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No Deterrence, No Transparency?

7:57 am in Uncategorized by MSPB Watch

Could a contributing factor to the 28 percent rise in FOIA litigation during President Barack Obama’s first term in office be that a little-known provision in the Freedom of Information Act has not been utilized?

That provision, found at 5 U.S.C. 552(a)(4)(F), calls for three actors to hold FOIA abusers accountable:

the courts, which may issue a finding that the circumstances surrounding an improper withholding “raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding”;

the Special Counsel, which “shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding”; and

the Attorney General, which has the responsibility of notifying the Special Counsel each time a court makes the determination above.

The Attorney General also has the responsibility of submitting an annual report to Congress on the number of times this has happened in the past year (this is a new provision, added by the OPEN Government Act of 2007).

I recently made a FOIA request to the Justice Department for these reports. Here is its response:

Please be advised that the Department of Justice annually submits to Congress a FOIA Litigation and Compliance Report, in compliance with 5 U.S.C. § 552(a)(4)(F)(ii)(II). These reports are made available online at http://www.justice.gov/oip/reports.html#s3. For your information, once the calendar year 2012 report is submitted to Congress, it will be posted on this same website. Additionally, please note that information regarding notifications from the Attorney General to the Office of Special Counsel is provided on the final page of the report.

If you follow that link, and track the reports for 2008-2011, here’s what you will find:

2008: “During 2008, the United States courts made no written findings pursuant to 5 U.S.C. § 552(a)(4)(F)(i). Accordingly, no notification of the Special Counsel was necessary.”

2009: “During 2009, the United States courts made no written findings pursuant to 5 U.S.C. § 552(a)(4)(F)(i). Accordingly, no notification to the Special Counsel was necessary.”

2010: “During 2010, the United States courts made no written findings pursuant to 5 U.S.C. § 552(a)(4)(F)(i). Accordingly, no notification of the Special Counsel was necessary.”

2011: “During 2011, the United States courts made no written findings pursuant to 5 U.S.C. § 552(a)(4)(F)(i). Accordingly, no notification to the Special Counsel was necessary.”

So there you have it. No judicial findings since the OPEN Government Act was passed. No Special Counsel investigations. No discipline. And no deterrence. Is it any wonder we’re witnessing a 28% increase in FOIA lawsuits?

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 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:
Read the rest of this entry →

Dissenters’ Digest for May 20-June 9

4:00 pm in Uncategorized by MSPB Watch

(photo: caribbeanfreephoto/flickr)

Dissenters’ Digest takes a look back at the week’s stories covering whistleblowers, watchdogs, and government accountability. Look for it every other Saturday evening at www.mspbwatch.net/digest .

Beyond Reproach: Efforts to pass the Whistleblower Protection Enhancement Act came under scrutiny this week after it was disclosed by the lead lobbyists that the bill will not contain any jury trial provisions, a long-sought reform. The admission came after the Make It Safe Campaign Steering Committee objected to an open letter to Congress which highlighted flaws in the current bill. However, grassroots efforts, led by this author, pointed out that the Steering Committee has 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. It remains to be seen whether the Steering Committee will take heed of suggested reforms, the rejection of which may well cost it considerable influence and credibility with the lowest common denominator that truly matters: federal whistleblowers.

Below the Fold: Read the rest of this entry →

Dissenters’ Digest for May 6-12

4:00 pm in Uncategorized by MSPB Watch

Dissenters’ Digest takes a look back at the week’s stories covering whistleblowers, watchdogs, and government accountability. Look for it every Saturday evening at www.mspbwatch.net/digest.

Senate Passes the Whistleblower Protection Enhancement Act of 2012: In a rare show of unanimity, the Senate passed S. 743, the Whistleblower Protection Enhancement Act, this week, the latest attempt to update the Whistleblower Protection Act in 13 years. The last attempt, in December 2010, was defeated by a secret hold in the Senate, according to the Government Accountability Project. Not all are enthused with the bill’s protections, which “fall[] short of the comprehensive whistleblower law reforms promised in the 2008 political campaign,” notes Stephen Kohn of the National Whistleblowers Center. Now it’s up to the House to pass their version, H.R. 3289, before the two bills can be reconciled and sent to the President’s desk.

