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1978 to 2012: Transparency and Congressional Deliberation of Whistleblower Laws through the Years

12:17 pm in Uncategorized by MSPB Watch

An array of tin whistles

A look at whistleblower laws of recent decades

In 1978, Congress debated the Civil Service Reform Act extensively. It was a landmark, once-in-a-century effort. Naturally, there would be a lot of coverage. Deliberations in the Senate took 12 days, deliberations in the House took 13 days, and the House-Senate conference took place over at least 6 days, according to records recently discovered in the Library of Congress. Here are some of the mark-up sessions and other documents from those deliberations:

By contrast, research into the mark up of the Whistleblower Protection Act of 1989 revealed only one day’s worth of deliberations, and the Senate’s mark up of the Whistleblower Protection Enhancement Act of 2011/12 took only five minutes.

Contrast this give-and-take in 1978 over the role of the Special Counsel, as just one facet of law, versus the entirety of the discussion over the WPEA in the Senate, 33 years later.

June 1978:

Sen. Chiles offered that

My feeling is if you put a Special Counsel in and he is appointed by the President, you know, we are really having sort of two groups that are supposed to be doing the same thing, and that is protecting the workers. You have the Merit Board, and the Merit Board is a bipartisan board with staggered terms, and it is certainly supposed to be operating in the best interests and for the best results of protecting employees. And then you turn around and appoint a Special Counsel by the President, and then you get into the whole thing of how do you get rid of him. Is he for cause? Who can initiate?

He also raised the point that

If you have a Special Counsel, and I am concerned with what we did with the Special Prosecutor in this regard, we are starting to create individuals or posts with tremendous power but no accountability  You let the President nominate him, but then he can’t be removed except for cause. He is really sort of accountable to no one once he gets in that job.

Senator Jacob Javits (R-N.Y.) responded to Sen. Chiles’ concerns and said that

[A] Special Counsel appointed by the commission would not have the standing that a Special Counsel appointed by the President would. . . . I would hope that we could take a Presidential appointee subject to Senate confirmation, give him the necessary stature and then give him the necessary protection so then he is really acting as the independent prosecutor. . . [unintelligible] making him a Special Counsel is that we don’t necessarily want them to work together. We are a little bit concerned that the Merit Systems Protection Board may, like so many other boards, get impregnated with the views and the attitudes, et cetera, of the agency which it serves. Therefore, as a check and balance, especially for whistleblowers, we want to have somebody out there who can initiate a prosecution.

Sen. Chiles responded that

Now what happens, every time that we decide we can’t trust one group and so we are going to add another check, I think really what we do is we remove a little further from the people the ability to judge and assess responsibilities and to pinpoint that responsibility, and we diffuse it. But we also make it where government can’t work because they start working at loggerheads.

So I would rather have the responsibility be on the appointments of the Merit Protection Board, that board be confirmed by the Senate, make that board of some stature, make them responsible and allow them to appoint the Special Prosecutor or the Special Counsel, and have that chain of responsibility. I think when you start deviating from that, before long we are going to need somebody to check on the Special Counsel. Then we will have to give some independence to that person because we are afraid the Special Counsel, by virtue of his term or the fact he is only removed for cause — that is just looking at it philosophically.

October 2011:

Read the rest of this entry →

Will better whistleblowing laws begin at the bottom?

10:01 am in Uncategorized by MSPB Watch

The Bush/Gore/Nader spoiler debate is taking place again, this time in the shadow of whether people of conscience can vote for Obama. Pentagon Papers whistleblower Daniel Ellsberg recently urged people in swing states to vote for Obama over a third-party candidate because the alternative is worse (this is the “Lesser of Two Evils” argument, or LOTE).

An array of tin whistles

Photo: Gordon Wrigley / Flickr

Glenn Greenwald wrote about this issue today, here. The comments are interesting, as are the article and comments to this piece by Matt Stoller, who is urging people to vote against Obama. The commenters discussed the merits of LOTE voting and whether voting for a third-party candidate is viable and would send a strong enough message.

