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Public advocacy saves whistleblowers from administrative minefield

3:48 pm in Uncategorized by MSPB Watch

Great news out of Congress: legislators in the House of Representatives negotiating the Whistleblower Protection Enhancement Act have decided to scrap the provision that would give the Merit Systems Protection Board summary judgment powers.

Here’s a detailed writeup why this would have been a bad deal for whistleblowers; in short, it would have prejudiced many whistleblowers with agencies’ sophisticated legal maneuvering that would have denied them the ability to tell their side of the story to a third party.

What made this happen? As stated by Tom Devine of the Government Accountability Project, in a community conference call earlier today: sustained public protest.

“Congress heard you,” Devine said.

What lessons can we draw from this? Simply put, public outcry works. Backroom negotiations do not.

Devine also told the community that jury trials are off the table, and Senators Kyl and Sessions are demanding that even if bench trials are introduced, agencies should still have an easier time defeating whistleblower complaints. This is disappointing because the original deal was that if jury trials are introduced, then agencies’ burden of proof is lowered (to preponderance of the evidence), but if bench trials are introduced, the burden of proof stays the same (clear and convincing evidence).

Kyl and Sessions are reneging on their promise.

The already-passed Senate version of the WPEA contains this very compromise: jury trials and preponderance of the evidence standard. The initial House version contained the other compromise: bench trials and clear and convincing evidence standard.

If clear and convincing evidence is good enough for an MSPB judge, it should be good enough for a federal district judge. (It should be also good enough for a jury, but that point’s moot).

Kyl and Sessions should answer why they reneged on their earlier promise.

How do we seek change?

Look to the summary judgment example.

Finally, we should expect Congress to pass the WPEA in September, Devine said.

Has Obama done “everything humanly possible” to pass the Whistleblower Protection Enhancement Act?

4:39 pm in Uncategorized by MSPB Watch

Politifact takes a look. Tom Devine of the Government Accountability Project thinks so, but in the very next entry, dated June 9, 2009, Obama’s own DOJ staff casts doubt on the legislation.

Of course, the public’s view of the legislative process is probably more restricted than that of Devine, who’s not a stranger to the White House.

Sadly, this isn’t the first time that Devine has revealed a looser commitment to the truth.

Maybe someone should politifact Devine’s various prevarications.

Dissenters’ Digest for June 10-23

3:00 pm in Uncategorized by MSPB Watch

Stonewalled, Sen. Chuck Grassley (R-IA)

Dissenters’ Digest takes a look back at news stories covering whistleblowers, watchdogs, and government accountability. Look for it every other Saturday evening at www.dissentersdigest.com.

Contempt: A House committee voted to hold Attorney General Eric Holder in contempt for refusing to submit documents in connection with the Fast and Furious gunwalking scandal. President Obama invoked executive privilege, for the first time, to shield the documents from Congress. The measure may soon be presented to the House for a final vote. Meanwhile, Democrats are decrying the move as a political “witch hunt.”

Stonewalled: Senator Chuck Grassley is getting stonewalled by the Food and Drug Administration over an inquiry that it’s been spying on federal whistleblowers. The Senate and related House investigations were sparked by a lawsuit filed by six FDA whistleblowers who were allegedly targeted for surveillance. The National Whistleblowers Center is representing them in court. Relatedly, the Office of Special Counsel, which is also investigating the FDA over the same matter, released a memo this week to the federal government, urging agencies not to spy on whistleblowers. Doing so, the memo said, might lead OSC to conclude that retaliation is afoot.

Looking Backwards: President George W. Bush ignored a number of the CIA’s pre-9/11 warnings, according to new FOIA documents declassified and revealed this week.

Cover-Up: An Army Lt. General is accused of blocking a corruption probe in Afghanistan to help President Obama’s re-election.

Below the Fold:
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GAP and POGO are peddling misinformation about the disclosure of classified information and the WPEA. Why?

9:17 am in Uncategorized by MSPB Watch

Check out these articles and their comments:

http://pogoblog.typepad.com/pogo/2012/06/the-danger-of-hasty-anti-leak-legislation.html (pending moderation)

http://whistleblower.org/blog/42-2012/2055-lieberman-feeds-off-leak-hysteria-calls-for-de-facto-official-secrets-act#comments

Both make the same point: that no safe, legal channels exist for the disclosure of classified information. This is simply not true.

