(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 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.

Foreign Press Covers Obama’s War on Whistleblowers: A Guardian (UK) article covers recent prosecutions of whistleblowers by the Obama Administration and discusses the general state of free speech and dissent during Obama’s reign. Separately, Russia Today interviews two whistleblowers’ lawyers from competing organizations and discusses the case of John Kirikaou, the CIA whistleblower and torture critic who was recently indicted for allegedly sharing secret information with reporters. NPR and Salon have coverage of that prosecution.

FBI Blocks Publication of Whistleblower’s Book Critical of Agency: A lawyer for FBI whistleblower Sibel Edmonds claims the FBI is blocking publication of his client’s book in violation of agency regulations, according to a press release by the National Whistleblowers Center. Edmonds, who worked as a contract linguist at the FBI, was fired six months after 9/11 following complaints to management about possible compromises to national security and shoddy wiretap translations, according to the Associated Press. Edmonds’ suit was blocked by Attorney General John Ashcroft, who invoked the controversial state secrets privilege. Edmonds has additional coverage on her independent media site, Boiling Frogs Post. She is also featured in this podcast interview by Peter B. Collins.

99% Spring: Real Grassroots Activism or Partisan Co-opting? The “99% Spring” activism training effort by MoveOn.org is seen as an attempt to co-opt the Occupy movement for Democrats’ electoral gain, according to an anonymous party activist. Mother Jones, which is seen with the same suspicion as MoveOn in the link above, offers one account of MoveOn’s training, but a different on-the-ground account is unmoved.

Updates in State Dep’t Whistleblower Peter Van Buren’s case: State Department critic and whistleblower Peter Van Buren is profiled by his lawyer, Jesselyn Radack of the Government Accountability Project, who is covering for Glenn Greenwald on Salon.com. Van Buren separately discusses a recent interrogation by Diplomatic Security. The State Department is moving to fire Van Buren for critical blogging of his employer.

Below the Fold:

–JOBS Act encourages fraud in the financial markets, according to Rolling Stone columnist Matt Taibbi.

–The reputation of the late community organizer Cesar Chavez comes under scrutiny for questionable professional conduct.

–A fired SEC lawyer will have a chance to get his job back following a decision by the Court of Appeals for the Federal Circuit.

–A power struggle at a watchdog agency could undermine nuclear plant safety.

–The White House rejects requests to sign executive order prohibiting LGBT discrimination by federal contractors.

–A California state report blasts UC-Davis over pepper spray incident.

Send tips to info at mspbwatch dot net.

Veal! (photo: rinalia/flickr)

A disturbing post was put up by the Project on Government Oversight yesterday, featuring an unthinking quote by its Executive Director, Danielle Brian:

For his part [Nuclear Regulatory Chairman Gregory] Jaczko has said he only recently learned of the allegations, but admitted to sometimes having a brusque management style at times. “There are times when I can question people intensely and that’s something I am aware of in my style,” Jaczko said at a Senate hearing today.

“Whatever the case is regarding the allegations, they do not rise to the level of Inspector General or Congressional scrutiny,” said POGO Executive Director Danielle Brian. “Even if the worst allegations are true, they are hardly unique in Washington, a city full of bullying bosses. They are, however, convenient as a weapon for those who disagree with Jaczko’s voting record.”

Here’s a comment I left on the site (awaiting moderation):

Sorry, dismissing DC culture as one full of “bullying bosses” understates the case and undermines POGO’s credibility. Intimidation, abuse, and reprisal run rampant, and the civil service — and America — are worse off for it. It doesn’t have to be this way – the U.S. Office of Special Counsel and the Merit Systems Protection Board could take their statutory mandate seriously – as required by the Civil Service Reform Act of 1978.

But then again, POGO (and others) have steadfastly refused to confront lawbreaking by OSC and MSPB for over thirty years.

Why?

By the way, bullying is “abuse of authority” – an illegal practice under 5 U.S.C. 2302(b)(8)(A)(ii). It merits a de-politicized, sober investigation, not a brusque dismissal by a purported government oversight organization.

Update: in response to criticism, POGO changed the phrase “bullying bosses” to “mean bosses.” But this is an empty, arrogant gesture that misses the point.

An excerpt from the New York Times:

Another chapter is out in the continuing and very public story of conflict within the Nuclear Regulatory Commission, which has now taken the form of a battle of snail mail.

A letter addressed to the White House chief of staff and signed by four of the five commission members was circulated Friday criticizing the fifth member, Gregory B. Jaczko, its chairman, and expressing “grave concerns” that his deficiencies as a leader could compromise nuclear safety. It was dated Oct. 13. A similar letter was sent directly to Dr. Jaczko.

And this week, a rebuttal letter from Dr. Jaczko, also addressed to William M. Daley, President Obama’s chief of staff, said the other four members were improperly trying to involve themselves in management affairs, which in a reorganization of the commission in 1980 became the chairman’s sole responsibility. Dated Dec. 7, the letter said that the rest of the commission had “taken an approach that is not as protective of public health and safety as I believe is necessary.”

