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Dissenters’ Digest for February 2013

1:58 pm in Uncategorized by MSPB Watch

Dissenters’ Digest takes a look at last month’s top stories covering whistleblowers, watchdogs, and government accountability.

Clear Conscience: U.S. Army whistleblower Bradley Manning pled guilty to 10 of 22 charges against him, offering a 35-page testimonial explaining why he released hundreds of thousands of diplomatic cables and other evidence of government misconduct to Wikileaks in January 2010.

Guilty of Purging Evidence: Former Special Counsel Scott Bloch pled guilty to erasing 3 government computers that may have contained whistleblower disclosures, retaliation complaints, and other sensitive memos. The charge may involve up to six months in jail.

30 Months in Prison: Ex-CIA spy John Kiriakou reported to prison to begin a 30-month sentence for disclosing the identity of an undercover CIA agent. Kiriakou came to prominence in 2007 for publicly reporting about the CIA’s torture program.

Below the Fold:

Dissenters’ Digest for January 2013

10:26 am in Uncategorized by MSPB Watch

Dissenters’ Digest takes a look at last month’s top stories covering whistleblowers, watchdogs, and government accountability.

CIA Whistleblower Sentenced: John Kiriakou, a former CIA officer who disclosed on national television that the government had engaged in torture, was sentenced to 30 months in prison on charges of divulging the identity of a covert officer.

Signing Statement Provokes Outcry: The federal whistleblower community spoke out almost unanimously against a presidential signing statement that interpreted whistleblower provisions in the National Defense Reauthorization Act of 2013 narrowly. For more, see additional coverage and fact check posts here and here.

Prosecutorial Overreach: Aaron Swartz, Internet pioneer and open society activist, took his own life while facing a prosecution over allegedly unauthorized computer activity. It is believed that the U.S. Attorney Carmen Ortiz’s heavy-handed tactics contributed to his suicide. (YouTube).

Retroactivity to be Argued: The Merit Systems Protection Board will hear arguments in a case that will determine whether the newly-passed Whistleblower Protection Enhancement Act may apply to conduct predating its passage or to cases pending at the time. Amicus briefs may be accepted until March 1.

Below the Fold:

Dissenters’ Digest for 2012

10:01 pm in Uncategorized by MSPB Watch

Dissenters’ Digest takes a look at last year’s top stories covering whistleblowers, watchdogs, and government accountability.

January

OSC Finds Retaliation on Air Force Base. The Office of Special Counsel submitted a report to the Air Force alleging that four whistleblowers at the Dover Air Force Base mortuary were retaliated against for disclosing mishandling of troop remains. OSC gave the Air Force the opportunity to review the report and respond. “If the Air Force does not respond or responds in a way that OSC finds insufficient or unreasonable, OSC can pursue disciplinary action against civilian employees before the Merit Systems Protection Board,” OSC said.

February

FDA E-mail Monitoring Causes Stir. Congressional representatives objected to allegations that whistleblowers at the Food and Drug Administration were subjected to electronic surveillance that captured their communications with Congress and the Office of Special Counsel. Senator Chuck Grassley and Rep. Darrell Issa asked the Special Counsel to investigate. OSC, which had been investigating allegations of retaliation against some of the FDA whistleblowers, expanded its investigation.

March

Congressional Appearances. MSPB Chair Susan Grundmann and Special Counsel Carolyn Lerner appeared before a Senate committee to discuss progress and challenges in their respective organizations. In a separate hearing, MSPB Member nominee Mark A. Robbins appeared headed for confirmation.

April

Torture Legality Questioned by State. The National Security Archive uncovered a 2006 State Department memo casting doubt on Justice Department arguments approving the CIA’s “enhanced interrogation techniques.” The author of that memo, Philip Zelikow, was a counselor to Secretary of State Condoleezza Rice. It is believed that the Bush Administration attempted to destroy all copies of the memo.

DOJ Coverup Exposed. The Department of Justice failed to notify defendants or their attorneys of possibly exculpatory evidence of flawed forensic procedures for years. FBI whistleblower Dr. Frederic Whitehurst disclosed improper procedures in the FBI crime lab almost 20 years ago, which led to a nine-year DOJ task force to determine if any defendants were wrongfully incarcerated. The DOJ task force “operated in secret and with close oversight by FBI and Justice Department brass–including [then-Attorney General Janet] Reno and [FBI Director Louis] Freeh’s top deputy–who took steps to control the information uncovered by the group.”