Then one commenter said the following, which stood out for me:

Change does not come at the top. It comes from your Selectmen, your County Commissioners, your Sherifs. That is where they create the Bernie Sanders. The ones that can Make a Difference.

Putting aside the issue of presidential politics, will better whistleblowing legislation take hold if up-and-coming local legislators–tomorrow’s national politicians–were pressured to support good legislation at the local and state levels?

What if there was a candidate clearinghouse that rated local and state candidates on their commitment to ethical conduct in government? Local municipalities and state governments need whistleblowing legislation, and the legislators that oversee these institutions become congressmen in a number of years. And whistleblowers can be found around the country.

Why not get involved and make the Congress of a future session friendly to whistleblowers on Day 1?

As far as I can tell, the National Whistleblowers Center is the only place that comes close to doing this, but on a presidential level. Here’s NWC’s questionnaire to then-candidate Barack Obama.

Another alternative is having whistleblowers and activists get involved locally and organize, organize, organize. And to put my money where my mouth is, that’s exactly what I’ll be doing in my own town of Alexandria, Virginia. Truth be told, I don’t even know what the local and state whistleblowing laws are here. 

I urge anyone reading this and so motivated to do the same in your own town and state.

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:

National Whistleblowers Center explains roots of divisions and setbacks in the federal whistleblower community

3:03 pm in Uncategorized by MSPB Watch

Here it is.

Key passage (emphasis mine):

On February 1, 2007, whistleblower organizations met together as the Make it Safe Coalition (MISC) and agreed that we would support only bills that were improvements on the current law and contained no backward steps for anyone. Those goals were almost met on January 28, 2009 when the House of Representatives voted for strong whistleblower rights, including full federal court access for all federal employees.

However, over the summer of 2009 things started to go wrong. In negotiations the NWC attended with representatives from the White House and Congress, it became clear that some in the Senate did not support full protection for federal employee whistleblowers. Additionally, the White House retreated from earlier pledges to support a strong federal employee whistleblower law, and instead explicitly stated in private meetings that they would oppose full court access and due process protections for national security employees.

Things took a further turn for the worse in August of 2009 when the Senate Committee on Homeland Security and Government Affairs “marked-up” and approved the Whistleblower Protection Enhancement Act. At the committee meeting the Senate sponsors stated that their bill was the “best” whistleblowers could get, and the community needed to get behind it.

In response to the Senate Committee mark-up, the MISC Executive Committee endorsed the bill. However, the NWC saw a number of defects in the legislation that made it impossible for us to support passage of that version of the Senate bill. Instead, we became the “skunk at the picnic” and were placed in a very difficult position of having to publicly oppose that version of the bill.

Public Sentiment Is Everything (Part II)

10:37 am in Uncategorized by MSPB Watch

On June 16, I wrote the following about the current efforts to pass the Whistleblower Protection Enhancement Act:

There’s a quiet revolution taking place in the federal whistleblower community. Once-obedient and silent whistleblowers are starting to take note that the professional advocates who speak for us are no longer sensitive to our needs. There’s a schism between two major groups, the Government Accountability Project and the National Whistleblowers Center, over the Whistleblower Protection Enhancement Act (or at least there used to be. NWC has not come out against the WPEA recently).

More of us are beginning to see NWC’s criticisms as valid after we engage in independent research, despite GAP’s attempts to poison the well. Tom Devine, Legal Director of GAP, once told me to eschew community organizing tactics in favor of Machiavellianism. The results of his favored approach are not difficult to see: the public is ignorant of the extent of retaliation and lawlessness in the federal government because the professional advocates eschew empowering ordinary citizens in favor of backroom deals and clientelism.

