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Did a U.S. Senator Block Additional Funding for Whistleblower Protection as Payback?

1:54 pm in Uncategorized by MSPB Watch

Sen. Mike Johanns, R-Neb.

Sen. Mike Johanns, R-Neb.

A few days ago, it was revealed that U.S. Senator Mike Johanns (R-Neb.) objected to, and got removed, a provision in the shutdown deal legislation that would have funded the Office of Special Counsel, the nation’s top federal whistelblower defender, at the levels proposed by the White House, $20.6M (a figure which itself has been deemed “conservative” to address whistleblower case backlogs).

What motivated Sen. Johanns to do this? One possible reason: payback for having been inartfully named in a January 2011 OSC report on inappropriate political activities by Bush Administration officials, around the 2006 election period. Johanns was the Agriculture Secretary at the time.

According to GovExec.com,

OSC faulted travel by Johanns to events with GOP candidates ahead of the 2006 election. It said several events just before the elections that the Agriculture Department concluded were official business and paid for with federal funds were clearly political and should have been funded by the campaigns.

One such event was a Johanns appearance with former Rep. Heather Wilson, R-N.M., and former Sen. Pete Domenici, R-N.M., to tout an expanded Forest Service facility in Albuquerque, N.M.

The report also cited instances where Agriculture deemed events political, such as an appearance by Johanns with then-Rep. Mark Kennedy in Minnesota- who was running for the Senate-where OSC said the agency violated the Hatch Act by failing to receive reimbursement.

Johanns objected to the report and provided documentation, which prompted a partial correction by OSC (updated versions of the report could not be accessed on OSC’s website at the time of publication update: cached version available here).

OSC currently faces record-high levels of whistleblower retaliation complaints and disclosures. In the past four years, OSC’s caseload jumped 29 percent while its budget increases went up only 6 percent.

The return on the investment speaks for itself:

OSC does not just spend taxpayers’ money; it returns substantial sums to the Federal government by pressing for corrective action to remedy waste and fraud. Since 2009, OSC calculates at least $11.4 million has either been directly returned to, or saved by, the government as a result of whistleblower disclosures to our agency. That figure, while impressive, does not reflect the full benefit of OSC’s work: By pursuing whistleblower disclosures, the agency has saved the government hundreds of millions of dollars by preventing wasteful practices and disasters from occurring or recurring.

It should be noted that OSC’s report was issued before the current Special Counsel, Carolyn Lerner, took office, in June 2011.
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The Transparency Establishment’s Echo Chamber

12:16 pm in Uncategorized by MSPB Watch

The Office of Special Counsel was not, in fact, brought up in the FOIA Summit. OSC’s role in FOIA oversight is discussed here, here, and here. Asking why it wasn’t brought up is the same question as why some of the groups involved don’t seek additional funding for OSC, or inquire about its performance or the Merit Systems Protection Board’s performance.

It’s ironic that for all the discussions and plans to add processes and councils and such, an agency with the decades-old ability to strike fear into the hearts of bureaucrats is being overlooked by the transparency establishment. After all, FOIA law requires agencies to reveal their own dirty laundry themselves, and the element of blind trust in government is baked into that law.

I guess acknowledging that that trust is regularly abused is beyond the scope of the FOIA summit.

OSC Defends Whistleblower Who Refused to Disclose Classified Information

10:02 am in Uncategorized by MSPB Watch

Usually it is the whistleblowers who are accused of disclosing classified information, but here is an example of a whistleblower suffering retaliation for refusing to disclose classified information.

On July 25, 2013, the U.S. Office of Special Counsel filed a stay request with the Merit Systems Protection Board on behalf of Brendan Hickey, an Immigration and Customs Enforcement special agent who refused to compromise an investigation and risk disclosing classified information.

The Board granted the stay request four days later. According to the Board, the agent was involved in a top secret, counter-proliferation investigation involving a confidential source provided by the Drug Enforcement Agency. At one point in 2012, he was ordered to create reports on the investigation in the Treasury Enforcement Communications System, but he refused to do so, explaining that the law prohibited the storage of top secret information on TECS.

“Knowing that TECS was not sufficiently secure to store investigative information related to classified material, Hickey believed that inputting such information into TECS would violate federal laws that restrict disclosure of classified information, such as 18 U.S.C. § 798,” the Board said.

