The National Whistleblowers Center is on record that Department of Defense contractors already had access to jury trials, and that Section 827(e) of the NDAA Bill, the IC loophole, (now codified at 41 U.S.C. 4712(e)) was a new provision that did not previously exist in the law.

So why did it get tacked on to a bill supposedly enhancing rights for government contractors who blow the whistle?

Here’s a relevant timeline of events related to NDAA lobbying:

• Fourth Quarter of 2012: The Government Accountability Project lobbies Congress for passage of H.R. 4310 (the NDAA bill).
• Monday, Dec. 10, 2012: Via email, GAP solicits signatures for an organizational petition letter (.docx).
• Monday, Dec. 17: GAP emails the signatories to the petition letter, saying that “[t]he following has not been publicly announced yet, but we have been informed that the federal contractor provision – through our advocacy and staff negotiations – has overcome opposition.” (Emphasis added.)
• Tuesday, Dec. 18: A House/Senate conference approves section 827(e), stripping protections for intelligence community contractors.
• Wednesday, Dec. 19: GAP asks the signatories to hold off on publicizing the petition letter.
• Wednesday, Dec. 19: NWC issues a “Take Action” alert, both via email and a website announcement, for the public to “urge Congress to protect National Security Whistleblowers.”
• Friday, Dec. 21: Congress passes the NDAA bill with the loophole intact.
• Friday, Dec. 21: GAP praises Congress for its action but also criticizes the House Permanent Select Committee on Intelligence for insisting on inclusion of the loophole.
• Monday, Dec. 24: GAP emails members of the whistleblower community with news of the bill’s passage.
• Wednesday, Jan. 2: President Obama signs the NDAA bill, issues a signing statement that concerns some members of Congress and divides GAP.

Please note: this bill would not have protected Edward Snowden, even assuming the loophole was not enacted and he used approved channels, because the bill takes effect only on July 1, 2013 (see Sec. 827(i)) and applies to contracts and task orders entered on or after that date.

But this bill also does nothing to protect others who are concerned, as Snowden was.

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, 5 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.

In early June, Congress, as channeled by lobbyist Tom Devine of the Government Accountability Project, was keen on making sure the Whistleblower Protection Enhancement Act would get a “clean” savings provision that applied it retroactively, to whistleblowers who were victimized during the last few years.

By the end of August, Devine seemed to be avoiding the issue. After Labor Day, all bets were off in Congress because of “general nervousness,” even though there was “no real opposition” to retroactivity.

The end product didn’t contain the clean savings provision whistleblowers wanted, and now it’s an issue for the courts to resolve. The legal landscape isn’t promising, though presumably the Office of Special Counsel will give it its best shot.

One thing that Congress could do to get past its nervousness this time is understand that real people’s lives are affected. Here’s a running list. Congress should submit an amicus expressing unanimous approval of its newly-minted law applying retroactively. And GAP should organize it.

The Government Accountability Project issued a call today for whistleblowers to submit friend-of-the-court briefs to the Merit Systems Protection Board to support the retroactive application of the Whistleblower Protection Enhancement Act. MSPB is in the process of deciding whether to apply the WPEA retroactively to scores of cases it had to put on hold, given that the new law overturns several harmful precedents. The issue of retroactivity is a legal one, centering on whether Congress spoke clearly in intending that the WPEA apply retroactively. This “clear statement rule” was imposed by a 1994 Supreme Court case, Landgraf v. USI Film Products, Inc., stemming from the principle that “retroactivity is not favored in the law.”

A year ago, when the WPEA was still in committee, this author reached out to the lead lobbyist in charge of the WPEA, Tom Devine of GAP, to alert him to the fact that the WPEA may not apply retroactively. Devine sent a memo to his congressional contacts, and later in the spring the overseeing Senate committee included language in a Senate report favoring retroactivity. This was followed by a floor statement from Rep. Todd Platts (R-PA) in the same vein. There is no explicit retroactivity language in the bill itself, however. Therefore, as noted by GAP’s email today, all of this may not be enough. Depending how the MSPB, the U.S. Court of Appeals for the Federal Circuit, and possibly the Supreme Court rule, there is a strong possibility that one or more of these bodies may decide that only bill language counts. What it will come down to, essentially, is the legal philosophies of individual judges and decision-makers, and how much credence they give to individual floor statements and committee reports versus bills passed by both chambers of Congress and signed by the President.