The Whistleblower Protection Enhancement Act would not create any such channels, because Section 119 of S. 743 would only modestly upgrade the Intelligence Community Whistleblower Protection Act of 1998 (which upgraded the Inspector General Act of 1978), but neither provided for confidential disclosure channels. And WPEA still would not.

Only the Civil Service Reform Act of 1978 did so, by creating and authorizing the Office of Special Counsel to receive classified information, and guaranteeing confidentiality.

But it’s not convenient for GAP and POGO to say that now, apparently (despite GAP acknowledging it in 2006, on page 5).

Let them know you expect good government groups to be honest with the public:

dbrian@pogo.org

beae@whistleblower.org

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.

Dissenters’ Digest for May 20-June 9

4:00 pm in Uncategorized by MSPB Watch

(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 →

Veal Pen Watch: Why the MISC Steering Committee is the wrong group to represent whistleblowers in Congress

6:40 pm in Uncategorized by MSPB Watch

The bottom line is that groups like POGO, ACLU, AFGE, and UCS have other business in Congress and cannot risk exposing/cajoling/strong-arming politicians on whistleblower issues. This is why I was asked to help kick-start a grassroots lobbying campaign, to give cover to GAP and MISC to get better protections. Except, when it really counted, GAP caved to the other groups’ reticence to do anything but settle for weak provisions.

The whistleblower community needs somebody in Congress who isn’t afraid to name names. There is no substitute for jury trials. If any politician is against them, they should be required to say so, and why, in the light of day, and then answer to his or her constituents.

That GAP, POGO, et al are throwing in the towel should serve as a wake up call to federal whistleblowers everywhere.

An Open Letter to the Make It Safe Campaign Membership

8:27 am in Uncategorized by MSPB Watch

Dear MISC member,

Attached, please find a whistleblower letter to Congress drafted by me and fellow whistleblower Evelynn Brown of WhistleWatch.org. We request your consideration and signature.

In the interest of full disclosure, however, the MISC Steering Committee expressed initial objections to it as is, but after we refused to dilute it, they wished to add a comment. That comment is as follows:

The Steering Committee supports and has fought hard for the reforms highlighted in the letter. We have been told repeatedly by Senate and House members that these are not passable in this political climate. It is indeed not a favorable climate for federal whistleblowers. In fact, we are surprised to have any access to court at all given the House leadership’s opposition to the idea. But though we have been repeatedly told that the bill goes as far as it can go, it does not mean we shouldn’t keep asking for what’s right. However, that is with a caveat: there will come a time when we will need the support of all of us to get some reforms through to help as many whistleblowers as we can. There will be a moment when the perfect will become the enemy of the good. We hope that at that time, all federal whistleblowers will stand in solidarity with one another to get a law that serves as many as possible.

My initial response to that comment is available here: http://mspbwatch.net/2012/06/05/pogo-will-have-to-choose-between-whistleblowers-and-congress/. Now I also interpret it as a heavy-handed attempt to quell dissent at the moment of truth. Yesterday, Tom Devine admitted that he expected any community letter to be a “pep talk” for Congress, thus rendering the one I attached counterproductive, or some such thing. One question comes to mind: where in GAP or POGO’s numerous blog posts is any discussion and naming of politicians who oppose basic Magna Carta jury trial rights? How can we say that this is not a good climate for federal whistleblowers when we’re witnessing unprecedented disgust with Washington, public exacerbation with waste, fraud, and abuse, numerous corporate whistleblowers win multi-million dollar awards weekly, and a number of law firms start up whistleblowing practices? Who works for whom – Congress for us, or us for lobbyists and Congress? Why are we accepting as given the status quo – if a politician is against these sensible reforms, let them say so, and why, in the light of day. Until that happens, no, this is not good enough.

In any event, these are just a few rebuttals that would take place if we had a healthy, functioning dialogue in the community. We whistleblowers have lost our voice, handing it over to others who may not necessarily have our best interests at heart. For one thing, there is no whistleblower with voting power on the Steering Committee, which may be why we find ourselves at odds now.

