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White House Admits NSA Disclosures Raise “Legitimate Questions” for U.S. Allies

5:51 pm in Uncategorized by MSPB Watch

From The Guardian:

The White House conceded on Monday that revelations about how its intelligence agencies have intercepted enormous amounts of French phone traffic raised “legitimate questions for our friends and allies”.

In a statement released after a phone call between Barack Obama and his counterpart, François Hollande, the White House made one of its strongest admissions yet about the diplomatic impact of the disclosures by the former NSA contractor Edward Snowden.

The French government had earlier summoned the US ambassador in Paris on Monday to demand an urgent explanation over claims that the National Security Agency had engaged in widespread phone and internet surveillance of French citizens.

The French daily Le Monde published details from the NSA whistleblower Edward Snowden, suggesting the NSA had been intercepting French phone traffic on what it termed “a massive scale”.

Well, of course. This was obvious to anyone able and willing to recognize the significance of Mr. Snowden’s disclosures to the public interest, as well as the fact that he, like many whistleblowers, was shut out of the democratic process because of the failures of internal channels and whistleblower protections.

At the risk of inflaming passions in the whistleblower community, it bears asking: will the thought leaders in whistleblower circles who got it so very wrong about Mr. Snowden own up to their errors in judgment?

Fact Checking the President on Edward Snowden and Whistleblower Protections

10:15 pm in Uncategorized by MSPB Watch

For a copy of PPD-19, click here.

For information about Congress’ role in stripping whistleblower protections for intelligence community contractors in December 2012, click here.

Markos Moulitsas’ Ugly, Reverse-Racist Smear

12:19 am in Uncategorized by MSPB Watch

Here’s the Daily Kos founder on the Snowden revelations:

I don’t give a shit (183+ / 0-)

Seriously, I just don’t care.

NSA spying is bad! So is stop and frisk. So is splitting up families by deporting children to countries they’ve never been to and don’t speak the language. So is harassing American muslims.

Government overreach is bad. But to act like having the government track who you call is the height of government abuse is a very white privileged view of the privacy issue.

But as for Greenwald and Snowden? Seriously, I don’t give two shits.

(Emphasis mine.) Please, Mr. Moulitsas, tell us, what is the proper, non-privileged, multi-cultural view of the “privacy issue”? Is it one that stays within the confines of what’s allowed by the Democratic Party? Is it one that is relevant to the war on women, or voting rights, or immigration, but ignores the collapse of the rule of law and the justice system (which is far from a “white privileged” issue)? Because it seems to me that the war on whistleblowers and civil liberties is not a concern to this administration, as those issues challenge its legitimacy and unfettered discretion. Neither is it a concern to you, apparently.

It was to this guy, however. Remember him, from 2007?

Obama Transition Website Goes Down, Removing Inconvenient Campaign Promise to Protect Whistleblowers

9:37 am in Uncategorized by MSPB Watch

From Sunlight Foundation (via emptywheel):

Sunlight Foundation discovers the Obama Administration has removed access to his 2008 campaign promises from the White House website. It suggests one of the promises Obama may want to hide has to do with his support for whistleblowers.

While front splash page for for Change.gov has linked to the main White House website for years, until recently, you could still continue on to see the materials and agenda laid out by the administration. This was a particularly helpful resource for those looking to compare Obama’s performance in office against his vision for reform, laid out in detail on Change.gov.

According to the Internet Archive, the last time that content (beyond the splash page) was available was June 8th – last month.

Why the change?

Here’s one possibility, from the administration’s ethics agenda:

Protect Whistleblowers: Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled. We need to empower federal employees as watchdogs of wrongdoing and partners in performance. Barack Obama will strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government. Obama will ensure that federal agencies expedite the process for reviewing whistleblower claims and whistleblowers have full access to courts and due process.

It may be that Obama’s description of the importance of whistleblowers went from being an artifact of his campaign to a political liability.

Emptywheel notes that June 8–the last day the content of Change.gov was available–was two days after Edward Snowden first disclosed wrongdoing by NSA.

Why Did Congress Add an Intelligence Community Loophole to the Contractor Whistleblower Protections in NDAA Bill?

3:00 pm in Uncategorized by MSPB Watch

The National Whistleblowers Center is on record that Department of Defense contractors already had access to jury trials, and that Section 827(e) of the NDAA Bill, the IC loophole, (now codified at 41 U.S.C. 4712(e)) was a new provision that did not previously exist in the law.

So why did it get tacked on to a bill supposedly enhancing rights for government contractors who blow the whistle?