There’s a paternalistic streak running among these professionals, who believe that whistleblowers must be kept silent and obedient, lest the public look at any intra-group conflicts with horror and dismiss us all as cranks. I, for one, have more faith in people’s abilities to judge a situation on the merits than obsess over its optics. A quick look at GAP’s marketing propaganda and reports portrays whistleblowers as two-dimensional mannequins without free will or agency. That’s not without purpose.

The constant obsession over “tactics” being counterproductive begs the question –counterproductive to whom? And to whose agenda? Because GAP’s current tactics certainly don’t benefit me.

Perhaps the straw that broke the camel’s back was when Devine told me that our role was to give Congress a “pep talk,” not criticism, lest their staffers turn their backs on us and our attempt to pass legislation to protect federal employees and taxpayers. Also, that lobbyists and these staffers are the “lower common denominator” to whom we should simply defer.

Forgive me, Mr. Devine, but the lower common denominator are the whistleblowers your organization purports to empower.

The sooner you realize this, the better our chances at passing real reforms.

Last Friday, the whistleblower community received the following message:

Dear MISC Members, the following legislative report is from the MISC steering committee  

Members of our community have been working hard for the best outcome on Whistleblower Protection Enhancement Act issues. This progress report is so that all the other coalition groups, NGO’s and individuals working independently can make informed strategy choices, and so our work and others’ reinforces our mutual efforts most effectively. It also is to sound the alarm on a disastrous new Federal Circuit Court of Appeals decision that gives agencies a nearly blank check to cancel the civil service appeals system for hundreds of thousands of federal workers on the most contrived of national security grounds.

Let’s start with an update on the issues we’ve discussed frequently at coalition meetings and events over the past several months (in some cases, years!):

* Good news is that – 1) we’re making progress on our insistence for all circuits review, removing the Federal Circuit Monopoly, 2) there are ongoing negotiations between congressional offices on the burdens of proof that gives the government the upper hand in district court, and 3) clarification of an Executive Order that could have canceled WPA rights. 

We don’t yet know where we are on the new rights for intelligence community workers, but the intelligence committees are engaged and *appear* to be working in good faith thus far. We should know more by late next week.

* Bad news is that – 1) jury trials are still off the table, 2) we haven’t restored normal burdens of proof for bench trials in district court; and 3) summary judgment again is a threat; and  4) an amendment to close the PHS/NOAA “uniformed employees” WPA loophole, despite impressive public support and the recent FDA surveillance scandal, appears to be off the table due to opposition by the association representing PHS officers.

As explanation, House Judiciary Committee Chair Lamar Smith (R-TX) has continued to be an opponent of jury trials and all circuits review.  In addition, Senator Jeff Sessions’ (R-AL) office is demanding the burdens of proof handicap against whistleblowers if they go to court. All these offices have the authority to single-handedly stop the bill, either through their sequential referral authority (House Judiciary, already claimed), or their ability to impose a “hold.” (done in three other Congresses by Senator Sessions).  We are urging Chairman Issa to work with Smith to ensure credible court access, and for them to ignore the threat of Senator Sessions and pass something we can all support. We hope that if the House does this, then we will have an opportunity to isolate Sessions and work to overcome his objections on the last remaining issue of burdens of proof. We need Senator Grassley to support this outcome.

* Unresolved issues include –1) National security issues – HPSCI has not reported back revealing what it will accept.  2) “MacLean fix” so agency secrecy regs can’t supersede public whistleblower rights. Some House offices are considering this amendment, but there is generally wariness about adding anything “new” that could draw a new Senate hold. But unless it occurs, nearly any agency would be able to circumvent the WPEA and publicly gag its employees through internal regulations. 2) Savings provision so that those who have not yet filed can benefit from the WPEA. It is the same as the MacLean fix; no real opposition and a few offices working on it, but general nervousness. 3) Contractor whistleblower rights experiment.  This is in the House bill, but the Senate has never considered it within the context of the WPEA (though the Senate Homeland Security and Governmental Affairs Committee has passed the McCaskill bill to give rights to all employees of federal fund recipients, S. 241). We are being told that this will draw a hold from one or more Senators. *  Conyers/Northover – This new Federal Circuit decision overturns a MSPB ruling and allows agencies to bypass the civil service appeals process when removing anyone with a job designated “sensitive” – which the court defined as any work that “implicates national security”; i.e., virtually any job. If it sticks, there will be no system of due process to apply and enforce any of our WPEA victories. We think it imperative that Congress act to restore the civil service system, or our victory will be irrelevant until that occurs. WPEA is one potential option, but including this could endanger the bill, and most likely doom it to uncertainty in the Lame Duck session after the elections. We are working closely with allies in Congress and the Administration to find the best vehicle. A GAP release and AP article are linked.

