This is the conclusion derived after a frenzy of research, discussion, and contentious debate with an OSC official over the past couple of days.
To sum up: The Civil Service Reform Act of 1978 authorized OSC to accept classified disclosures from all agencies, including intelligence agencies, in 1978. Some classified disclosures may have been sent to OSC, according to a senior OSC official, but he would not elaborate if they were from intel agencies.
However, a number of years ago, the chief of OSC’s Disclosure Unit, Catherine McMullen, told a fellow whistleblower, Joe Carson, that OSC will not accept disclosures from agencies exempt from its prohibited personnel practice (PPP) jurisdiction by 5 U.S.C. 2302(a)(2)(C). In other words, if you were retaliated against and you work at CIA, NSA, FBI, etc., OSC does not have jursidiction over your PPP complaints. However, McMullen (or her predecessor or superior), expanded this to mean that OSC cannot accept disclosures from CIA, NSA, FBI, etc. This is contrary to law.
Additional evidence: this MSPB special study about the Tennessee Valley Authority. TVA, much like NSA, CIA, etc., at the time this report was issued, was exempt from OSC’s PPP jurisdiction (a/k/a the “whistleblower protections” below). Check out page 44:
- Tennessee Valley Authority special study (page 44)
Why did MSPB conclude that because OSC could not protect TVA employees from reprisal, TVA employees could not complain about violations of law? The two functions – protection from PPPs and processing of whistleblower disclosures – do not depend on one another. Perhaps MSPB spoke with OSC, which at the time of the report was an autonomous office within MSPB, and derived that conclusion from it.
More evidence: members of the national security community are not aware of OSC being available to process their disclosures. At least one prominent whistleblower who sacrificed much swears that if he could have gone to OSC, he would have, and he conferred with whistleblowing attorneys before his ordeal began.
Another whistleblower did not go to OSC, did not even know about OSC, and only later did MSPB impose the requirement to go to OSC to people in his situation:
The MacLean decision means that, in some cases, the [Sensitive Security Information] disclosure is protected only if it is made to the agency’s Inspector General, to another employee designated by the head of the agency to receive such disclosures, or to the Office of the Special Counsel.
More evidence: neither OSC’s regulations, nor their website, nor their OSC Form 12 clarifies how it will handle processing of classified information (other than say it will direct the information to Congress and the National Security Advisor). OSC’s annual reports make no mention of any disclosures of classified information.
Which brings us to today’s Office of Special Counsel. Joe Carson raised these concerns to Carolyn Lerner via email recently, which prompted a denial by a subordinate, who said that
OSC has instituted several precautions to handle classified disclosures, including, but not limited to, the use of a locked safe to keep any such materials, and limiting access to such materials to employees that have the right type of clearance. In addition, OSC will soon place additional information on its website about the submission of classified disclosures.
However, after several discussions via email and a telephone conversation between me and the OSC official, Carson wrote to this official that
I can assure you that creating, storing, sharing and transmitting classified information is highly regulated – special phones, special fax machines, special printers, double safes, double (or more) envelopes, special markings, “need to know” and authorized access, etc.
OSC simply does not have the physical capability to accept disclosures containing many, if not most, types of classified information and never has. Dave Pardo told me that you told him that OSC receives classified disclosures by meeting with whistleblower physically in its DC office. What if the whistleblower is not in DC? (For example, say she (the whistleblower) works for CIA as a NOC in mid-east? Does OSC have a room that receives regular screening for presence of “bugs”? Such rooms exist in Dept. of Energy facilities in Oak Ridge, to allow discussion of some types of highly classified information.
Simply put, the indicia of OSC handling highly classified disclosures from intelligence community employees is not there. Moreover, the answer to this question should not be this difficult to pin down.*
What is really going on?
I think, and this is something shared by Carson, that OSC has been turning away whistleblowers from intelligence agencies, and when confronted about this (and other issues), OSC officials stop “acting in the interests of employees” and faithfully implementing the law, and begin acting as attorneys who must zealously advocate for their client, the Office of Special Counsel. This involves minimizing adverse consequences for any liabilities or wrongdoing, protecting one’s turf, and evading accountability. We’ve seen this kind of behavior from the Special Counsel herself. Now we see it from her subordinates.
To make matters worse, legal ethics don’t really have an answer for the dilemma encountered at OSC.
To be continued.
*Is there a chance that I’m wrong about this and this is a misunderstanding? Yes. But I am raising these concerns based on a reasonable belief that something is wrong at OSC, having witnessed too many whistleblowers throw away their careers or get prosecuted by Obama’s DOJ and not even know that this option exists.