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White House Admits NSA Disclosures Raise “Legitimate Questions” for U.S. Allies

5:51 pm in Uncategorized by MSPB Watch

From The Guardian:

The White House conceded on Monday that revelations about how its intelligence agencies have intercepted enormous amounts of French phone traffic raised “legitimate questions for our friends and allies”.

In a statement released after a phone call between Barack Obama and his counterpart, François Hollande, the White House made one of its strongest admissions yet about the diplomatic impact of the disclosures by the former NSA contractor Edward Snowden.

The French government had earlier summoned the US ambassador in Paris on Monday to demand an urgent explanation over claims that the National Security Agency had engaged in widespread phone and internet surveillance of French citizens.

The French daily Le Monde published details from the NSA whistleblower Edward Snowden, suggesting the NSA had been intercepting French phone traffic on what it termed “a massive scale”.

Well, of course. This was obvious to anyone able and willing to recognize the significance of Mr. Snowden’s disclosures to the public interest, as well as the fact that he, like many whistleblowers, was shut out of the democratic process because of the failures of internal channels and whistleblower protections.

At the risk of inflaming passions in the whistleblower community, it bears asking: will the thought leaders in whistleblower circles who got it so very wrong about Mr. Snowden own up to their errors in judgment?

A Few Questions for Filmmaker James Spione about SILENCED

11:34 am in Uncategorized by MSPB Watch

SILENCED, a new film about whistleblowers by filmmaker James Spione, is currently in post-production. The film features three Government Accountability Project clients (Thomas Drake, John Kiriakou, and Peter Van Buren) and one GAP employee (Jesselyn Radack). Here is the trailer.

The film’s promotional material states it will be “offering an analysis, along with a number of independent experts and thinkers, of what [the whistleblowers'] chilling ordeals mean for the future of our country.”

There is no doubt the individuals involved had good intentions when they blew the whistle on various government wrongdoing. There are, however a few wrinkles in several of their stories that I hope will be explored by the independent expert and thinkers, if not Mr. Spione himself.

For instance, concerning Ms. Radack’s account, will the film explore the fact that the emails she believed to have been purged and denied from the court were, in fact, submitted and denied to John Walker Lindh under the court’s protective order?

Will the film explore the fact that Ms. Radack apparently did not make her disclosure concerning Lindh’s allegedly unconstitutional treatment to the U.S. Office of Special Counsel, which could have accepted her dislcosure confidentially, thus preventing any breach of the attorney/client privilege?

Will the film explore the fact that Ms. Radack did not, for some reason, appeal her termination with either the Office of Special Counsel or the U.S. Merit Systems Protection Board, as had been her right as a Department of Justice employee (over which both OSC and MSPB exercise jurisdiction), where no statute or executive order bars such jurisdiction?

Will the film explore Ms. Radack’s stated interest in ensuring that the Office of Special Counsel “scrupulously and fully comply with its statutory obligations to protect federal employees from [prohibited personnel practices],” given OSC’s “immense importance to national security,” before apparently neglecting this interest upon taking a job with the Government Accountability Project?

Will the film explore the fact that Mr. Drake could have, at least under the law, submitted his disclosures to the Office of Special Counsel for referral to Congress, but did not do so, choosing to go to the media with all of the attendant consequences that followed?

Will the film explore the fact that even if the government’s prosecution of Mr. Kiriakou for his admitted violation of the Intelligence Identities Protection Act of 1982 was motivated by his public interviews about the CIA’s torture techniques, the government had legally justified grounds to do so, given that whistleblowing is not a shield against misconduct?

Let me clarify: there is no excuse for government torture, wiretapping, or denial of rights. This is, or is supposed to be, a nation of laws. And that applies equally so to whistleblowers who seek to bring misconduct to light. Good government activists, advocates, and filmmakers do the public no favors by presenting one-sided accounts that omit, distort, or mischaracterize the rights and responsibilities that face whistleblowers in the course of committing the truth. I hope this film does nothing of the sort.

P.S. if an activist chooses to engage in non-violent disobedience, more power to him/her. There is a rich and storied history of civil disobedience in America to raise awareness and bring about change. But the key word is “choose.” Civil disobedience is not something that can be elected after ignorantly violating the law and then paying for it. The latter is simply propaganda.

Thomas Drake and John Kiriakou: Martyrs for rule of law or avoidable casualties of a broken system?

8:40 pm in Uncategorized by MSPB Watch

What do Thomas Drake, John Kiriakou, and their representative in GAP, Jesselyn Radack, have in common?

None went to the Office of Special Counsel when they blew the whistle.

Does it matter? Would it have mattered?

If you were faced with a crisis of conscience at work – if your employer was torching the Constitution, what would you do? Exhaust all reasonable channels before going public? Rush to the nearest newspaper outlet? I’m all for the higher moral principle argument: breaking an unjust law to save the rule of law, especially when the arsonists suffer no consequences.