May

FAA Oversight Failures. In a rare move, the Office of Special Counsel combined seven whistleblower disclosures from FAA employees into one report to the President and Congress, citing an ongoing series of troubling safety disclosures by air traffic controllers and other FAA employees” which have not been rectified by the Department of Transportation.

June

Beyond Reproach. Efforts to pass the Whistleblower Protection Enhancement Act came under scrutiny after it was disclosed by the lead lobbyists that the bill would not contain jury trial provisions, a long-sought reform. The admission came after the Make It Safe Campaign Steering Committee objected to grassroots attempts to publicize an open letter to Congress which highlighted flaws in the bill. Moreover, these grassroots efforts noted that the Steering Committee had failed to engage the whistleblower community and the public in its lobbying activities, as well as practice transparency and accountability, the values it publicly champions.

Looking Backwards. President George W. Bush ignored a number of the CIA’s pre-9/11 warnings, according to new FOIA documents declassified and revealed this month.

Consciousness of Guilt. The Office of Special Counsel released a memo this month to the federal government urging agencies not to spy on whistleblowers, following allegations of improper surveillance by the FDA. Doing so, the memo said, might lead OSC to conclude that retaliation is afoot.

July

FDA Hit Piece. The Food and Drug Administration engaged in a classic character assassination campaign against the ringleader of the FDA 9, a group of scientist/whistleblowers who have been targeted for spying and harassment. The New York Times published what has been received as a biased, personality-focused hit piece, but not before the editorial board criticized the FDA for engaging in the spying.

August

Political Assylum. Ecuador President Rafael Correa granted Julian Assange asylum.

Looking Forward. The Justice Department ended its investigation into Bush-era torture with no charges.

September

National Security Creep. The month began with a setback for federal employees with a ruling by the Federal Circuit that allows agencies to designate employees’ positions as “non-critical sensitive” and thereby strip away any civil service protections.

House Passes WPEA. The House of Representatives passed the Whistleblower Protection Enhancement Act by unanimous consent. The measure did not protect national security whistleblowersprovide jury trials, or protect whistleblowers terminated under the Bush and Obama administrations. These provisions were under serious consideration, and some of them were even passed by the Senate in May, but lack of fearless, transparent advocacy by the lead lobbyists was to blame for a bill that fell short of what’s needed. Further, efforts to raise awareness among the federal whistleblower community about the lobbyists’ questionable tactics largely fell on deaf ears, raising questions about the extent to which the liberal good government establishment has “cornered the market” by co-opting its victims and suppressing dissent.

October

Paper Protections For Intelligence Employees. President Obama signed a presidential policy directive extending whistleblower protections to national security and intelligence employees.  The directive–which does not grant employees any new rights–instructs agencies to establish a review process, within 270 days, that allows employees to appeal actions in conflict with the directive that affect their access to classified information.

MSPB Regulatory Review. The Merit Systems Protection Board finalized a massive rule change. Among the changes was the regulatory codification of 5 U.S.C. 7121(g), a provision Congress passed in 1994 that limits whistleblowers’ rights. That provision forces whistleblowers who suffer retaliation to choose between fighting the adverse personnel action directly at MSPB or filing a complaint with the Office of Special Counsel and giving up some rights.

November

WPEA Becomes Law. After a 13-year run of last-minute stumbles, backroom negotiations, unnecessary compromises, and a mounting heap of ruined federal careers, whistleblowers will have marginally better protections for blowing the whistle on fraud, waste, and abuse in the federal government. The law lags behind private sector counterparts, which allow whistleblowers to challenge retaliatory conduct before a jury of one’s peers. The law does call for the Government Accountability Office to study the need for jury trials, in two years. Other provisions include strengthening the ability of the Office of Special Counsel to bring disciplinary actions against retaliators.

December

Kafkaesque Gag Order. The Office of Special Counsel alleged in an administrative court that top officials in the Commerce Department Office of Inspector General threatened subordinate employees with negative performance reviews if they did not sign non-disclosure agreements that barred them from exercising their rights to blow the whistle and petition Congress. “Because the act of disclosing the gag provision may itself be prohibited by the harsh terms of the agreements, OSC is protecting the employees’ identities,” it said.

Dissenters’ Digest for November 2012

1:26 pm in Uncategorized by MSPB Watch

Dissenters’ Digest takes a look at last month’s top stories covering whistleblowers, watchdogs, and government accountability.