(18 U.S.C. 798 is believed to be one of the statutes NSA whistleblower Edward Snowden is alleged to have violated.)

After refusing to comply with other such orders, he was told by a superior that he would be insubordinate, and that “when you challenge the [Special Agent in Charge], you will lose.”

Hickey attempted to comply with the order while following the law, by entering only general details about investigation into TECS. But this was met with a supervisor’s threat to reassign him to “Puerto Rico, the Mexican border, or an immigration group outside his commuting area.”

After the birth of his child in March 2013, Hickey requested leave under the Family and Medical Leave Act. A month later he requested additional, open-ended leave due to medical issues experienced by his wife, necessitating his continued care and support at home. A few weeks later, his supervisors nominated him and another agent to a detail in Puerto Rico, the only two agents nominated in response to a nationwide call. Despite protesting, he reported there on July 8, 2013.

The Board issued a 45-day stay of the agent’s detail, effective August 5 through September 19, during which Hickey will remain in his position and perform regular duties as a Special Agent with ICE, assigned to the ICE office in Providence, Rhode Island (the stay is timed to allow him to complete his affairs in San Juan).

It is not uncommon for OSC to request additional stays while it conducts an investigation into the alleged agency retaliation.

MSPB Chair Susan Tsui Grundmann granted the stay request.

OSC ex rel Hickey v. DHS July 29, 2013

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.

FAA May Be Trying to Evade Disclosure by Creating New FOIA Restrictions Announced via Litigation

9:26 pm in Uncategorized by MSPB Watch

Readers of my website, MSPB Watch, know that I have sued the Federal Aviation Administration earlier this year for withholding responsive documents required to be disclosed under the Freedom of Information Act.

My request asked for all documents pertaining to an assignment that I worked on while employed by the FAA. In that request, I suggested that responsive documents were “in the possession” of certain individuals, but I clarified that there might be others.

The FAA searched those individuals’ inboxes and one database, but nowhere else. The problem is that two of those individuals did not provide emails that are known to exist.

One individual, Richard Clarke, retired before I made my request, and so his account had been deleted. Another individual, Dale Roberts, suffered a computer malfunction; his inbox did not reveal anything; and, as was recently revealed in court documents, he chose not to enable his account’s archives feature.

During my administrative appeal, in October 2012, I reiterated my request for all documents related to the assignment and I said that “If such emails or other documents are not available, a reasonable search would involve any appropriate backup tapes or files.”

The FAA chose to ignore my appeal, so I sued, in January 2013.

In a motion for summary judgment dated March 11, the FAA raised the argument before the judge that its search was complete and that I am not entitled to a search of the backup tapes (or “disaster recovery tapes,” as it calls them) because…

And this is where it gets interesting.

In the March 11 filing, the FAA argued that I am not entitled to a search of the tapes because I did not “specifically” ask for it on request. It cited to the affidavit of Jeb Kreischer, a FOIA program analyst, who signed it under penalty of perjury. Mr. Kreischer did not support his assertion with any policies or documents.

In a response dated April 8, I pointed to a pair of Nov. 2011 letters sent by Victoria Wassmer, the Assistant Administrator for Finance and Management, to another requestor, in which she stated that “if a requestor believes that a search [of email accounts] is not sufficient, the requestor may request on appeal that a NEXTGEN [a/k/a disaster recovery tape] search for records be conducted.”

In other words, I caught Mr. Kreischer in an inconsistency.

In response to that, on April 22, via a supplemental declaration by Mr. Kreischer that was similarly unsubstantiated, the FAA doubled back on its previous assertion and stated that it doesn’t matter when a requestor asks for a tape search; rather, he needs to specifically reference “disaster recovery tapes” in his request.

Moreover, the FAA asserted that “[w]hen requesters state on appeal that they would like such a search, however, the FAA does not consider this statement part of the requesters’ original request.” This is important because if the FAA is late in responding to the “original request,” then it cannot assess search fees. But if the tape search is not part of the original request, then the FAA’s tardiness does not affect its ability to assess fees for the tapes (which can run into hundreds or thousands of dollars).

This is an end-run around the OPEN Government Act of 2007, in which Congress barred tardy agencies from assessing fees as an accountability measure.

