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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.

Grassroots Whistleblowers and Republican Senators Hold Obama Crony Accountable

1:49 pm in Uncategorized by MSPB Watch

Elaine Kaplan

MSPB Watch calls out Elaine D Kaplan.

A few weeks ago, the Senate confirmed the nomination of OPM general counsel/acting OPM director/former Special Counsel Elaine Kaplan to the little-known U.S. Court of Federal Claims. The Court of Federal Claims hears government contracts cases, vaccination fund claims, and other odd legal bits and ends. Past alumni from this court have gone on to the nation’s federal courts of appeals, but this is by no means a guarantee. In fact, since 1982, when this court was created, only one nominee faced opposition in the Senate. Until Kaplan, that is.

On September 17, 2013, the Senate held a vote (itself a rare feat for such nominees), and approved Kaplan’s nomination by 64-35, with 1 abstention. The 35 opponents were all Republicans – a mix of Tea Party and establishment pols, including Mitch McConnell and the whistleblower-friendly Chuck Grassley. No Democrat voted against Kaplan, and 11 mainstream Republicans voted in favor.

Why did they vote this way? Was it because Kaplan is openly gay? Perhaps, though just a few days later the Senate voted, by 98-0, to confirm the nomination of Todd Hughes to the U.S. Court of Appeals for the Federal Circuit. Hughes is the first openly gay nominee to the nation’s courts of appeals. Was it because Kaplan is a woman? Perhaps, though on the same day that she was confirmed, the Senate also confirmed, by voice vote (“all in favor say aye… all opposed say nay… the ayes have it”), the nomination of Patricia Campbell-Smith to the same Court of Federal Claims.

So what’s the reason? Could it be a letter of concern sent by a number of federal whistleblowers, recounting Kaplan’s questionable history as Special Counsel and her uneven commitment to whistleblowers? Perhaps. Was it plain old partisanship? Also plausible.

Kaplan, by all accounts, is an establishment figure in the federal watchdog community. She was awarded for her efforts as Special Counsel by the veal pen entities Government Accountability Project and the Project on Government Oversight, despite her mediocre record as the top federal whistleblower defender. She is close with the federal employment bar. And she played a key role in promoting the Obama Administration’s unprecedented assault on civil service protections (a move which placed her good government allies in an awkward position, no doubt).

But a number of marginalized whistleblowers had the courage to air their concerns to the Senate Judiciary Committee, and in turn 35 Republican Senators were willing to reject the fetid, calcified, elitist, out-of-touch Obama/GAP/employment bar confluence of interests that makes a mockery of rule of law and democracy and exploits whistleblowers with impunity.

It bears mentioning that none of the three alumni from the Court of Federal Claims who were elevated to the federal circuit courts had any Senate opposition at this stage. For Kaplan to move up, she would have to distinguish herself now, and a future president would have to take on the chance of passing a nominee with “baggage.”

There’s a lesson here for firepups, somewhere.

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DC Media Relays OPM Director’s Crocodile Tears for Civil Servants On Last Day in Office

2:16 pm in Uncategorized by MSPB Watch

Various publications covering the federal government relayed concerns by outgoing OPM director John Berry over the “denigrat[ion]” of public service while ignoring his role in the Obama Administration’s unprecedented assault on workplace protections for hundreds of thousands of civil servants, via Berry v. Conyers & Northover. (The “Berry” is for John Berry, on behalf of the Office of Personnel Management).

Whistle blowers

Whistle blowers

That case, which is currently on appeal, has generated the following comments:

Tom Devine, Government Accountability Project:

If the ruling stands, “the merit system will be history.”

Lynne Bernabei, Bernabei & Wachtel, PLLC:

[T]he Obama administration’s support of this position is an integral part of the administration’s increasing secrecy and support of a national security system that is unaccountable.

Judge Dyk, dissenting opinion in Berry v. Conyers & Northover:

The majority completely fails to come to grips with the [Civil Service Reform Act of 1978]. . . the majority’s holding effectively nullifies the statute.