WORKING TOGETHER

Through advocacy to all Hill offices and personal efforts with your own members, the MISC community at large can make a big difference, if not the difference, in our advocacy being heard, and by recruiting media calls to the politicians and shows/editorials, letters to the editor or op-eds; and generally convincing the politicians that they have to be on their best behavior with the WPEA, because too many voters know what it means.  The whistleblower letter organized by Evy Brown has been a very helpful contribution to the advocacy, as has the organizational support letter. Your help with recruiting signatories for both is needed! 

There is still a chance that a bill will be ready during the very narrow window  for congressional work in September. There are only SEVEN legislative days before they leave and are off until after the elections.  We are hoping they will avoid the all-bets-are-off lame duck scenario, but this is really out of our hands. Now is the time for all of us, in our own way, to make our move.

Thank you,

MISC Steering Committee

Shanna Devine
Investigator, Legislative Campaign Coord.
Government Accountability Project
1612 K St NW, Suite 1100
Washington, DC 20006
(202) 457-0034  ext. 132 (voice)
(202) 457-0059 (fax)
Email: shannad@whistleblower.org
Website:
www.whistleblower.org

When you try the same thing for 13 years but get the same result, perhaps it’s time to try something new. With different leadership at the helm.

Acting ATF Director Threatens Employees with Punishment for Exercising the Right to Report Wrongdoing Outside the Chain of Command

2:15 pm in Uncategorized by MSPB Watch

“Choices and consequences simply means that, as an employee of [the Bureau of Alcohol, Tobacco, Firearms, and Explosives], should you decide not to abide by the standards of conduct or the rules of the road, should you decide that you’re not going to play by the rules, there will be consequences. . . . Choices and consequences means simply that if you make poor choices, that if you don’t abide by the rules, that if you don’t respect the chain of command, if you don’t find the appropriate way to raise your concerns to your leadership, there will be consequences, because we cannot tolerate, we cannot tolerate an undisciplined organization.”

Of course, he doesn’t tell his employees they have the right to go outside the chain of command. And they do. His name is B. Todd Jones. He’s the Acting ATF Director. He should not be in that capacity, Acting or otherwise.

“[National Whistleblowers Center Executive Director Stephen Kohn] said Jones’ specific use of words in the context of the video clearly misleads workers into believing they legally can’t go to Congress, outside inspectors general and the Office of Special Counsel to report wrongdoing.”

“’There are many cases that say whistleblowers can ignore the chain of command.  In fact, under the Whistleblower Protection Act, you may lose protection if you only report to your first line supervisor, and going outside chain is a way to get protection,” Kohn said. “Also, the WPA says that ‘any disclosure’ is protected, not just disclosures made in the ‘appropriate way.’”

Source: ATF chief warns of ‘consequences’ to outside whistleblowing

For what it’s worth, I sent Jones an email, as a private citizen, asking him to resign. I urge you to do the same: b.todd.jones@usdoj.gov.

FDA’s spying campaign wider than previously believed

2:18 pm in Uncategorized by MSPB Watch

Even watching what you type (photo: Robbert van der Steeg / flickr)

In a story that almost defies comprehension, the New York Times is reporting that the Food and Drug Administration’s suspected surveillance of whistleblowers is bigger than previously reported, 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.