That’s exactly what happened here – the FAA was late in responding to my request, but it tried to assess fees for the tapes anyway. I objected and requested it go ahead with its search. Now the issue is going to be decided by the court.

Here’s another red flag that should trouble any member of the public who is concerned about open government issues: the FAA’s assertions in court are actually an attempt to create ad hoc policy to govern when a tape search obligation is triggered. The problem, of course, is that it is attempting to dictate policy to a requestor in court, without giving him any advanced notice.

Does that trouble you? This kind of thing usually troubles the courts.

Next steps: I will be filing a response in court by May 6. Then the FAA and I will meet before the judge on May 17. And then he will render a decision.

By the way, the disaster recovery tapes (or “NEXTGEN”/”NEXGEN” search, as they were called not too long ago), were apparently implemented in May 2008, the same month the FAA received a request from the Office of Special Counsel to preserve all documents for key officials, including then-acting administrator Robert Sturgell. Weird, huh?

Review other litigation documents from Pardo v. FAA here.

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:

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MSPB Watch Invites Public to Form Citizen Oversight Council to Oversee Federal Agencies’ Compliance with Civil Service Laws

9:20 am in Uncategorized by MSPB Watch

Premised on the notion that you must be the change you want to see in the world, MSPB Watch is seeking partners to adopt–in civilian form–the duties of an inspector general for the Office of Special Counsel and the Merit Systems Protection Board. Currently no formal, independent IG exists for either agency.

MSPB Watch is inviting any interested member of the public to form a citizen oversight council. Duties include researching applicable civil service laws and obtaining public information to determine whether OSC and MSPB are complying with these laws. Once formed, the Council would issue regular report cards on OSC’s and MSPB’s performance; make recommendations for reform; conduct “peer review” for any proposed legal or political campaigns to redress grievances; attempt to engage in formal dialogue with government officials; and provide support for any appropriate member initiatives.

Other initiatives could include “teach ins” to educate whistleblowers, federal employees, and the public about their rights under civil service laws.

Interested persons may contact David Pardo at dpardo at mspbwatch dot net for more information.

The Case Against Elaine Kaplan

9:59 am in Uncategorized by MSPB Watch

Dear Whistleblower and Advocate,

As you may know, President Obama nominated former Special Counsel Elaine Kaplan on March 19 for a judgeship on the U.S. Court of Federal Claims. This court, based in Washington, has jurisdiction over government contracts, vaccination fund claims, and other discrete areas. It does not review whistleblower/MSPB claims. The nomination is for 15 years, however it is not uncommon for Federal Claims judges to move on to higher profile positions. For instance, former Special Counsel Alex Kozinski left OSC in 1982 for the Court of Federal Claims, only to become a federal appeals judge on the Ninth Circuit. He is now Chief Judge of that circuit. Same with Randall Rader, the Chief Judge of the Federal Circuit (though he was never Special Counsel).

I don’t know how we all feel about Elaine Kaplan, but the public record, as well as personal anecdotes I’ve heard, are not good. My letter explains why.

I believe, as I explain in the letter, that a person who has made the decisions that Ms. Kaplan made should not be awarded with a judicial post. The Court of Federal Claims is not a high profile position, but it is a stepping stone to more influential positions. I plan to make my opposition heard at this level, and I ask you to join me if you agree.

If you have experiences of your own and can provide documentation to support it, please let me know. The letter is not set in stone. Also, feel free to send this to whomever you wish. I will be collecting signatures for the rest of the week or so.

There will also be an accompanying website that will collect all letters sent: http://thecaseagainstelainekaplan.wordpress.com/

Sincerely,
David Pardo
dpardo at mspbwatch dot net 

Former Special Counsel Scott Bloch Threatens to Sue a critic

11:24 am in Uncategorized by MSPB Watch

From Julia Davis’ LA Homeland Security Examiner:

My articles about disgraced former head of the Office of Special Counsel (OSC) Scott Bloch appear to be a thorn in his side. In an attempt to erase them from the Internet, Bloch is brazenly threatening to sue the webmasters featuring links to my reports. In February of 2013, Bloch pleaded guilty to a misdemeanor charge of injury to government property, related to his hiring of technicians with “Geeks On Call” to conduct the 7-level memory wipe of the computers at the OSC’s office, deleting whistleblower complaints and related computer files.