Angela Canterbury, Project on Government Oversight:

Congress must legislate to overturn the wrongheaded over-reach of the Federal Circuit, . . . and to prevent agencies from arbitrarily labeling away the rights of civil servants.

None of the major publications that cover civil service issues mentioned that decision. Instead, we’re treated to this:

Federal Times, April 11, 2013:

After taking over OPM, Berry quickly became known for his optimistic and passionate speeches defending federal employees. As the political winds soured on civil servants in recent years, Berry continued speaking up for feds. At a March labor-management meeting, an angry-sounding Berry warned that the government risks becoming unable to recruit and retain a qualified workforce if it keeps freezing employees’ pay, cutting their benefits, and publicly denigrating them.

Government Executive, April 11, 2013:

Berry has been a vocal champion for federal workers during the last four years, and has a good reputation among lawmakers on Capitol Hill. His exit comes just as federal employees at a number of agencies are starting to feel the effects of sequestration, including furloughs.

The biggest offender seems to be the Washington Post, which served up the following:

Though Berry faced major headaches from computer systems and retiree issues, his greatest frustration was something more fundamental.

“I don’t know if we succeeded in beating back those small-hearted people who somehow feel it is appropriate to denigrate public service,” he said during an interview.

“I don’t know what sort of smallness of mind or heart motivates them, but they need to understand that public service matters. And these jobs are just too important to not be able to recruit the best and the brightest to do them. . . . Do you want Homer Simpson researching cancer for your children’s diseases?”

It was President Obama, Berry’s boss, who, with congressional approval, upset federal workers by freezing their basic pay rates, a freeze now in its third year.

Obama has proposed a 1 percent pay raise for next year, paired with a requirement that employees increase contributions to their pensions.

The freeze happened on Berry’s watch, but it was largely out of his hands.

Meanwhile, Federal News Radio covered its flank a bit by getting positive comments from stakeholders. None of these publications, however, mentioned the decision that could gut civil service protections for hundreds of thousands of employees.

It’s difficult to square Berry’s stated concerns for public servants in the media when he’s trying to strip them of their rights in court. It’s even more difficult to see what’s in it for the free press to give him a pass.
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Letter from Loretto: John Kiriakou Blows the Whistle on Compromised Washington Watchdogs

12:45 pm in Uncategorized by MSPB Watch

Now this is tricky, because these groups helped him navigate the treacherous waters of the mainstream media, with mixed results, during his prosecution and through his send-off to prison. So for John Kiriakou to say the following about groups like the Project on Government Oversight (and implicitly the Government Accountability Project), when they expect loyalty in return (Washington being a transactional town and all), is nothing short of astounding:

No one knows this better than John Kiriakou, the CIA agent who reported to federal prison two weeks ago for blowing the whistle on the agency’s use of torture. During an interview at an Arlington, Va., coffee shop, Kiriakou said the time has come for Washington watchdog groups—organizations like Public Citizen, Project on Government Oversight, Citizens for Responsibility and Ethics in Washington, and others—to admit that President Obama hasn’t come close to making good on his promise to make government more transparent and accountable.

“Dan Ellsberg. He called me again last night,” said Kiriakou, referring to the man who in 1971 leaked the Pentagon Papers and opened the world’s eyes to the United States’ long involvement in Vietnam. “We talk about this all the time. He keeps asking me, ‘Where is the outrage? If this were a Republican administration, people would be in the streets, right? We would be marching in the streets. But people cut Obama a break to the point of irrationality.’ ”

This comes just a few days after this author sent Mr. Kiriakou a letter* urging him to consider who should speak on his behalf. Where it gets complicated is that GAP currently manages his legal defense fund, which is helping to support his family. That should continue unabated, regardless what insights Mr. Kiriakou shares with the world that prove uncomfortable for GAP and its cohorts.

*This author does not take any credit for this development. From his perspective, it is just a welcome coincidence.

Are Good Government Groups Quick to Praise the New Special Counsel?