For relevant context on how such breakdowns in the civil service occur, see this letter from Joe Carson, Nuclear Safety Engineer at the Department of Energy:

December 10, 2011

Chairman Jaczko
Commissioner Svinicki
Commissioner Apostolakis
Commissioner Magwood
Commissioner Ostendorff

Nuclear Regulatory Commission

Washington, DC 20555

Subject: The “broken covenant” of Civil Service Reform Act of 1978; significant and persistent deficiencies in scope and implementation of engineering ethics; and your mission and your disputes about your various authority in executing it

Dear NRC Commissioners,

I am writing because of a NY Times story, “New Discord at NRC,” today about your dispute, which links to your respective letters to the White House.1 I have already established that you cannot demonstrate objective compliance with your fundamental duty to NRC employees – to ensure they are adequately protected from reprisal, discrimination, personal favoritism, or other types of “prohibited personnel practices (PPPs),” so they can perform their duties in a trustworthy fashion, per the merit system principles. How else can you possibly claim to be complying with your duty to “prevent PPPs” at 5 U.S.C. section 2302(c), if you cannot do this?

But I do not blame you, because you cannot do this by yourself. Congress, per the Civil Service Reform Act of 1978, assigned the duty to “protect (NRC) employees from PPPs” to the Office of Special Counsel (OSC), per (what is now) 5 U.S.C. section 1214, and assigned the Merit Systems Protection Board (MSPB) the duty to conduct oversight of OSC and NRC in interpreting and applying their respective duties to determine whether NRC employees are adequately protected from PPPs, per 5 U.S.C. section 1204(a)(3). But OSC interpreted away, at its creation, its essential duty to “protect” by claiming it never has to tell anyone when it determines a PPP has occurred, and MSPB enabled OSC by claiming it never has to conduct oversight of OSC or NRC to determine whether NRC employees are adequately protected from PPPs. This is detailed, in boring, nuclear safety grade, detail at www.broken-covenant.org and http://mspbwatch.wordpress.com/.

So, maybe Chairman Jaczko took a page from OSC’s and MSPB’s playbooks in claiming he does not have to tell other NRC Commissioners what they believe they need to know to comply with their statutory duties for nuclear and public health and safety.

The NRC Inspector General report about Chairman Jaczko’s actions about terminating the NRC’s review of DOE’s license application for Yucca Mountain determined he did not break any laws.2 But it was silent to the most relevant question – did he abuse his authority? “Abuse of authority” is a legal phrase with defined meaning in federal civil service law – it is not just a subjective “eye of beholder” combination of sounds.3 Perhaps the NRC IG feared retribution to make such a finding, so he was silent to it.

As I understand rule of law in USA, the Office of Legal Counsel (OLC) of the Department of Justice should be the final referee in Executive Branch about your respective authorities. I also understand you have the authority to task OLC to issue its opinion on your concerns.4

I played a significant role in the American Nuclear Society (ANS) issuing a new code of ethics about 7 years ago.5 I regret it, it is nothing but worthless eyewash in practice – ANS has yet to ever investigate a member for violating it or taking any action to uphold it when an ANS member claims to have been so foolhardy to put it ahead of their economic self-interest and to be suffering employer retribution for it, even when legally established.

The NRC Inspector General found former NRC Commissioner Merrifield violated some conflict of interest requirements of the federal civil service. This was publicized in the Washington Post.6 In doing so, he also violated aspects of the ANS Code of Ethics. I brought this to the appropriate attention of ANS leadership, the 10 or so former NRC Commissioners who belong to ANS, and others. Everyone stuck their head in the sand and pointed me to someone else, demonstrating the “broken honor code” implementation basis of engineering ethics.7

Commissioner Ostendorff – you knew me in Navy Nuclear Power School. When Admiral Rickover interviewed me, he asked me why I wanted to be in his program and I told him I wanted to be a better engineer. Be careful what you ask for, I suppose, because my being a “better engineer” includes the unpopular assignment to call out my profession about the significant and persistent deficiencies in its code of ethics – which forms an essential part of the engineering, as any other, profession.

Commissioner Magwood – you have known me a bit via our common membership in ANS and common employment in DOE.

Chairman Jaczko – we met about my concerns as a Department of Energy whistleblower when you were on Senator Reid’s staff.

Everyone in nuclear profession would be better served by clarity about your respective roles – as applied in specific instances – not just in theory. Everyone in federal civil service would be better served by clarity about the respective responsibilities of agency heads, the Special Counsel of the Office of Special Counsel, and Members of the Merit Systems Protection Board for ensuring members of federal civil service are adequately protected from PPPs. Everyone on planet earth in 2011 would be better served if the members and leaders of engineering profession would find the moral courage to acknowledge and address the significant and persistent deficiencies in the scope and implementation of engineering ethics.

You have sworn duties for a reason – and not just to burnish your resumes for your next career move – and I am bringing serious, well evidenced, far-reaching concerns to your attention and they are certainly relevant to nuclear safety. Please act in accordance with the merit system principles, your oaths of allegiance, and standing as nuclear professionals, in considering them, because you do have the influence and/or authority to substantiate or dispel them.

Respectfully,

Joe Carson, PE

Copy: Relevant Stakeholders in Government, media, and elsewhere

1. www.nytimes.com/2011/12/10/us/new-discord-at-nuclear-regulatory-commission.html?scp=1&sq=nrc&st=cse

2. See http://republicans.energycommerce.house.gov/Media/file/Hearings/Environment/061411/IGREPORT.PDF

3. See 5 U.S.C. sections 1213(a)(1)(B), 2301(b)(9), and 2302(b)(8)

4. See 28 U.S.C. sections 510-512, 28 C.F.R. section 0.25, and www.justice.gov/olc

5. See www.new.ans.org/about/coe/

6. See www.pogo.org and perform a search on “merrifield” to locate the NRC IG report

7. See http://srhrl.aaas.org/newsletter/per/archives/per43.pdf for a short article on the broken state of engineering ethics