The FDA contracted with an outside firm to install “key logging” software in employees’ computers, which can record every key stroke and thus intercept draft letters and email passwords. The software was originally set up to collect and analyze surveillance results, but FDA officials used it to provide new leads and to map out new surveillance targets and issues of concern.

One of the congressmen on the list is Rep. Chris Van Hollen (D-MD), who is number 14. His aide is number 13.

Senator Chuck Grassley (R-IA) told the New York Times that FDA officials “have absolutely no business reading the private e-mails of their employees. They think they can be the Gestapo and do anything they want.”

An FDA contractor tasked with surveying real-time, intercepted communications apparently posted online a cache of documents by mistake. It has recently been taken down.

It is unknown if the surveillance continues to this day.

Source: In Vast Effort, F.D.A. Spied on E-Mails of Its Own Scientists

http://www.nytimes.com/2012/07/15/us/fda-surveillance-of-scientists-spread-to-outside-critics.html

How Obama broke his campaign promise to whistleblowers

7:14 pm in Uncategorized by MSPB Watch

Here’s a brief rundown: in 2007-08, Obama ran on a platform of open government, transparency, and protecting whistleblowers. He even relied on his experience as a whistleblowers’ attorney to prove his bona fides. He won.

Two activists in Guy Fawkes masks hold a sign of Bradley Manning.

Anonymous activists in support of Bradley Manning (Photo: Bradley Manning Support Network / Flickr).

Around February 2009, Senate Majority Leader Harry Reid had the opportunity to provide long-sought protections to whistleblowers through the stimulus bill. He blew it. Meanwhile, the Justice Department was in the process of prosecuting (or preparing the prosecution of) the highest number of whistleblowers in history. At the same time, the whistleblower community (and then some) got together to prod the Democratic-controlled Congress to complete a decade-long attempt to update the Whistleblower Protection Act. This was in May 2009.

Then the Senate released their bill, which was watered down and divided the community. The White House was backing away from Obama’s campaign pledge. The National Whistleblowers Center stood their ground, arguing that jury trials are crucial. The Government Accountability Project and a few others, including the Project on Government Oversight, wavered. (They also had access to the White House and plenty of attention (and cash) from corporate-funded foundations with ties to the administration.) A split in the community occurred, and the bill died. Another bill cropped up, but it’s virtually identical to the one that came before.

So here we are: divided, demoralized, and adrift. GAP, POGO, et al are still peddling a weak, if not harmful bill while trying to silence dissent.

Obama is still prosecuting whistleblowers.

Retaliation goes on. Corruption goes on.

There’s a name for the kind of co-option that took place in the past three plus years: veal pen politics.

Public Sentiment Is Everything

8:59 am in Uncategorized by MSPB Watch

There’s a quiet revolution taking place in the federal whistleblower community. Once-obedient and silent whistleblowers are starting to take note that the professional advocates who speak for us are no longer sensitive to our needs. There’s a schism between two major groups, the Government Accountability Project and the National Whistleblowers Center, over the Whistleblower Protection Enhancement Act (or at least there used to be. NWC has not come out against the WPEA recently).

More of us are beginning to see NWC’s criticisms as valid after we engage in independent research, despite GAP’s attempts to poison the well. Tom Devine, Legal Director of GAP, once told me to eschew community organizing tactics in favor of Machiavellianism. The results of his favored approach are not difficult to see: the public is ignorant of the extent of retaliation and lawlessness in the federal government because the professional advocates eschew empowering ordinary citizens in favor of backroom deals and clientelism.

There’s a paternalistic streak running among these professionals, who believe that whistleblowers must be kept silent and obedient, lest the public look at any intra-group conflicts with horror and dismiss us all as cranks. I, for one, have more faith in people’s abilities to judge a situation on the merits than obsess over its optics. A quick look at GAP’s marketing propaganda and reports portrays whistleblowers as two-dimensional mannequins without free will or agency. That’s not without purpose.