10:42 pm in Uncategorized by MSPB Watch

Is it too soon to say things like:

With this remarkable record and the extraordinary leadership of Special Counsel Carolyn Lerner, we can expect that as disclosures continue to skyrocket and the caseload grows, [the Office of Special Counsel] will handle their investigations and litigation with utmost efficiency and integrity.

As the Project on Government Oversight did just this past week, or:

The track record under the helm of Special Counsel Carolyn Lerner, who assumed office in 2011, is equally as unprecedented as its increased caseload and having increased productivity by over 50% in the past few years[.]

As the Government Accountability Project did a few days ago?

Consider that there are a few grumbles that have arisen so far concerning OSC’s performance:

Let me be clear: OSC deserves credit for the evident turnaround since the Scott Bloch era. Persistent underfunding continues, in part because the groups mentioned above have not pushed for it before. But this post is not so much about OSC’s performance today, as it is about grounding laudatory statements (and the propensity to make them) with facts. The groups above have a history of jumping to award OSC leadership when, frankly, it did not deserve it. The pattern may be repeating itself here. Facts matter, and the jury is still out.

What’s Missing from the Adulatory Coverage of Obama’s Whistleblower Protections

2:01 pm in Uncategorized by MSPB Watch

Several articles have emerged that contain praise from non-profit groups toward President Obama for taking steps to protect whistleblowers, albeit at a time when more whistleblowers are prosecuted by his administration than ever before. The coverage goes something like this:

Obama’s Justice Department is prosecuting a number of whistleblowers under the Espionage Act.

A government secrecy expert opines that this is unprecedented.

The article mentions Obama’s efforts to expand whistleblower protections through legislation or executive action.

Non-profit groups such as the Government Accountability Project and the Project on Government Oversight applaud Obama for doing more than any other president in history to protect whistleblowers.

What’s missing, however, is any discussion that such steps are mandated by law, specifically 5 U.S.C. 2301(c), enacted by the Civil Service Reform Act of 1978:

(c) In administering the provisions of this chapter—

(1) with respect to any agency (as defined in section 2302 (a)(2)(C) of this title), the President shall, pursuant to the authority otherwise available under this title, take any action, including the issuance of rules, regulations, or directives; and

(2) with respect to any entity in the executive branch which is not such an agency or part of such an agency, the head of such entity shall, pursuant to authority otherwise available, take any action, including the issuance of rules, regulations, or directives;

which is consistent with the provisions of this title and which the President or the head, as the case may be, determines is necessary to ensure that personnel management is based on and embodies the merit system principles. [Emphasis added.]

Key among those “merit system principles” is the protection of whistleblowers.

So is it a fact that Obama has ”done more to affirmatively protect whistleblowers than any other president,” as POGO’s Angela Canterbury recently stated? Yes.

However, it is not out of benevolence or favored policy, but his constitutional duty to “take care that the laws be faithfully executed.” The fact that a president is finally executing a 1978 law should not be news or grounds for applause. We elect presidents to execute the laws.

What’s newsworthy is why it took 35 years to get to this point.

Closing the Loop on NGO Accountability

6:35 am in Uncategorized by MSPB Watch

First, some excerpts from Sibel Edmonds’ highly-recommended Classified Woman:

Chapter 9

Good, affordable attorneys willing to take on the FBI and Justice Department are a rarity in Washington, DC. As far as government watchdog and whistleblower organizations go, none of them call you back unless you happen to be famous. (It took me years to understand the game: high profile cases are cash cows for many of these groups, who use the funds they raise to pay the salaries of their staffs, none of whom are whistleblowers.

Chapter 14

Meanwhile, I called and e-mailed any organization I could find that dealt with whistleblowers and First Amendment cases, those who claimed to be fighting excessive secrecy and executive branch abuses of power. I needed their support and expertise, yet in spite of the fact that my case embodied all these civil liberties, not a single organization lifted a finger to contact me, call me back, or offer any assistance. (While it was a hard blow and a tough pill to swallow at the time, this experience helped me a great deal a few years later, when I formed my own coalition, network and organization to deal with and help government whistleblowers.)

