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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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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 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

Call to Action: Seeking FDLers’ Help to Counter Veal Pen Entities and Pass Real Whistleblower Legislation

7:19 pm in Uncategorized by MSPB Watch

I’ve been posting on FDL for some time now, exposing so-called government accountability groups (GAP, POGO, and others) who exploit whistleblowers and stymie true reform to preserve their need for existence/spot in the pecking order/good copy for fundraising purposes. The Senate just passed a whistleblower bill, now sitting on the president’s desk, that restores protections whistleblowers gained with the Whistleblower Protection Act of 1989. The bill could have provided jury trials, the holy grail of whistleblower reforms, but it was taken out in back room negotiations when the advocacy groups negotiated it away, all the while disenfranchising and deceiving the grassroots and maintaining secrecy and control over the deliberations. Textbook veal pen stuff.

On a separate website,, I cover two government agencies that oversee federal whistleblowing issues: the Office of Special Counsel and the Merit Systems Protection Board. OSC is like a prosecutor that works on behalf of whistleblowers. and the MSPB is an administrative tribunal that hears complaints against agencies. Both were created by the Civil Service Reform Act of 1978, which fulfilled one of Jimmy Carter’s campaign promises. Both agencies have been a disaster for whistleblowers for a long time. OSC is changing for the better. MSPB has not. Both are due for reauthorization in Congress, and the GAO is supposed to study in 2 years whether Congress should add jury trials.

This is where I need your help. Given the way the advocacy groups sold whistleblowers out in the last round, a fresh, new, uncompromised voice is needed to ensure that the reauthorization promotes the public interest and not these orgs’ self interest, and that jury trials and other due process reforms pass through Congress.

The subject matter is technical, no doubt, but I can help with that. What I lack is an army of committed activists that can help pass good legislation in a transparent, accountable manner. Whistleblowers need a trustworthy, reliable voice at the table that is committed to their, and by extension the public’s, interests.

The problem is bigger than the national security whistleblowers, who get prosecuted by the administration. Kevin Gosztola does a wonderful job covering those issues. The whistleblowers I’m fighting for work at civilian agencies that can prevent the next Deepwell Horizon, subprime mortgage crisis, Shuttle Challenger explosion, and other avoidable disasters.

This is important stuff, but it’s held hostage by the whims of a few organizations that act like a cartel. I need your help to break through that cartel.

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.

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.

Decided to give FDL membership a try

6:27 pm in Uncategorized by MSPB Watch

Figured it was about time. I came to the conclusion, after a year of trial-and-error, that working within the system of the federal whistleblowing community is largely a waste of time. It’s a dysfunctional, fractured, cowed veal pen of “useful idiots” who support their exploiters and oppressors through silence, if not active suppression of dissent. Change will have to come from the outside, by educating new folks (such as yourselves) without corrupt ties and who have not been (directly) traumatized and brow-beaten by the government and then the corrupt NGOs.

For background on this, just review my diary (and this post in particular: It’s time to blow the whistle on the federal whistleblowing community).

Looking forward to seeing what this membership entails.

And seeing that I’m under the word count required for new posts, I leave you with this:

When in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

POGO embarrasses watchdogs everywhere with sycophantic Obama email

6:36 am in Uncategorized by MSPB Watch


(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.

Veal Pen Watchdogs Misappropriate Whistleblowers’ Support for Strong Bill to Advance Watered-Down Alternative

2:32 pm in Uncategorized by MSPB Watch

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

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.

Veal Pen Watch: Good government groups all but eject whistleblower from coalition for asking too many questions

6:29 pm in Uncategorized by MSPB Watch

(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 →

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

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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