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GAP’s Whistleblower Whiplash

8:26 pm in Uncategorized by MSPB Watch

Two developments in the whistleblower world caught the Government Accountability Project speaking out of both sides of its mouth today.

Whistle Blower puppet

GAP’s Tom Devine is inconsistent on whistle blowers.

Here’s GAP’s Legal Director, Tom Devine, on news that the Federal Circuit dealt a serious blow today to national security employees’ (and possibly all federal employees’) civil service protections:

Last year Congress unanimously passed the Whistleblower Protection Enhancement Act (“WPEA”) due to hostile Federal Circuit activism creating judicial loopholes that gutted statutory free speech rights. Apparently the Federal Circuit did not get it. This time the court created a loophole to remove the civil service rule of law from virtually the entire federal workforce. It erased all federal laws that shield the two million federal employee workforce from becoming a national security spoils system.

And

After Conyers, federal employees will have two rights left: be national security ‘yes people,’ or leave. A bureaucracy where it is only legally safe to be a national security ‘yes man’ is a clear and present danger to freedom for all Americans.

Of course, courts do not issue rulings destroying 100+ years of civil service protections willy-nilly. Someone has to argue for that position. Conspicuously missing from GAP’s myopic condemnation is any mention of the driver and originator of this decision: the Obama Administration, as well as Acting OPM Director Elaine Kaplan, a former Special Counsel and recipient of a GAP-sponsored award.

Turning to the second development, here’s the very same Tom Devine defending the White House on charges that the president misspoke/misled/lied to the public when he said that his executive order (PPD-19) would have given Edward Snowden a viable channel to blow the whistle. The article ably lays out all the different interpretations and positions on this issue. For my purposes, however, it’s sufficient to quote the end:

“There is no substitute for codified rights,” said GAP’s Devine. “But to be fair, the president is doing what he can to sweep in contractors” under the October directive. Devine’s discussions with White House aides indicate they believe the White House has the authority to act alone, he said, perhaps by using “expansive definitions of government employee.”

Sometime between the time Obama signed the October order and the stripping of contractor protections in the defense bill, Devine said, the issue fell off the White House radar.

So there you have it folks. When it comes to a conscious, relentless effort to eviscerate decades-long civil service protections, the Obama Administration is nowhere to be mentioned in Devine’s indignant quotes. But when the president makes a comment that perks the ears of whistleblower advocates across town, Devine is there, ready to offer innocuous sounding excuses on his behalf.

Here’s a question to my fellow whistleblowers: does this conduct do justice to your sacrifices?

Read the rest of this entry →

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.

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.

De-Muddying the Waters: GAP’s Compromised Role as Lobbyists, Not Lawyers

5:54 pm in Uncategorized by MSPB Watch

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, 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.

A Few Questions for Filmmaker James Spione about SILENCED

11:34 am in Uncategorized by MSPB Watch

SILENCED, a new film about whistleblowers by filmmaker James Spione, is currently in post-production. The film features three Government Accountability Project clients (Thomas Drake, John Kiriakou, and Peter Van Buren) and one GAP employee (Jesselyn Radack). Here is the trailer.

The film’s promotional material states it will be “offering an analysis, along with a number of independent experts and thinkers, of what [the whistleblowers'] chilling ordeals mean for the future of our country.”

There is no doubt the individuals involved had good intentions when they blew the whistle on various government wrongdoing. There are, however a few wrinkles in several of their stories that I hope will be explored by the independent expert and thinkers, if not Mr. Spione himself.

For instance, concerning Ms. Radack’s account, will the film explore the fact that the emails she believed to have been purged and denied from the court were, in fact, submitted and denied to John Walker Lindh under the court’s protective order?

Will the film explore the fact that Ms. Radack apparently did not make her disclosure concerning Lindh’s allegedly unconstitutional treatment to the U.S. Office of Special Counsel, which could have accepted her dislcosure confidentially, thus preventing any breach of the attorney/client privilege?

Will the film explore the fact that Ms. Radack did not, for some reason, appeal her termination with either the Office of Special Counsel or the U.S. Merit Systems Protection Board, as had been her right as a Department of Justice employee (over which both OSC and MSPB exercise jurisdiction), where no statute or executive order bars such jurisdiction?