Chapter 15

Soon I started to receive offers of support and solidarity from various whistleblower, government watchdog and public interest nonprofit organizations, something I found bitterly amusing. Where were these groups when I most needed them? Strangely enough, I was helped, in a way, by seeing how they operate. In time, this understanding would become a catalyst for forming my own organization for whistleblowers.

Chapter 16

At the end of my speech, noting their enthusiastic applause, I came to another realization. What I was doing here was preaching to the choir. These people were already informed; all were active in the fight. The question I was struggling to find an answer to was, how do I reach other who are not informed? How do we get through to those who readily have accepted the despotism being marketed to them as security?

During the Sam Adams Award conference, a dark-haired petite woman in her thirties had walked over and introduced herself…. Ann wanted to know if I were planning to appeal the case, because if so, the ACLU would be interested in helping. This made me snap at her, rather rudely. I told her all about my past experience begging for their help-how they had made me wait for months for an answer, only to turn me down. None of their attorneys were interested. Then I pointed my finger and said, “I’m disgusted with all these organizations who preach one thing and then do another-who only approach people and help them if those people are surrounded by publicity.”

Later that day she even tried again, to which I nastily replied, “These whistleblowers all need legal help, and they won’t welcome an organization that has not extended help to them.”

My efforts to expose and reform the government watchdog NGOs as exploitative of whistleblowers have run aground. Not because I failed to prove the allegations, but worse: nobody seems to care. Nobody in the community, at least. This is either because they know or they benefited (or both). There’s nothing to be gained by continuing, and more to lose, at this point.

For the sake of posterity, I’ve collected select posts relating to these contentions at http://mspbwatch.net/category/ngo-accountability/. If you’d like access to any walled-off posts, let me know via my About page.

And take heart – accountability of these groups will continue, albeit in a different form, at the Fact Check page.

Cross-posted at mspbwatch.net.

POGO’s Danielle Brian urges consensus, challenges others to fact-check them

3:02 pm in Uncategorized by MSPB Watch

In a posting today, POGO Executive Director Danielle Brian urged Americans to stop being “jerks” to each other, reach out to the opposition, and challenge claims and assumptions they and others make. Importantly, she noted “it is the job of whoever is elected to include and engage the minority” and that “We at POGO are going to be reaching out to you.” She finished by urging people to “reach back so we can all get on with fixing this mess. But don’t forget to check our facts!”

Sounds fair, but will Brian walk the talk?

Here are a few claims POGO made in the past year that I have publicly challenged. Will POGO engage this minority view in the whistleblower community, reach out, and respond to this particular fact-checker?

Ms. Brian, you have my email address.

Questionable claims made by POGO in 2012:

June 5: Claiming to protect whistleblowers’ interests while betraying those interests behind closed doors in Congress when it really counts. Here and here, and subsequent coverage.

June 22: Claiming that a prior version of the Whistleblower Protection Enhancement Act that contained national security provisions “would provide intelligence community workers safe, legal channels for disclosures of wrongdoing,” while ignoring that such channels formally exist in the Office of Special Counsel and that the bill would not have altered the status quo appreciably.

August 10: Generally claiming to being committed to openness and free speech and helping whistleblowers do the same while excommunicating a whistleblower from an informal whistleblowing community for asking too many questions.

September 19: Claiming that “prominent whistleblowers” have “thrown their support” behind a version of the WPEA that does not include jury trials, national security protections, and retroactivity when their support went toward a markedly stronger version of the bill.

September 20: Claiming that it was instrumental, through a coalition organization, in defeating a poison pill provision when it actually attempted to dissuade the grassroots from doing so.

September 26: Claiming that they applied “strategic pressure” to try to pass the WPEA when their advocacy has been muted and excluded the grassroots. Also, claiming that an “unforeseen obstacle” in Congress prevented passage of the WPEA when the same thing happened “in years past” without planning for it.