But there’s still an open question that remains. Why didn’t they go to the only place that is external to their agencies and can provide them with confidentiality and forward their disclosures directly to Congress and the National Security Advisor?

Whether OSC would have done so is a different matter: that’s the “Scott Bloch argument.”

But Bush and company started shredding the Constitution when Clinton-appointee Elaine Kaplan was still the Special Counsel.

Did they know OSC could have accepted their disclosures? Did they even know of OSC?

This is more than who was Special Counsel at the time. It’s about the role of OSC within the national security scheme and its treatment by the establishment (including the NGOs). If it’s ignored for decades and gets treated like the ugly stepchild of the federal bureaucracy that nobody talks about, it can’t help the country when a rogue element in the White House turns its sights on the Constitution.

Seen from this perspective, it’s no wonder Drake and Kiriakou never went to OSC, and it’s no wonder they trashed their careers.

But you won’t hear this argument from Radack, who did exactly what they did, and suffered for it, albeit without the threat of jail time.

Nor can she talk about it without making things uncomfortable for her colleagues, who helped stand up OSC and are responsible, in the veal pen sense, for what OSC is and is not.

The elephant in the federal whistleblower community

7:02 am in Uncategorized by MSPB Watch

Last night, Department of Energy whistleblower Joe Carson sent the following message about Tom Devine, legal director of the Government Accountability Project:

To whom it may concern in federal whistleblower community.  (I am sorry if I am sending this to anyone who has asked to be removed from emails from other members of the federal whistleblower community, I tried to use a more updated list.)

in the past year, I have spent about 15K in:  1) obtaining expert, independent, legal opinion on my contentions of misinterpretation of key civil service laws since 1978, and 2) in filing briefs at US Supreme Court in a case against U.S. Office of Special Counsel (OSC).  Tom Devine actively thwarted both efforts, as best I can tell – I surmise he advised OSC to do what it could to evade having the Supreme Court review how it interprets key aspects of its duties (since OSC has a mandate to “act in the interests” of feds who seek its protection, why wouldn’t it want the Supreme Court to review it interpretations of law – in fact agencies regularly file briefs at Supreme Court basically saying “we believe we are interpreting the law correctly, but would welcome a Supreme Court review.”

I cannot tell you how many times people in media, Congress or White House have told me something  like “get Tom Devine to call for an Office of Legal Counsel review to resolve your “broken covenant” concerns, because the media will then pick up on it, driving Congressional and Administration attention.”

He does not disagree with the legitimacy of my concerns about 34 years of lawbreaking at OSC/MSPB and Presidential level – lawbreaking by omission in what they have not done to protect feds from PPPs – all 12 varieties codified in law, not just the whistleblower reprisal variety – and have not done in ensuring OSC is able and willing to receive classified whistleblower disclosures and process them in accordance with law, including providing the mandated confidentiality to the whistleblower.

Instead his mantra is “no looking back, but we can make improvements going forward.”   How convenient to his exploitative, self-serving, agenda by which we remain victims forever, precluded from any justice.   Others at GAP, specifically Jess Radack will NOT take him on about it, apparently she fears for her job if she does.   So she betrays GAP clients who are victims of “Obama’s war on (classified) whistleblowers.”   By her sworn duties as an attorney representing such classified whistleblowers who are  alleged to have unlawfully leaked classified info, she should be banging the drum that the only legally established channel by which a federal employee (or federal contractor employee) can confidentially make a classified whistleblower disclosure – OSC – is unable and/or unwilling  to receive such classified disclosures (OSC has neither  the special equipment nor people with the requisite security clearances).   That is highly germane to Obama’s war on classified whistleblowers – that the primary lawful way Congress created to make such classified disclosures is not available to them.

Continue reading at

Nobody, and I mean nobody, is saying that Carson is wrong, or that I was wrong in my contentions against Devine, either. But almost nobody is willing to buck the system and publicly support Carson’s efforts to resolve these issues or my and others’ efforts to enfranchise whistleblowers in legislative advocacy. What do they say, behind closed doors? Here are a few categories of responses:

Those who privately acknowledge the validity of Carson’s concerns but do nothing about it: In this category fall FAA whistleblower and FAA Whistleblowers Alliance director Gabe Bruno and TSA whistleblower Robert MacLean. Bruno is loathe to “alienate” GAP because it can help whistleblowers, including FAA whistleblowers, achieve the 2% success rate at the MSPB. MacLean is Devine’s client. Neither have done much, if anything, to advance Carson’s concerns.

Those who defend Devine on the grounds that he’s a good guy who helped them with their cases, but say nothing about miscellaneous concerns about Devine: Marine Corps whistleblower Franz Gayl and White House whistleblower Gordon Hamel, who were represented by Devine in their cases.

Those who defend GAP but say nothing about concerns about Devine: NSA whistleblower Thomas Drake.