Now GAP has issued a call for whistleblowers to submit briefs to the MSPB, by February 15, saying that “Enough whistleblowers writing to the Board about your whistleblowing disclosures (and the public stakes), will help to underscore the weight of this decision by the MSPB.” This will be a weighty decision by the Board, no doubt, but public sentiment may not be relevant or sufficient to resolve a legal question.

Unfortunately, such a call for public sentiment would have been critical when the WPEA was debated, when Congress could take into account policy preferences in a way that courts may not. The record is clear that GAP did not conduct a transparent and inclusive approach to lobbying in 2011 and 2012. It’s disheartening therefore, but not surprising, that GAP’s call for help today is a consequence of its secretive and exclusive approach to advocacy.

###

GAP Open Call for Whistleblower Amicus Briefs

OSC Notice of Intent to File Amicus Brief – Jan. 10, 2013

MSPB Amicus Order – Jan. 16, 2013

Over the last few months, this website has taken a proactive approach to exposing the conduct of the Government Accountability Project (specifically through Tom Devine, its legal director), which, ironically, has been acting in a rogue and unaccountable manner. Here are some of the allegations lodged against it, none of which have ever been contested on the merits:

• Threatening to discredit opponents of a whistleblower bill;
• Misappropriating whistleblowers’ support for a strong bill to advance a watered down alternative;
• Making a false statement that it was instrumental in defeating a poison pill provision when it actually attempted to dissuade the grassroots from doing so;
• Engaging in bad faith whisper and fear-mongering campaigns;
• Defaming and excommunicating a dissenter;
• Applying rules of conduct inconsistently;
• Exploiting a whistleblower by using information commodity to enrich itself while turning its back to his suffering;
• Pattern of evasive and secretive conduct that betrays claims to uphold values of transparency and accountability;
• Pattern of dishonest conduct (also here);
• Pattern of unprofessional, uncivil conduct (also here);
• More here.

GAP is the whistleblower advocacy organization in the United States. It exercises unparalleled influence in Congress relative to whistleblowing issues. It has taken the lead in passing whistleblower legislation for the last few decades.

It has also helped thousands of whistleblowers throughout its 30+ year history.

With that kind of clout and record, it makes sense that GAP has a loyal following of whistleblowers whose lives could have been much worse.

But will these whistleblowers go so far as to look the other way or even attempt to stifle or derail other whistleblowers when GAP’s misconduct comes to light?

Sadly, the answer is yes.

Here are a few examples, with redactions to protect identities. Note that many of these emails were also sent to GAP’s board of directors and board of advisors. Read the rest of this entry →

Two years ago today I was let go from the Federal Aviation Administration for disclosing wrongdoing and for refusing to violate the law. Since that time, I have worked to empower other whistleblowers and see that real reforms pass through Congress. I am sad to say that the biggest obstacle to progress has been Tom Devine of the Government Accountability Project. Numerous times he has advised me to wait until the Whistleblower Protection Enhancement Act passes before filing my complaint against the FAA. But it was only last winter that I tipped him off to the fact that, unless the WPEA contains specific language that allows it to extend retroactively, I and many other whistleblowers would not enjoy the new protections. He then purportedly adopted retroactivity as his top priority for WPEA.

In the last few weeks, I have asked him for regular updates about the bill, including explicitly asking about retroactivity, to no avail. He has been secretive, unprofessional, and untrustworthy. Now I know why:

The WPEA, as currently drafted, will likely not apply retroactively.*

So every whistleblower Devine told to wait has been waiting in vain. Some may have allowed their cases to go stale and be barred by the doctrine of laches.