October 10: Claiming that the Presidential Policy Directive that purports to protect intelligence community employees is a “victory” for whistleblowers when several sources have questioned the efficacy and intent of the directive.

POGO: the Obama Administration’s “issue validator” on whistleblowing issues

9:33 pm in Uncategorized by MSPB Watch

“Issue Validator”: That’s the term coined by Firedoglake for groups that bless bad administration policies through action or inaction to quell public outcry.

Here’s an example from the days of the Obamacare legislative fights:

One of the things that made a fight for a public option possible was because there were no “veal pen” validators occupying the health care space.  Nobody knows who HCAN is.  The White House tried to press the unions and other veal pen groups into service but progressives standing there ready to shoot on sight made everyone else back away for fear of losing their own credibility.

People think the “veal pen” phenomenon is insignificant, but it’s not.  The abortion fight — like the environmental fight — is extremely difficult to wage online, because you can’t activate those who care about the issue if the “brand names,” the issue validators, are telling them everything is fine either by action or inaction.

Here’s another example from when a liberal White House advisor was driven out by a Glenn Beck smear campaign:

They are the institutional liberal validators who telegraph to liberals that there are problems, that things are happening that are not good for them.  They are trusted to decode the byzantine rituals of government and let the public know when their interests are not being served, that it’s time to pay attention and start making a racket.  When they fail to perform that task, the public is left with a vague feeling of anxiety, intuitively understanding that something is wrong but not knowing who or what to blame.

Now compare with this statement by POGO’s Angela Canterbury about the recent White House policy directive regarding national security whistleblower “protections”:

We have repeatedly urged that anti-leak efforts include authentic protections for those who make lawful disclosures of wrongdoing in the intelligence community. With the stroke of his pen today, President Obama did just that and took unparalleled action to protect whistleblowers, for which we are truly gratified and grateful.

Here are some different reactions about this policy directive:

The ties between POGO and the Obama administration are not a secret. If POGO wants to be a cheerleader for the president, that’s their prerogative. But their power in being an “issue validator” comes from exploiting the public’s ignorance of the gap between their rhetoric and reality.

Don’t give them that power. Educate yourselves about POGO’s ways and motives in the whistleblowing space.

POGO embarrasses watchdogs everywhere with sycophantic Obama email

6:36 am in Uncategorized by MSPB Watch

whistleblower

(Photo: ElectronicFrontierFoundation/flickr)

I woke up this morning to the following embarrassment:

The work we do at POGO isn’t easy—our efforts to protect whistleblowers are particularly hard-fought. We have spent years seeking specific protections for national security and intelligence community workers, and there has been enormous resistance. Finally, we have been heard!

Sign our petition saying thank you and urging further work on whistleblower protections.

On October 10, President Obama issued a historic directive that for the first time provides national security and intelligence community workers with protections against retaliation when they legally report waste, fraud, and abuse. Given our strong criticism of the Administration for the prosecutions of national security whistleblowers, we wanted to be sure to herald this unprecedented policy that includes even more of our recommendations than we had hoped.

Please Sign Our Petition to President Obama.

Of course, the directive is not a panacea, and the strength of the policy will depend on how it works in practice. The President directs agencies to create procedures for internal review of claims by the Inspectors General, which means we need to push for the strongest procedures and rights in practice.

It’s hard to satisfy a watchdog! Still, it’s not often that we can celebrate a victory like this. We are so often demanding, pushing, and criticizing—it’s very important that we also give thanks when it is due.

This isn’t the first time POGO has resorted to flattering those they’re supposed to hold accountable. In 2011, they gave a “transparency award” to Obama, only to meet resistance and criticism by real whistleblowers and then have the administration use that award as a shield against criticism. Expect the same thing to happen now – rather than demand Obama to faithfully execute the law, POGO thanks him for it. Which is fitting for this administration’s view of justice as charity.

POGO calls itself a “watchdog.” It is not. A better term is a lapdog engaging in partisan politics before an election. Shameful.