradicate my articles about him from online circulation by sending out threatening letters on his law firm’s letterhead. He is especially fond of the word “falsehoods,” stating in relevant part, “I direct your attention to the attached which contain falsehoods, cast me in defamatory light. They contain numerous falsehoods, intentional and gratuitous swipes at me and my tenure as Special Counsel that are false and defamatory, demonstrating actual malice. It continues to stand on the internet with its falsehoods. I write to demand that you remove these articles and blogs about me and my time as Special Counsel immediately. This is harmful to my professional reputation as a lawyer… Your demeaning personal attacks impute to me qualities that tend to injure me in my business… If you choose to ignore this and not remove the materials from your internet site and blogs and all caches, I will be forced to sue for an injunction and to seek damages… I will institute an action in Virginia and in Washington, D.C. against you for defamation and actual malice, together with damages and punitive damages. I will also seek damages for civil conspiracy to harm my business… If I determine through discovery that you have worked with others to do this, I will join them as well.”

Ms. Davis seems to have the support of Mark Zaid, “a prominent Washington, D.C. attorney who frequently represents whistleblowers in high profile cases.” Other whistleblowers and their supporters are sure to be interested in Bloch’s heavy-handed attempts to control speech. Here, for instance, are all my writings on Mr. Bloch. Like Ms. Davis, I stand by them and would be willing to defend them in court, even if Mr. Bloch fails to prosecute his conspiracy theories.

For now, I urge all whistleblowers to submit their victim impact statements in USA v. Scott Bloch by May 13 to:

Judge Robert L. Wilkins
333 Constitution Avenue N.W.
Washington D.C. 20001

Make sure to use the subject line: USA v. Scott Bloch, 1:13-cr-5, and abstain from giving out information (names, addresses) about third parties.

Ex-Special Counsel Scott Bloch* is due to be sentenced on May 13, 2013. The court can accept victim impact statements, but they must not contain information about third parties (this is likely what caused many statements to be taken off the docket two years ago). One statement is already on the docket. As you can see, it can take the form of a letter.

You have less than two months. If you don’t speak up now, you can’t complain if he walks away with a slap on the wrist. Tell the court how you feel, in your own voice. No NGO can do it for you.

*This wikipedia page details the many scandals plaguing Bloch’s tenure as the federal protector of whistleblowers. He pled guilty last December to destruction of government property by ordering three computers wiped clean. Previously, he pled guilty to contempt of Congress for essentially lying to Congress about ordering the computers wiped, but he since withdrew that guilty plea with the cooperation of the Justice Department. Emptywheel has more about the DOJ collusion angle.

Compare the following scenarios:

Scenario A:

1. Whistleblower A uncovers wrongdoing within an intelligence community agency that implicates classified information.
2. He tries to go to the Inspector General but is deterred upon finding out it’s essentially a trap.
3. He tries to go to Congress but is unsure how to do so without blowing his cover.
4. Unaware of any other options, he goes to the media, believing they can protect his identity.
5. He may or may not reveal any classified information, but some other violation (holding onto classified documents outside approved channels?) trips him up.
6. Coverage by the media results in internal investigations. He gets outed and threatened with legal action.
7. Lawyers at public interest groups swarm to him upon finding out he’s under threat of prosecution for blowing the whistle on state conduct.
8. Justice Department prosecution follows, maybe it succeeds, maybe it doesn’t.
9. Public interest lawyers use this opportunity to promote self in the media, use his case to raise funds with corporate-funded foundations, and offer platitudes about government tyranny while offering no advice to other whistleblowers who seek to avoid the same fate.
10. Future whistleblowers either clam up or encounter a similar fate.

Scenario B:

1. Whistleblower B comes across evidence of wrongdoing by intelligence community agency.
2. Knowing that an agency exists to accept classified disclosures of wrongdoing in a confidential manner, Whistleblower B goes to the Office of Special Counsel.
3. OSC refers disclosure directly to the intelligence committees in Congress and to the National Security Advisor.
4. Congress becomes aware of gross violations of civil liberties.
5. Whistleblower B comes under scrutiny in his agency, but since he broke no law, no prosecution follows.
6. Whistleblower B does come under some form of administrative retaliation, but only then does he go to the media with allegations of retaliation, without disclosing classified information.
7. He recounts the history of having gone to OSC and Congress.
8. OSC expresses concerns about the retaliation but admits it cannot protect this individual.
9. Congress also expresses concerns and flexes its power to pressure the president to put a stop to the retaliation.
10. Media coverage alternates between what the disclosures might be (and making sure they’re taken seriously by Congress, whatever they are, which leads to FOIAs, lawsuits, and legislative hearings), and taking a look at the lack of protections for national security whistleblowers.
11. Legislation to protect national security whistleblowers follows.

Now which scenario do you think applies today?

Now this is tricky, because these groups helped him navigate the treacherous waters of the mainstream media, with mixed results, during his prosecution and through his send-off to prison. So for John Kiriakou to say the following about groups like the Project on Government Oversight (and implicitly the Government Accountability Project), when they expect loyalty in return (Washington being a transactional town and all), is nothing short of astounding:

This comes just a few days after this author sent Mr. Kiriakou a letter* urging him to consider who should speak on his behalf. Where it gets complicated is that GAP currently manages his legal defense fund, which is helping to support his family. That should continue unabated, regardless what insights Mr. Kiriakou shares with the world that prove uncomfortable for GAP and its cohorts.

*This author does not take any credit for this development. From his perspective, it is just a welcome coincidence.