I wish for you to know where the Steering Committee stands with regards to WPEA, which position diverges significantly from the community’s, and is a direct result of failure to substantially involve and be transparent with the whistleblower community. Based on conversations with Steering Committee members, it is unlikely that we will have jury trials, be rid of summary judgment, or divert substantial impact cases from the Federal Circuit, because once the bill passes through Congressional committees, that’s it. The bill may not even be retroactive, denying its coverage to all of us who worked on it and are waiting for our day in court.

Emailing you directly, without supervision or control by the Steering Committee, is a product of our frustrations with such lack of transparency and free flow of ideas. Consider this an initial expression of no confidence in the Steering Committee.

If you wish to sign on to the letter, please email me at [dpardo220 at gmail dot com].

Sincerely,

David Pardo
Founder, mspbwatch.net
Former Attorney/Advisor, Federal Aviation Administration

Open Letter May 21 (.docx)

 

POGO will have to choose between whistleblowers and Congress

7:26 pm in Uncategorized by MSPB Watch

POGO’s Angela Canterbury, Director of Public Policy, sits on the Make It Safe Campaign’s (MISC) Steering Committee. Fellow whistleblower Evelynn Brown and I wrote a grassroots whistleblower letter about the Whistleblower Protection Enhancement Act. Here it is. We asked Tom Devine, Legal Director of the Government Accountability Project, to send that letter to the MISC general membership for signatures (GAP is the gate-keeper of the MISC list serv; we don’t know who’s on it, despite asking for the contact list for over 6 months).

Per GAP’s usual protocol, they send such requests to the Steering Committee for 24-hour approval. POGO’s Angela Canterbury wanted to attach a note from the Steering Committee along with our letter. I placed certain conditions on it, and now I’m waiting for POGO and/or GAP to respond.

Here’s the email chain:

Angela Canterbury, Director of Public Policy, Project on Government Oversight:

This letter seems much more reasonable, but Tom, please ask them to make the edit below.I think there ought to be a Steering Committee message to this effect that accompanies the letter.Something like:

The Steering Committee supports and has fought hard for the reforms highlighted in the letter. We have been told repeatedly by Senate and House members that these are not passable in this political climate. It is indeed not a favorable climate for federal whistleblowers. In fact, we are surprised to have any access to court at all given the House leadership’s opposition to the idea. But though we have been repeatedly told that the bill goes as far as it can go, it does not mean we shouldn’t keep asking for what’s right. However, that is with a caveat: there will come a time when we will need the support of all of us to get some reforms through to help as many whistleblowers as we can. There will be a moment when the perfect will become the enemy of the good. We hope that at that time, all federal whistleblowers will stand in solidarity with one another to get a law that serves as many as possible.

If you agree, Tom or Shanna, will you please let David and Evy know that we’d like to send this note along with the letter?

Me:

I will consent to Angela’s note to go along with ours only if she names the politicians who do not support jury trials and who insist on summary judgment. That message will then be made public. If not, let me know if our message will go through anyway, and if not, why. That message may be made public as well, at my discretion.

Will POGO cover for House members who oppose basic due process rights? Will the Steering Committee censor our letter from MISC members? Remember, they are self-proclaimed transparency and accountability advocates.

This is what political malpractice looks like

2:22 pm in Uncategorized by MSPB Watch

An obsequious message from the Make It Safe Campaign Steering Committee, carrying water for unnamed House Republicans:

The Steering Committee supports and has fought hard for the reforms highlighted in the letter. We have been told repeatedly by Senate and House members that these are not passable in this political climate. It is indeed not a favorable climate for federal whistleblowers. In fact, we are surprised to have any access to court at all given the House leadership’s opposition to the idea. But though we have been repeatedly told that the bill goes as far as it can go, it does not mean we shouldn’t keep asking for what’s right. However, that is with a caveat: there will come a time when we will need the support of all of us to get some reforms through to help as many whistleblowers as we can. There will be a moment when the perfect will become the enemy of the good. We hope that at that time, all federal whistleblowers will stand in solidarity with one another to get a law that serves as many as possible.

Yes, let’s keep “asking” for Magna Carta rights for another 30+ years. Maybe this time things will be different.