Here’s a relevant timeline of events related to NDAA lobbying:

  • Fourth Quarter of 2012: The Government Accountability Project lobbies Congress for passage of H.R. 4310 (the NDAA bill).
  • Monday, Dec. 10, 2012: Via email, GAP solicits signatures for an organizational petition letter (.docx).
  • Monday, Dec. 17: GAP emails the signatories to the petition letter, saying that “[t]he following has not been publicly announced yet, but we have been informed that the federal contractor provision – through our advocacy and staff negotiations – has overcome opposition.” (Emphasis added.)
  • Tuesday, Dec. 18: A House/Senate conference approves section 827(e), stripping protections for intelligence community contractors.
  • Wednesday, Dec. 19: GAP asks the signatories to hold off on publicizing the petition letter.
  • Wednesday, Dec. 19: NWC issues a “Take Action” alert, both via email and a website announcement, for the public to “urge Congress to protect National Security Whistleblowers.”
  • Friday, Dec. 21: Congress passes the NDAA bill with the loophole intact.
  • Friday, Dec. 21: GAP praises Congress for its action but also criticizes the House Permanent Select Committee on Intelligence for insisting on inclusion of the loophole.
  • Monday, Dec. 24: GAP emails members of the whistleblower community with news of the bill’s passage.
  • Wednesday, Jan. 2: President Obama signs the NDAA bill, issues a signing statement that concerns some members of Congress and divides GAP.

Please note: this bill would not have protected Edward Snowden, even assuming the loophole was not enacted and he used approved channels, because the bill takes effect only on July 1, 2013 (see Sec. 827(i)) and applies to contracts and task orders entered on or after that date.

But this bill also does nothing to protect others who are concerned, as Snowden was.

The Newly-Passed Federal Contractor Whistleblower Protection Law Would Not Have Helped Edward Snowden

7:44 pm in Uncategorized by MSPB Watch

Last December, Congress passed (and the President signed), the National Defense Authorization Act of 2013. Contained in that bill was section 828, now codified at 41 U.S.C. 4712, which, beginning July 1, 2013, will protect disclosures made by government contractors to any member of Congress, an Inspector General, the GAO, a contract oversight employee in an agency, authorized DOJ or law enforcement agencies, a court or grand jury, or a management official at the employing contractor with authority to investigate wrongdoing.

However, and this is a big however, there is an exception for “any element of the intelligence community, as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a (4))” or to

any disclosure made by an employee of a contractor, subcontractor, or grantee of an element of the intelligence community if such disclosure—

(A) relates to an activity of an element of the intelligence community; or
(B) was discovered during contract, subcontract, or grantee services provided to an element of the intelligence community.

Congress inserted the exception last December, as described here.

Was there a pre-existing avenue to disclose wrongdoing to an Inspector General or Congress? Perhaps, as the NDAA builds upon 10 U.S.C. 2409, which covers contractors on a “Department of Defense contract.” Someone more versed in these issues would be able to clarify if NSA contractors are covered by this provision.

I suspect we will learn much about Mr. Snowden’s disclosures and whether they check off this legal box or that in the days and weeks to come. However, I don’t think that’s what’s really at issue here. At it’s heart, Mr. Snowden’s courageous act of civil disobedience challenges this country’s decline into despotism. It’s all the more striking that he did it with likely no legal protections at all, as if nothing had changed between now and the days of the Pentagon Papers disclosures, over 40 years ago.

Letter from Loretto: John Kiriakou Blows the Whistle on Compromised Washington Watchdogs

12:45 pm in Uncategorized by MSPB Watch

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:

No one knows this better than John Kiriakou, the CIA agent who reported to federal prison two weeks ago for blowing the whistle on the agency’s use of torture. During an interview at an Arlington, Va., coffee shop, Kiriakou said the time has come for Washington watchdog groups—organizations like Public Citizen, Project on Government Oversight, Citizens for Responsibility and Ethics in Washington, and others—to admit that President Obama hasn’t come close to making good on his promise to make government more transparent and accountable.

“Dan Ellsberg. He called me again last night,” said Kiriakou, referring to the man who in 1971 leaked the Pentagon Papers and opened the world’s eyes to the United States’ long involvement in Vietnam. “We talk about this all the time. He keeps asking me, ‘Where is the outrage? If this were a Republican administration, people would be in the streets, right? We would be marching in the streets. But people cut Obama a break to the point of irrationality.’ ”

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.

What’s Missing from the Adulatory Coverage of Obama’s Whistleblower Protections

2:01 pm in Uncategorized by MSPB Watch

Several articles have emerged that contain praise from non-profit groups toward President Obama for taking steps to protect whistleblowers, albeit at a time when more whistleblowers are prosecuted by his administration than ever before. The coverage goes something like this:

Obama’s Justice Department is prosecuting a number of whistleblowers under the Espionage Act.

A government secrecy expert opines that this is unprecedented.

The article mentions Obama’s efforts to expand whistleblower protections through legislation or executive action.

Non-profit groups such as the Government Accountability Project and the Project on Government Oversight applaud Obama for doing more than any other president in history to protect whistleblowers.