OSC Reports the FAA is Slow in Correcting Whistleblower Complaints: In a rare move, the Office of Special Counsel combined seven whistleblower disclosures from FAA employees into one report to the President and the 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. The Special Counsel stated that the “FAA has one of the highest rates of whistleblower filings per employee of any executive branch agency: OSC received 178 whistleblower disclosures from FAA employees since FY 2007, 89 of which related to aviation safety. OSC referred 44 of those to DOT for investigation. DOT ultimately substantiated all but five of those referrals — 89 percent – in whole or in part. In four of the seven cases presented today, the whistleblower had to make repeat disclosures with OSC because the FAA took inadequate steps to correct the concern or failed to implement any corrective action.” The Washington Post has additional coverage.

Below the Fold:

–An internal Pentagon report claims the DoD left whistleblowers vulnerable to reprisal.

–Two F-22 pilots who refuse to fly the aircraft appeared on 60 minutes, claiming a malfunction causes oxygen deprivation aloft.

–The above notwithstanding, the Air Force is in the process of disciplining the F-22 pilots. Congress is expressing concern.

–An EPA scientist who lost her job after blowing the whistle on health dangers to 9/11 first responders prevailed at the Merit Systems Protection Board and will be reinstated.

–The media is silent when the Obama Administration goes after whistleblowers.

–An employment lawyer looks at the fuzzy definition of “gross waste of funds.”

–Thomas Drake speaks with Eliot Spitzer about the DOJ being used to cover up crimes of the Bush and Obama Administrations.

–The FBI is the most effective lobbyist against whistleblower protections, according to a radio interview with National Whistleblowers Center Executive Director Stephen Kohn.

–Former Penn State assistant coach Mike McQueary will file a whistleblower suit against the university over its handling of the Jerry Sandusky abuse scandal.

–The Fourth Circuit revives claims by former Iraqi detainees against contractors who are alleged to have tortured them.

Send tips to tips@mspbwatch.net.

Dissenters’ Digest for April 22-28

4:00 pm in Uncategorized by MSPB Watch

Dissenters’ Digest takes a look back at the week’s stories covering whistleblowers, watchdogs, and government accountability. Look for it every Saturday evening at www.mspbwatch.net/digest.

Congress Troubled by Suspicious Death of Russian Whistleblower: Congress seeks to use legislative authority to punish Russian officials allegedly involved in the suspicious 2009 death of Russian whistle-blower and lawyer Sergei Magnitsky, according to the The Hill. NPR reports that the bill in question could complicate US-Russian relations, jeopardizing Hillary Clinton’s 2009 “reset” with the Russian government. However, a person interviewed by NPR said a “reset … with Russian society” is required instead. The story of Magnitsky’s death has been chronicled in an award-winning documentary. Elsewhere, Firedoglake takes on the Congress for selective concern about civil and human rights.

Below the Fold:

–A whistleblower conference is scheduled for May 20-22 in Washington, D.C.

–A recently-unearthed FAA powerpoint presentation says the FAA “must evolve our safety oversight system and embrace the view that industry — not the regulator — is responsible for ensuring safety,” despite decades-old law placing safety regulation as the FAA’s highest priority.

–The first criminal charges are filed in the Deepwater Horizon gulf oil spill.

–Bradley Manning’s trial continues to be shrouded in secrecy.

–The Non-Federal Employee Whistleblower Protection Act reports out of a Senate committee. The bill would expand whistleblower protections for federal contractors.

–The House of Representatives passes the DATA Act, which would create a five-member commission to oversee federal spending.

–Vermont becomes the third state to call for a constitutional amendment overturning Citizens United v. FEC.

–Green Party presidential candidate Jill Stein vows to pardon Bradley Manning as president.

–A Countrywide whistleblower laments the lack of accountability and ethics in the financial sector.

–A Missouri bill to restrict common law whistleblowing protections is passed in the General Assembly. The bill is sponsored by Rep. Kevin Elmer, who has a record of sponsoring discriminatory and birther legislation.