Bloch is currently attempting to use the said wit to eradicate my articles about him from online circulation by sending out threatening letters on his law firm’s letterhead. He is especially fond of the word “falsehoods,” stating in relevant part, “I direct your attention to the attached which contain falsehoods, cast me in defamatory light. They contain numerous falsehoods, intentional and gratuitous swipes at me and my tenure as Special Counsel that are false and defamatory, demonstrating actual malice. It continues to stand on the internet with its falsehoods. I write to demand that you remove these articles and blogs about me and my time as Special Counsel immediately. This is harmful to my professional reputation as a lawyer… Your demeaning personal attacks impute to me qualities that tend to injure me in my business… If you choose to ignore this and not remove the materials from your internet site and blogs and all caches, I will be forced to sue for an injunction and to seek damages… I will institute an action in Virginia and in Washington, D.C. against you for defamation and actual malice, together with damages and punitive damages. I will also seek damages for civil conspiracy to harm my business… If I determine through discovery that you have worked with others to do this, I will join them as well.”

Ms. Davis seems to have the support of Mark Zaid, “a prominent Washington, D.C. attorney who frequently represents whistleblowers in high profile cases.” Other whistleblowers and their supporters are sure to be interested in Bloch’s heavy-handed attempts to control speech. Here, for instance, are all my writings on Mr. Bloch. Like Ms. Davis, I stand by them and would be willing to defend them in court, even if Mr. Bloch fails to prosecute his conspiracy theories.

For now, I urge all whistleblowers to submit their victim impact statements in USA v. Scott Bloch by May 13 to:

Judge Robert L. Wilkins
333 Constitution Avenue N.W.
Washington D.C. 20001

Make sure to use the subject line: USA v. Scott Bloch, 1:13-cr-5, and abstain from giving out information (names, addresses) about third parties.

Blowing the Whistle on National Security Scandals: A Hypothetical Case Comparison

1:51 pm in Uncategorized by MSPB Watch

Compare the following scenarios:

Scenario A:

  1. Whistleblower A uncovers wrongdoing within an intelligence community agency that implicates classified information.
  2. He tries to go to the Inspector General but is deterred upon finding out it’s essentially a trap.
  3. He tries to go to Congress but is unsure how to do so without blowing his cover.
  4. Unaware of any other options, he goes to the media, believing they can protect his identity.
  5. He may or may not reveal any classified information, but some other violation (holding onto classified documents outside approved channels?) trips him up.
  6. Coverage by the media results in internal investigations. He gets outed and threatened with legal action.
  7. Lawyers at public interest groups swarm to him upon finding out he’s under threat of prosecution for blowing the whistle on state conduct.
  8. Justice Department prosecution follows, maybe it succeeds, maybe it doesn’t.
  9. Public interest lawyers use this opportunity to promote self in the media, use his case to raise funds with corporate-funded foundations, and offer platitudes about government tyranny while offering no advice to other whistleblowers who seek to avoid the same fate.
  10. Future whistleblowers either clam up or encounter a similar fate.

Scenario B:

  1. Whistleblower B comes across evidence of wrongdoing by intelligence community agency.
  2. Knowing that an agency exists to accept classified disclosures of wrongdoing in a confidential manner, Whistleblower B goes to the Office of Special Counsel.
  3. OSC refers disclosure directly to the intelligence committees in Congress and to the National Security Advisor.
  4. Congress becomes aware of gross violations of civil liberties.
  5. Whistleblower B comes under scrutiny in his agency, but since he broke no law, no prosecution follows.
  6. Whistleblower B does come under some form of administrative retaliation, but only then does he go to the media with allegations of retaliation, without disclosing classified information.
  7. He recounts the history of having gone to OSC and Congress.
  8. OSC expresses concerns about the retaliation but admits it cannot protect this individual.
  9. Congress also expresses concerns and flexes its power to pressure the president to put a stop to the retaliation.
  10. Media coverage alternates between what the disclosures might be (and making sure they’re taken seriously by Congress, whatever they are, which leads to FOIAs, lawsuits, and legislative hearings), and taking a look at the lack of protections for national security whistleblowers.
  11. Legislation to protect national security whistleblowers follows.

Now which scenario do you think applies today?