WPEA Becomes Law. After a 13-year run of last-minute stumbles, backroom negotiations, unnecessary compromises, and a mounting heap of ruined careers, whistleblowers will have marginally better protections for blowing the whistle on fraud, waste, and abuse in the federal government. The law lags behind private sector counterparts, which allow whistleblowers to challenge retaliatory conduct before a jury of one’s peers. The law does call for the Government Accountability Office to study the need for jury trials, in two years. Other provisions include strengthening the ability of the Office of Special Counsel to bring disciplinary actions against retaliators.

Draining the Swamp. A promising new campaign to clean up the corrupting influence of money in politics vows to “unseat” politicians who refuse to support the American Anti-Corruption Act. If successful, represent.us could become the benchmark against which all public interest advocacy campaigns would be measured.

Nation of Laws. President Obama planned to accelerate rulemaking for his drone kill list program in case Mitt Romney were elected president but has since slowed it down, raising questions about the extent to which the rule of law may be suspended when a Democrat is in the White House.

Below the Fold:

  • The Merit Systems Protection Board’s revised regulations, made final in October, are now in effect.
  • Former MSPB chair Beth Slavet was appointed director of OSHA’s whistleblower protection office.
  • A Cisco executive vowed to “make” a whistleblower his “hobby” after the whistleblower disclosed a memo detailing Cisco’s apparent overcharging of California State University.
  • CIA Director David Petraeus resigned after admitting he maintained an affair with a biographer. The scandal arose after the FBI investigated Petraeus’ personal email account, raising concerns about the government’s surveillance powers and the media’s veneration of military generals.
  • U.S. Army whistleblower Bradley Manning will take some responsibility for releasing files to Wikileaks in exchange for reduced charges. After 917 days in captivity, Manning recently testified on his pre-trial detention, the first time the public has heard from him since his arrest.
  • The National Whistleblowers Center fired almost its entire staff.
  • The Senate Judiciary Committee, seeking to update the 1986 Electronic Communications Privacy Act, approved legislation to require police to get a warrant before searching emails or other electronic files.
  • Senator Chuck Grassley asked Attorney General Eric Holder to let the DOJ inspector general review FBI whistleblower protections, citing the DOJ’s “horrendous” record of rectifying FBI whistleblower cases.
  • The National Archives blocked ”Wikileaks” as a search term from its public search engine.
  • In the first two weeks of November, until its passage by Congress on Nov. 13, there were 7 articles about the WPEA, as measured by Google News. That brings the total for the previous 60 days to 127. By contrast, NWC’s Sept. 11 press conference about the $104 million reward to UBS whistleblower Bradley Birkenfeld commanded almost 300 articles in one day.

Dissenters’ Digest for September 2012

1:50 pm in Uncategorized by MSPB Watch

Falling Whistles

(Photo: JNW Photography/flickr)

Dissenters’ Digest takes a look at last month’s top stories covering whistleblowers, watchdogs, and government accountability.

National Security Creep. The month began with a setback for federal employees with a ruling by the Federal Circuit that allows agencies to designate employees’ positions as “non-critical sensitive” and thereby strip away any civil service protections.

Politicizing the Workplace. A Washington watchdog shed light on potential Hatch Act violations by FAA officials who instructed employees that voting for the GOP–and the attendant budget cuts that that would supposedly involve–might cost them their jobs.

$104 Million. UBS whistleblower Bradley Birkenfeld received a $104 million IRS award, the largest ever, for his help in bringing many tax cheats to justice. Despite his actions, Birkenfeld spent 40 months in jail. However that sentence may have been based on false information.

House Passes WPEA. The House of Representatives passed the Whistleblower Protection Enhancement Act by unanimous consent. The Senate is due to consider the measure after the November elections. The measure passed by the House will not protect national security whistleblowersprovide jury trials, or protect whistleblowers terminated under the Bush and Obama administrations. These provisions were under serious consideration, and some of them were even passed by the Senate in May, but lack of fearlesstransparent advocacy by the lead lobbyists is to blame for a bill that falls short of what’s needed. Further, efforts to raise awareness among the federal whistleblower community about the lobbyists’ questionable tactics largely fell on deaf ears, raising questions about the extent to which the liberal good government establishment has “cornered the market” by co-opting its victims and suppressing dissent.