–The Securities and Exchange Commission was accused this week of blowing a whistleblower’s cover. The SEC responds.

–The summary judgment provision in the Whistleblower Protection Enhancement Act of 2012 comes under scrutiny.

–A federal employment attorney advises employees to violate the law when ordered to by superiors (notwithstanding their conscience or oath to the Constitution).

–The Make It Safe Campaign will hold a general membership meeting this Tuesday, May 1.

Send tips to tips@mspbwatch.net.

Dissenters’ Digest for April 1-7

2:00 pm in Uncategorized by MSPB Watch

Dissenters’ Digest takes a look back at the week’s stories covering whistleblowers, watchdogs, and government accountability. Look for it every Saturday evening at www.mspbwatch.net/digest.

Justice Department Indicts Former CIA Officer, Whistleblower, and Torture Opponent: NPR reports that John Kiriakou, a former CIA officer and outspoken torture opponent, has been charged with violating the Espionage Act by sharing secret information with reporters. The Government Accountability Project notes that Kiriakou is the first and only person to be indicted by the U.S. government who is associated with the Bush Administration’s torture program. GAP further notes that Kiriakou is the sixth whistleblower to be prosecuted by the Obama Administration. Emptywheel has additional coverage.

Watchdog Uncovers State Department Memo Casting Doubt on Legality of Bush Administration’s Interrogation Techniques: As reported by Firedoglake, a 2006 State Department memo casting doubt on Justice Department arguments approving the CIA’s “enhanced interrogation techniques” has been uncovered. 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 that memo, but the non-profit National Security Archive obtained one from the State Department through a Freedom of Information request. Emptywheel has additional coverage. Zelikow’s memo can be found here.

New York Times Report Portrays FDA as Victim of White House Politicization: The New York Times reports that FDA officials were instructed to reverse decisions such as publicizing the caloric content of movie-theater popcorn. The overall tenor of the piece portrays White House officials as shrewd and pragmatic, with FDA officials seen as public-minded, if not “naive.” However, there may be some image management going on following recent and troubling reports of retaliation and spying on whistleblowers, who came forward to allege corruption within FDA and the improper approval of unsafe medical devices. The Office of Special Counsel has opened an investigation into these allegations. GAP and the National Whistleblowers Center have coverage of the FDA.

Below the Fold:

–President Obama signs the STOCK Act, requiring financial disclosure by members of Congress and federal executives.

–Lavish Las Vegas conference costs top GSA officials their jobs. Congress is said to investigate.

–The Obama Administration quietly appoints a new FAA chief counsel with extensive ties to the White House.

–EEOC is urged to tackle conflicts of interest in discrimination complaint process.

–The U.S. government aims to protect secrecy in Bradley Manning’s court martial.

–The Office of Special Counsel is currently experiencing an 8-9 month delay in processing FOIA requests, according to recent communications with its FOIA officer.

Send tips to info at mspbwatch dot net.

Dissenters’ Digest for March 25-31

3:00 pm in Uncategorized by MSPB Watch

Dissenters’ Digest takes a look back at the week’s stories covering whistleblowers, watchdogs, and government accountability. Look for it every Saturday evening at www.mspbwatch.net/digest.

Department of Justice’s Recent Actions Worry Accountability and Transparency Advocates: A number of actions taken by the Department of Justice have caught the attention of government accountability groups and civil libertarians this week.

First, Wired reports that the FBI advised its agents in training materials that they may “bend or suspend the law and impinge upon the freedom of others” under certain situations. That training material has since been changed.

Next, a Senate Judiciary Committee hearing focused on the misconduct of federal prosecutors in the trial of the late Alaska Senator Ted Stevens. A $1 million525-page court-appointed report found that these prosecutors withheld key evidence from Stevens’ defense counsel, in violation of ethical rules. The Stevens case was dropped by Attorney General Holder in April 2009. Following the publication of the report on May 15, Senator Lisa Murkowski introduced legislation to prevent the reoccurrence of the same prosecutorial misconduct, which was met with anonymous opposition by DOJ officials. Emptywheel and the Blog of Legal Times have coverage of that opposition.