Will the film explore Ms. Radack’s stated interest in ensuring that the Office of Special Counsel “scrupulously and fully comply with its statutory obligations to protect federal employees from [prohibited personnel practices],” given OSC’s “immense importance to national security,” before apparently neglecting this interest upon taking a job with the Government Accountability Project?

Will the film explore the fact that Mr. Drake could have, at least under the law, submitted his disclosures to the Office of Special Counsel for referral to Congress, but did not do so, choosing to go to the media with all of the attendant consequences that followed?

Will the film explore the fact that even if the government’s prosecution of Mr. Kiriakou for his admitted violation of the Intelligence Identities Protection Act of 1982 was motivated by his public interviews about the CIA’s torture techniques, the government had legally justified grounds to do so, given that whistleblowing is not a shield against misconduct?

Let me clarify: there is no excuse for government torture, wiretapping, or denial of rights. This is, or is supposed to be, a nation of laws. And that applies equally so to whistleblowers who seek to bring misconduct to light. Good government activists, advocates, and filmmakers do the public no favors by presenting one-sided accounts that omit, distort, or mischaracterize the rights and responsibilities that face whistleblowers in the course of committing the truth. I hope this film does nothing of the sort.

P.S. if an activist chooses to engage in non-violent disobedience, more power to him/her. There is a rich and storied history of civil disobedience in America to raise awareness and bring about change. But the key word is “choose.” Civil disobedience is not something that can be elected after ignorantly violating the law and then paying for it. The latter is simply propaganda.

Fact Check: GAP Legal Filing Falsely Claims Intelligence Workers Lack External Avenues to Blow the Whistle

7:54 am in Uncategorized by MSPB Watch

In a friend-of-the-court filing dated Dec. 17, the Government Accountability Project argued that a provision in the National Defense Authorization Act of 2012 should be declared unconstitutionally vague as it might chill whistleblowers’ speech. In describing the legal landscape affecting whistleblowers’ rights, however, GAP painted an unduly narrow picture of the avenues currently available.

On page 11, counsel for GAP described the protections in the Whistleblower Protection Act as follows:

The primary legislation affecting federal whistleblowers, the Whistleblower Protection Act of 1989 (“WPA”), provides certain federal employees who report evidence of violations of law, rule or regulation including gross mismanagement, waste of funds, or substantial and specific danger to the public health or safety with some protection, including judicial review.  See 5 U.S.C. § 2302(b)(8).

It noted that “employees in the intelligence community are excluded from the WPA’s protections.”

The brief then continued to state that

[W]histleblowers in the intelligence community . . . are limited to internal administrative avenues. The Intelligence Community Whistleblower Protection Act of 1998 (“ICWPA”) is toothless and creates bureaucratic procedures that makes blowing the whistle an exercise in futility. [Emphasis added.]

This particular claim is false. By law, all executive branch employees have the right to make disclosures of classified (or unclassified) information externally–to the Office of Special Counsel. See 5 U.S.C. § 1213(a)(2). The exemption of intelligence workers from protections against reprisal, found in 5 U.S.C. § 2302(a)(2)(C)(ii), does not affect their right to make disclosures to the Office of Special Counsel.

As such, the ICWPA is not the only avenue to blow the whistle in the intelligence community. Though the WPA does not provide protections against reprisal to intelligence community employees, it does guarantee confidentiality, and an unfiltered channel to the National Security Advisor and relevant intelligence committees in Congress for intelligence-related disclosures. See 5 U.S.C. §§ 1213(h), (j).

Moreover, OSC recently accepted a disclosure from a former FBI employee (FBI is one of the agencies listed in 5 U.S.C. § 2302(a)(2)(C)(ii)), further demonstrating that disclosures by intelligence community employees may be made outside the ICWPA.

Update: In a YouTube video posted Dec. 18, OSC official Bruce Fong (at the 3:31 mark) said that

If your disclosure involves information that you believe might be prohibited from public disclosure, be very careful. You must use a protected channel in order to benefit from the protections of the whistleblower laws. So, if you have information in your disclosure that includes classified information, for example, make sure you use one of the protected channels. The office of inspector general is always a protected channel. So is the Office of Special Counsel. [Emphasis added.]