Below the Fold:

Dissenters’ Digest for July 22–August 4

1:32 pm in Uncategorized by MSPB Watch

ATF Director B. Todd Jones

Dissenters’ Digest takes a look back at news stories covering whistleblowers, watchdogs, and government accountability. Look for it every other Saturday evening at www.dissentersdigest.com.

Is the tide turning on whistleblower rights? There are signs of hope. First, ATF director B. Todd Jones clarified his remarks on what seemed to be a threat to his employees not to blow the whistle outside the chain of command. Now, Jones is reaffirming ATF employees’ rights under the Whistleblower Protection Act.

Second, a psychologist who blew the whistle about child abuse on an Indian reservation and was harassed for it is no longer under duress. Congressional and media pressure has resulted in a full reversal of several adverse actions taken against him by the Indian Health Service.

Not so fast: The Food and Drug Administration is apparently engaging in a classic character assassination campaign against the ringleader of the FDA 9, a group of scientist/whistleblowers who have been targeted for spying and harassment. The New York Times served up what has been received as a biased, personality-focused hit piece, but not before the editorial board criticized the FDA for engaging in spying. In some ways, this ambiguity completely reflects how people feel about whistleblowers. Still, NYTimes, wtf?

Below the Fold:

–Department of Justice HR officials are implicated in a nepotism ring.

–Open government groups, led by the Government Accountability Project, issued rules for prior restraint of whistleblowers’ speech. I have called for the lead lobbyist’s resignation after the end of this congressional session.

–A Senate bill would provide new protections for anti-trust whistleblowers.

–UBS whistleblower Bradley Birkenfeld, who helped the IRS uncover the biggest tax fraud in U.S. history, has been released from prison after 30 months.

Send tips to dissent@dissentersdigest.com.  

Dissenters’ Digest for July 8-21

10:00 am in Uncategorized by MSPB Watch

Dissenters’ Digest takes a look back at news stories covering whistleblowers, watchdogs, and government accountability. Look for it every other Saturday evening at www.dissentersdigest.com.

Chilling Effect: Acting ATF Director B. Todd Jones spoke in an internal video to ATF employees where he appeared to admonish his subordinates not to blow the whistle outside the chain of command, lest they face “consequences.” He did not mention they have the right to do so under numerous laws, including the Whistleblower Protection Act of 1989 and the Lloyd-La Follette Law of 1912, which allows civil servants to communicate with Congress without prior restraint. Sen. Chuck Grassley and Rep. Darrell Issa are investigating.

If Nixon had Keylogging Software: The New York Times reported last week that the Food and Drug Administration’s suspected surveillance of whistleblowers is bigger than previously believed, and includes tracking of sources outside the agency.

The FDA reportedly has developed an “enemies list” to push back against negative coverage of its oft-criticized review of drugs and medical devices. The list includes not only scientists employed within the FDA, but also congressmen, journalists, and outside medical researchers. These efforts have resulted in the collection of some 80,000 pages of documents that include private emails to Congress, draft whistleblower retaliation complaints, and communications with journalists and attorneys.

Senator Chuck Grassley took the lead in expressing outrage against what he previously called FDA’s “Gestapo” tactics.

Grassley’s review includes a demand for the legal memo authorizing the spying campaign, which began in mid-2010. Expect the focus to shift to FDA’s past and current chief counsels.

What’s In Your Wallet?: The Consumer Finance Protection Bureau announced its first enforcement action: a $210 million settlement with Capital One for deceptive marketing practices.

The allegations include misleading consumers about the benefits of Capital One products, which were not always depicted as optional. Some consumers were knowingly sold products they could not utilize, and others succumbed to “high-pressure tactics” to buy add-ons like payment protection and credit monitoring. In some instances, Capital One enrolled consumers in products without their consent, or led them to believe there was no additional cost.

Capital One will fully refund its customers at a cost of $140 million and pay another $25 million to the CFPB and another $35 million to the Office of the Comptroller of the Currency, totaling $210 million.

In other news, in-house corporate attorneys are concerned about CFPB enforcement actions.

Full disclosure: I have a Capital One card in my wallet.

Below the Fold:

–An environmental watchdog takes a look at Governor Romney’s anti-civil service track record in Massachusetts.

–24 percent of Wall Street executives believe they need to break the law to succeed; 16 percent would commit insider trading if they could get away with it, according to a survey done by the whistleblower law firm Labaton Sucharow.