Finally, a DOJ proposed rule has caught the attention of Senators and FOIA advocates, who noted that DOJ seemed to be usurping the role of the newly-created FOIA ombudsman, the Office of Government Information Service (OGIS). OGIS is an agency within the National Archives and Records Administration (NARA) and was created by the OPEN Government Act of 2007 to mediate disputes between requesters and federal agencies. Its station with NARA is not without purpose, as housing it within DOJ – which is responsible for defending federal agencies in FOIA lawsuits – would have created a conflict of interest. Senators Patrick Leahy and Jon Kyl sent a letter to Attorney General Holder, the Project on Government Oversight reports. DOJ’s Office of Public Affairs responded to POGO with a clarification that seems to put that particular matter to rest, but another FOIA matter is still under dispute.

Supreme Court Weakens Privacy Act: In a 5-3 decision, the Supreme Court held that the Privacy Act does not authorize damages for emotional distress, NPR reports. The suit was brought by a pilot who sued the Social Security Administration for disclosing information to the FAA relating to his HIV status, causing him to lose his license and suffer emotional distress. In a dissenting opinion joined by Justices Breyer and Ginsburg, Justice Sotomayor writes that the ruling “cripples the Act’s core purpose of redressing and deterring violations of privacy interests.” The Washington Post has additional coverage.

Congressmen Support Long-Suffering Whistleblower: Three House members recently submitted an amicus curiae brief to the Court of Appeals for the Federal Circuit in support of TSA Whistleblower Robert MacLean, according to the Orange County Register. In 2003, MacLean disclosed to the press a TSA plan to cut back on federal air marshals at a time of heightened security alerts. This prompted congressional outrage and the TSA plan was scrapped. MacLean’s case has been tied up in litigation since 2006, when he was terminated from the TSA. GovExec and GAP have additional coverage.

Obama Official Declares “Zero Tolerance” on Veterans’ Discrimination: John Berry, director of the U.S. Office of Personnel Management, declared “zero tolerance” for discrimination against uniformed service members returning to their civilian jobs. Berry’s comments follow a report last month by The Washington Post that the U.S. government is the top offender of USERRA, the Uniformed Service Employment and Reemployment Rights Act, which is designed to protect service members from discrimination in the workplace.

Below the Fold:

–The State Department moves to fire a prominent critic and whistleblower.

–GAO: Air Force has a disproportionate number of whistle-blower complaints within DOD.

–OccupyEPA takes to the streets, demands administrator’s resignation.

–A foreclosure fraud whistleblower reports being harassed by mortgage lender despite winning an $18 million award.

–A whistleblowers’ lawyer and a corporate lawyer mix it up on a whistleblower panel.

–Senator Daniel Akaka (D-HI) introduces a bill to reform the Senior Executive Service.

–The U.S. Merit Systems Protection Board took no action to study work conditions at the Office of Special Counsel following the controversial tenure of ex-Special Counsel Scott Bloch, according to a recent FOIA request.

–A House Subcommittee hearing on low morale at the Department of Homeland Security but fails to call any employees as witnesses.

Send tips to info at mspbwatch dot net.

Senator Patrick Leahy is ignoring allegations of misconduct by a judicial nominee

1:06 pm in Uncategorized by MSPB Watch

Senator Patrick Leahy (photo: mcconnellcenter, flickr)

Senator Patrick Leahy (photo: mcconnellcenter, flickr)

How else can one explain the following statement, meant to pressure Senate Republicans to confirm 19 nominees for federal courts, when Leahy is in receipt of allegations that one of them made false statements to a federal judge?

Leahy says the following:

But, month after month and year after year, Senate Republicans find new reasons and new tactics to delay confirmation of consensus judicial nominees for no good reason.

I wonder when I hear some Republican Senators claim credit for progress on nominations — and point to what they like to call “positive action” — how they can ignore the 19 judicial nominations being blocked for no reason.

The Senate should fill these numerous, extended judicial vacancies, not delay final action for no good reason.

I submit to you that making allegedly false statements to a judge is good reason to take pause. While true obstruction may be taking place, the statements above cannot hold across the board. Let’s take our time lest we confirm the wrong person for the post.