The constant obsession over “tactics” being counterproductive begs the question – counterproductive to whom? And to whose agenda? Because GAP’s current tactics certainly don’t benefit me.

Perhaps the straw that broke the camel’s back was when Devine told me that our role was to give Congress a “pep talk,” not criticism, lest their staffers turn their backs on us and our attempt to pass legislation to protect federal employees and taxpayers. Also, that lobbyists and these staffers are the “lower common denominator” to whom we should simply defer.

Forgive me, Mr. Devine, but the lower common denominator are the whistleblowers your organization purports to empower.

The sooner you realize this, the better our chances at passing real reforms.

 

If the Whistleblower Protection Enhancement Act fails, what will have caused it?

9:00 am in Uncategorized by MSPB Watch

If WPEA fails to pass, or does pass and causes harm to whistleblowers, will anyone have predicted it?

S. 743/H.R. 3289 is the latest attempt to pass the Whistleblower Protection Enhancement Act. Here are the past attempts. Apparently the past four attempts were stymied at the hands of holdouts in the Senate. The last attempt, S. 372 in December 2010, was blamed on a secret hold cast by Republican Senators. But that narrative conveniently ignores the fact that the Senate and Administration had the chance to pass it in February 2009 as part of the ARRA stimulus package debate, only to be killed by Senator Susan Collins. And it ignores why the bill was pushed all the way to the end of the Congressional term, empowering hostage-takers who placed the secret hold literally in the last hour of the session. At some level, that falls on Harry Reid, who has control over the Senate calendar, and who didn’t schedule debate until December 2010.

It also doesn’t help that the whistleblower community was divided back then, and continues to be, over what’s in the bill. The current sticking point is the summary judgment provision. We’ll see in a couple of years whether it’s a big deal when pro se whistleblowers at the MSPB get handed one defeat after another for being outmatched by professional agency counsel and biased MSPB judges. It’s not difficult to predict the outcome.

But more important is the process by which the professional advocates decide what to lobby for and how to lobby for it. The umbrella organization responsible for WPEA is the Make It Safe Campaign, created by Tom Devine of the Government Accountability Project. MISC is an ad hoc coalition of non-profits, whistleblowers, labor unions, and organizations. There is a steering committee composed of representatives from the Government Accountability Project, the Project on Government Oversight, Union of Concerned Scientists, American Federation of Government Employees, and the American Civil Liberties Union.  This is the largest and most prominent organization that speaks for whistleblowers on Capitol Hill, but no whistleblower is on the steering committee. Absent explicit request, there are no minutes kept and made available to the general membership, and members must go through the steering committee to communicate with each other, submitting their notices for 24-hour approval. There is no general membership contact list available, despite some of us asking for over 6 months. The National Whistleblowers Center used to be on the steering committee but resigned in protest after being excluded from legislative planning. NWC has opposed S. 372 and may oppose S. 743 due to the summary judgment provision.

If WPEA fails to pass, or if it passes and harms whistleblowers, it cannot be said that everything was tried but was met with irrational opposition in Congress. The fact is that not everything has been tried. The community has not been empowered or enfranchised for long-term input and decision-making. The public hasn’t been reached in an effective way. The advocates try to insert legislation in low-key ways, rather than empower a movement. The norms of transparency and reasoned debate are proving to be illusory.

If WPEA fails to pass or fails as law, now you will know why.

Update: Some whistleblowers issued an open letter to Congress yesterday, which was requested and steered by Tom Devine, only to have him request that we not publish it after the MISC Steering Committee got cold feet. Apparently Congress expects applause and cannot tolerate being criticized for passing a bill that fails to grant real due process (i.e. trial by a jury of one’s peers, which goes back to the Magna Carta of 1215 A.D.). The details will be omitted for now but the events of the past couple of days exemplify Sibel Edmonds’ post that the professional advocates sell whistleblowers down the river behind closed doors when it really counts.