–The Justice Department and the FBI are reviewing thousands of criminal cases to determine whether any defendants were wrongly convicted because of flawed forensic evidence. The whistleblower who first brought this to light almost 20 years ago will be monitoring progress. Legislation has already been introduced.

–A Navy whistleblower is now in charge of investigating whistleblower cases in the Defense Department.

–Penn State officials knew.

–A federal district court judge blew the whistle, in a way, about coercive plea bargain tactics that demand waiver of appeal rights in lieu of going to prison on unreasonably heavier charges.

–Some news outlets let political operatives approve quotes before they appear in print. Why not also let them write the articles?

FDA isn’t the only agency snooping on its employees.

Treasury officials, unauthorized gifts, prostitutes, and golf.

–The American Federation of Government Employees reached an agreement with the TSA to provide TSA officers personnel appeal rights at the Merit Systems Protection Board.

–The Equal Employment Opportunity Commission approved an 18-year-long race discrimination class action lawsuit brought by U.S. Marshals against the U.S. Marshal Service.

–The White House issued a memo to strengthen the rights of service members who return home and seek to reintegrate into the working force.

Send tips to dissent@dissentersdigest.com.

Dissenters’ Digest for June 24–July 7

4:40 pm in Uncategorized by MSPB Watch

(photo: Serguey / wikimedia)

Dissenters’ Digest takes a look back at news stories covering whistleblowers, watchdogs, and government accountability. Look for it every other Saturday evening at www.dissentersdigest.com.

See You In Court: House Republicans vowed to take Attorney General Eric Holder to court over documents withheld from Congress in its Fast and Furious scandal investigation.

Defiant: Ignoring a surrender order by the London police, Julian Assange has remained in the Ecuador embassy while awaiting President Correa’s decision on his political asylum request.

Abstention: The Justice Department won’t prosecute Attorney General Holder following Congress’ historic contempt vote.

Below the Fold:
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Former Office of Special Counsel staffer looks backwards

7:29 am in Uncategorized by MSPB Watch

From a comment to Joe Davidson’s Under Carolyn Lerner, special counsel office is doing its job now, observers say, in The Washington Post (June 28, 2012):

NIshimoto

6/29/2012 9:19 PM EDT

I quit OSC in disgust in 1983 after the selling out of the agency by Reagan’s appointee (still hard to say his name, now a federal judge) and MSPB chief judge Ruth Prokop’s hostility toward the concept of whistleblower protection and against OSC itself. Great attorneys and investigators had been hounded into oblivion when lucky – but into undeserved disgrace for most.

I hope Carolyn Lerner has exorcised those ghosts. Kudos and appreciations to her for her accomplishments.

To NIshimoto and everyone else: stay tuned for Dissenters’ Digest for 1982 and ’83.

(By the way, that Reagan appointee was Alex Kozinski, who is now chief judge of the U.S. Court of Appeals for the Ninth Circuit.)

Dissenters’ Digest for June 10-23

3:00 pm in Uncategorized by MSPB Watch

Stonewalled, Sen. Chuck Grassley (R-IA)

Dissenters’ Digest takes a look back at news stories covering whistleblowers, watchdogs, and government accountability. Look for it every other Saturday evening at www.dissentersdigest.com.

Contempt: A House committee voted to hold Attorney General Eric Holder in contempt for refusing to submit documents in connection with the Fast and Furious gunwalking scandal. President Obama invoked executive privilege, for the first time, to shield the documents from Congress. The measure may soon be presented to the House for a final vote. Meanwhile, Democrats are decrying the move as a political “witch hunt.”

Stonewalled: Senator Chuck Grassley is getting stonewalled by the Food and Drug Administration over an inquiry that it’s been spying on federal whistleblowers. The Senate and related House investigations were sparked by a lawsuit filed by six FDA whistleblowers who were allegedly targeted for surveillance. The National Whistleblowers Center is representing them in court. Relatedly, the Office of Special Counsel, which is also investigating the FDA over the same matter, released a memo this week to the federal government, urging agencies not to spy on whistleblowers. Doing so, the memo said, might lead OSC to conclude that retaliation is afoot.

Looking Backwards: President George W. Bush ignored a number of the CIA’s pre-9/11 warnings, according to new FOIA documents declassified and revealed this week.

Cover-Up: An Army Lt. General is accused of blocking a corruption probe in Afghanistan to help President Obama’s re-election.

Below the Fold:
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