It would be one thing if Devine and others tried in good faith to make sure the WPEA contained retroactivity. But they did not, because they adopted a secretive, cronyist, undemocratic, timid, ineffective approach to passing public laws.

Shame on you, Tom Devine. You should not be anywhere near Congress for the next whistleblower reforms.

*I say likely for two reasons: There’s a very small chance that, if the bill gets punted until after the elections, the community may decide to rise up and wrest control away from Devine and the MISC Steering Committee, as they should, and get the public involved to pass a good bill. No good laws get passed behind closed doors.

The other reason is because the Senate committee report contains language that expresses the committee’s intent that the WPEA extend retroactively. The Supreme Court, however, has ruled that Congress must speak clearly when intending to extend laws retroactively because “retroactivity is not favored in the law.” It is not certain that legislative intent suffices to meet this burden.

Beltway watchdogs the Government Accountability Project and the Project on Government Oversight are lobbying for the passage of a version of the Whistleblower Protection Enhancement Act which POGO claims is “the strongest version . . . [Senators and Representatives] think they can pass this week.” (GAP says virtually the same thing.)

In support, POGO links to an organizational letter it and GAP have drafted and circulated. POGO also links to an open letter by “prominent whistleblowers” who have “thrown their support behind this bill.” (Emphasis mine).

I can tell you that the open letter lobbies Congress to pass a strong WPEA and to specifically address five areas: retroactivity, jury trials, all circuit review, CUI/SSI loophole, and no summary judgment. The letter does not specifically support the version of the bill agreed upon these days, as described here. How do I know this? Because I wrote the letter, along with Tom Devine of GAP and Evelynn Brown of WhistleWatch.org.

That’s not to say that individual whistleblowers on it don’t support the current version, but we did not urge Congress to pass a bill that punts on jury trials and maybe also retroactivity and the CUI/SSI loophole and leaves the door open to summary judgment and revoking all-circuit review after 2 years.

Just to set the record straight, the open letter demands more than Congress is willing to pass at this time, and endorses nothing short of that.

So why is Congress not willing to pass a bill that’s as strong as we demanded?

###

Also, the CYA disclaimer that this is the “strongest version” of the bill Congress is willing to pass should have an asterisk after it, as in:

House and Senate cosponsors of the bills to strengthen protections for federal whistleblowers and taxpayers have reached an agreement and will offer the strongest version** of the Whistleblower Protection Enhancement Act (WPEA) they think they can pass this week.

**In the absence of public outcry.

Update: Ms. Brown’s response can be found here.

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” www.broken-covenant.org 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 http://www.scribd.com/doc/106111645/Joe-Carson-My-Issues-With-Tom-Devine

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.

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

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

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

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

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

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

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

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

Last Friday, the whistleblower community received the following message:

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

—

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

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

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

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

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

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

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

WORKING TOGETHER

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

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

Thank you,

MISC Steering Committee

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

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

(photo: chmop / flickr)

The groups that comprise the steering committee of the good government group coalition, the Make It Safe Campaign, are:

• –ACLU
• –Government Accountability Project
• –Project on Government Oversight
• –Union of Concerned Scientists
• –American Federation of Government Employees

Here are the details:

Evelynn Brown, a federal whistleblower and CEO of her own whistleblower support group, has been lobbying the MISC SC to become more open, transparent, responsive, and accountable. She asked for basic things like sharing the email list serv, getting rid of a 24 hour comment review period, having a whistleblower on the steering committee, having minutes of meetings made available, etc.

For whatever reason, today the committee decided they’d had enough. They said her comments had become increasingly antagonistic, uncivil, inaccurate. They won’t specify what was inaccurate about it, I asked. Her comments were civil but firm.

I think the person behind this is Tom Devine, GAP’s legal director. There is an authoritarian streak about him. I’ve already asked for his resignation and started to give detailed reasons why. He’s burning up his goodwill quickly. Censoring and exiling whistleblowers is a big no-no in our small community.

Here’s the banishment and what triggered it, below. Reprinted with permission. Read the rest of this entry →