Those who impart advice about advocacy tactics, civility, respect, etc. but say nothing about concerns about Devine: PHS whistleblower Don Soeken, FAA whistleblower Gabe Bruno, and Emory whistleblower James Murtagh.

These are serious issues. We can’t afford to waste time with power games and whisper campaigns because of a sense of indebtedness to Tom Devine. For people who themselves spoke out against wrongdoing and wanted to be heard on the merits, it’s highly hypocritical to dismiss or consciously ignore allegations of wrongdoing within the community on the basis of personal loyalty or fear of upsetting the status quo. Carson is correct: there won’t be peace in the community until these issues are addressed and resolved.

Dissenters’ Digest for April 15-21

4:00 pm in Uncategorized by MSPB Watch

Dissenters’ Digest takes a look back at the week’s stories covering whistleblowers, watchdogs, and government accountability. Look for it every Saturday evening at

Justice Department Withheld Evidence of Flawed Forensic Procedures Used in Criminal Cases in the 1990′s: The Washington Post reports that the Department of Justice failed to notify defendants or their attorneys of possibly exculpatory evidence of flawed forensic procedures. FBI whistleblower Dr. Frederic Whitehurst disclosed improper procedures in the FBI crime lab almost 20 years ago, which led to a nine-year DOJ task force to determine if any defendants were wrongfully incarcerated. The Post notes in a separate article that the DOJ task force “operated in secret and with close oversight by FBI and Justice Department brass — including [then-Attorney General Janet] Reno and [FBI Director Louis] Freeh’s top deputy — who took steps to control the information uncovered by the group.” The National Whistleblowers Center, which counts Dr. Whitehurst as a director, has more coverage of this story.

Office of Special Counsel Roundup: The Office of Special Counsel issued a rare subpoena in the case of Pinal County (Arizona) Sheriff and Congressional candidate Paul Babeu, who is being investigated for violating the Hatch Act. The Arizona Republic reports that ”[t]he special counsel is looking into allegations that Babeu and several key aides were working on his congressional campaign with county resources or while on the clock.”

Special Counsel Carolyn Lerner is quoted in a Federal News Radio article about the GSA conference spending scandal. Lerner states that “[t]he value of this isn’t just about the $820,000. It’s really also about the scrutiny it brings to government waste by this one example. . . . Congress is holding hearings. Agencies now are going to be treading more carefully about the way they are spending money.”

Elsewhere, Senior Legal Advisor to the Special Counsel Jason Zuckerman speaks at a panel about ethical culture in government. Zuckerman notes that “[w]e are seeing a huge increase now in people who blow the whistle” and that “[w]e are getting about 2,800 in prohibited personnel practice complaints annually; two years ago, it was about 2,200. In 2002, it was about 1,600.”

Below the Fold:

–The Senate Committee on Homeland Security and Governmental Affairs reports S. 743, the Whistleblower Protection Enhancement Act, to the Senate.

–The prosecutor in charge of the bungled Thomas Drake whistleblower prosecution is leaving the Department of Justice.

–A whistleblower who exposed GSA’s excessive conference spending testifies in front of Congress.

–Following the conference scandal at the GSA, the nonprofit watchdog Cause of Action wrote to OMB seeking a government-wide audit of agencies’ adherence to whistleblower laws. Separately, CoA is seeking from the Office of Special Counsel any whistleblower complaints it received about the GSA.

–LGBT activists plan to press the White House to sign an executive order prohibiting federal contractors from sexual orientation discrimination. Here’s a profile of one of the groups involved.

–A U.S. soldier blows the whistle on photos of troops posing with corpses in Afghanistan.

–A whistleblower from the Department of Veterans Affairs files a retaliation complaint with the Office of Special Counsel after disclosing “improper accounting measures regarding PTSD treatment of veterans.”

–Despite promising to strengthen the Federal Election Commission and “nominate members committed to enforcing our nation’s election laws,” President Obama has yet to come through on either promise.

–Julian Assange, founder of Wikileaks, launches a talk show on Russia Today.

–A State Department whistleblower alleges a high-level U.S. official engaged in sexual relations on the roof of the U.S. embassy in Iraq.

–The chief of police at UC-Davis is stepping down following a scathing report about the widely-condemned pepper spray incident there last November.

–A federal judge rules against CIA whistleblower “Ishmael Jones,” who wrote a scathing book without the agency’s permission. The whistleblower will forfeit all book profits to charity.

–NSA whistleblower William Binney discusses the agency’s billion dollar surveillance facility in Bluffdale, Utah.

–The Center for Progressive Reform looks at how OSHA became stymied by anti-regulatory causes.

Slate looks at how America came to torture its prisoners.

–An ex-UK ambassador comes out in support of Bradley Manning.

–The mastermind behind the Watergate efforts to discredit Pentagon Papers whistleblower Daniel Ellsberg has died at the age of 80.

–Walmart covered up a massive bribery scandal in Mexico.

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