What’s missing, however, is any discussion that such steps are mandated by law, specifically 5 U.S.C. 2301(c), enacted by the Civil Service Reform Act of 1978:

(c) In administering the provisions of this chapter—

(1) with respect to any agency (as defined in section 2302 (a)(2)(C) of this title), the President shall, pursuant to the authority otherwise available under this title, take any action, including the issuance of rules, regulations, or directives; and

(2) with respect to any entity in the executive branch which is not such an agency or part of such an agency, the head of such entity shall, pursuant to authority otherwise available, take any action, including the issuance of rules, regulations, or directives;

which is consistent with the provisions of this title and which the President or the head, as the case may be, determines is necessary to ensure that personnel management is based on and embodies the merit system principles. [Emphasis added.]

Key among those “merit system principles” is the protection of whistleblowers.

So is it a fact that Obama has ”done more to affirmatively protect whistleblowers than any other president,” as POGO’s Angela Canterbury recently stated? Yes.

However, it is not out of benevolence or favored policy, but his constitutional duty to “take care that the laws be faithfully executed.” The fact that a president is finally executing a 1978 law should not be news or grounds for applause. We elect presidents to execute the laws.

What’s newsworthy is why it took 35 years to get to this point.

Will better whistleblowing laws begin at the bottom?

10:01 am in Uncategorized by MSPB Watch

The Bush/Gore/Nader spoiler debate is taking place again, this time in the shadow of whether people of conscience can vote for Obama. Pentagon Papers whistleblower Daniel Ellsberg recently urged people in swing states to vote for Obama over a third-party candidate because the alternative is worse (this is the “Lesser of Two Evils” argument, or LOTE).

An array of tin whistles

Photo: Gordon Wrigley / Flickr

Glenn Greenwald wrote about this issue today, here. The comments are interesting, as are the article and comments to this piece by Matt Stoller, who is urging people to vote against Obama. The commenters discussed the merits of LOTE voting and whether voting for a third-party candidate is viable and would send a strong enough message.

Then one commenter said the following, which stood out for me:

Change does not come at the top. It comes from your Selectmen, your County Commissioners, your Sherifs. That is where they create the Bernie Sanders. The ones that can Make a Difference.

Putting aside the issue of presidential politics, will better whistleblowing legislation take hold if up-and-coming local legislators–tomorrow’s national politicians–were pressured to support good legislation at the local and state levels?

What if there was a candidate clearinghouse that rated local and state candidates on their commitment to ethical conduct in government? Local municipalities and state governments need whistleblowing legislation, and the legislators that oversee these institutions become congressmen in a number of years. And whistleblowers can be found around the country.

Why not get involved and make the Congress of a future session friendly to whistleblowers on Day 1?

As far as I can tell, the National Whistleblowers Center is the only place that comes close to doing this, but on a presidential level. Here’s NWC’s questionnaire to then-candidate Barack Obama.

Another alternative is having whistleblowers and activists get involved locally and organize, organize, organize. And to put my money where my mouth is, that’s exactly what I’ll be doing in my own town of Alexandria, Virginia. Truth be told, I don’t even know what the local and state whistleblowing laws are here. 

I urge anyone reading this and so motivated to do the same in your own town and state.

POGO embarrasses watchdogs everywhere with sycophantic Obama email

6:36 am in Uncategorized by MSPB Watch

whistleblower

(Photo: ElectronicFrontierFoundation/flickr)

I woke up this morning to the following embarrassment:

The work we do at POGO isn’t easy—our efforts to protect whistleblowers are particularly hard-fought. We have spent years seeking specific protections for national security and intelligence community workers, and there has been enormous resistance. Finally, we have been heard!

Sign our petition saying thank you and urging further work on whistleblower protections.

On October 10, President Obama issued a historic directive that for the first time provides national security and intelligence community workers with protections against retaliation when they legally report waste, fraud, and abuse. Given our strong criticism of the Administration for the prosecutions of national security whistleblowers, we wanted to be sure to herald this unprecedented policy that includes even more of our recommendations than we had hoped.

Please Sign Our Petition to President Obama.

Of course, the directive is not a panacea, and the strength of the policy will depend on how it works in practice. The President directs agencies to create procedures for internal review of claims by the Inspectors General, which means we need to push for the strongest procedures and rights in practice.

It’s hard to satisfy a watchdog! Still, it’s not often that we can celebrate a victory like this. We are so often demanding, pushing, and criticizing—it’s very important that we also give thanks when it is due.

This isn’t the first time POGO has resorted to flattering those they’re supposed to hold accountable. In 2011, they gave a “transparency award” to Obama, only to meet resistance and criticism by real whistleblowers and then have the administration use that award as a shield against criticism. Expect the same thing to happen now – rather than demand Obama to faithfully execute the law, POGO thanks him for it. Which is fitting for this administration’s view of justice as charity.

POGO calls itself a “watchdog.” It is not. A better term is a lapdog engaging in partisan politics before an election. Shameful.