Dear Whistleblower and Advocate,

As you may know, President Obama nominated former Special Counsel Elaine Kaplan on March 19 for a judgeship on the U.S. Court of Federal Claims. This court, based in Washington, has jurisdiction over government contracts, vaccination fund claims, and other discrete areas. It does not review whistleblower/MSPB claims. The nomination is for 15 years, however it is not uncommon for Federal Claims judges to move on to higher profile positions. For instance, former Special Counsel Alex Kozinski left OSC in 1982 for the Court of Federal Claims, only to become a federal appeals judge on the Ninth Circuit. He is now Chief Judge of that circuit. Same with Randall Rader, the Chief Judge of the Federal Circuit (though he was never Special Counsel).

I don’t know how we all feel about Elaine Kaplan, but the public record, as well as personal anecdotes I’ve heard, are not good. My letter explains why.

I believe, as I explain in the letter, that a person who has made the decisions that Ms. Kaplan made should not be awarded with a judicial post. The Court of Federal Claims is not a high profile position, but it is a stepping stone to more influential positions. I plan to make my opposition heard at this level, and I ask you to join me if you agree.

If you have experiences of your own and can provide documentation to support it, please let me know. The letter is not set in stone. Also, feel free to send this to whomever you wish. I will be collecting signatures for the rest of the week or so.

There will also be an accompanying website that will collect all letters sent: http://thecaseagainstelainekaplan.wordpress.com/

Sincerely,
David Pardo
dpardo at mspbwatch dot net 

(photo: Scott Ableman / flickr)

Update: apparently this directive doesn’t “grant” protections so much as promises them, or something. See the comments below.

Here is a copy of the directive [PDF], obtained from federalnewsradio.com. Here is some background about what it entails:

• GAP Praises President’s Action to Protect National Security Whistleblowers (Government Accountability Project)
• Intelligence community employees to gain whistleblower protections (FederalNewsRadio.com)
• President Obama Issues Landmark Directive for National Security and Intelligence Community Whistleblowers (Project On Government Oversight)

“Protected disclosure” is defined in this document as follows (emphasis added):

(5) The term “Protected Disclosure” means:

(a) a disclosure of information by the employee to a supervisor in the employee’s direct chain of command up to and including the head of the employing agency, to the Inspector General of the employing agency or Intelligence Community Element, to the Director of National Intelligence, to the Inspector General of the Intelligence Community, or to an employee designated by any of the above officials for the purpose of receiving such disclosures, that the employee reasonably believes evidences (i) a violation of any law, rule, or regulation; or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;

(b) any communication described by and that complies with subsection (a)(1), (d), or (h) of section 8H of the Inspector General Act of 1978 (5 U.S.C. App.); subsection (d)(5)(A) of section 17 of the Central Intelligence Agency Act of 1949 (50 U.S.C. 403q); or subsection (k)(5)(A), (D), or (G), of section l03H of the National Security Act of 1947 (50 U.S.C. 403-3h);

(c) the exercise of any appeal, complaint, or grievance with regard to the violation of Section A or B of this directive;

(d) lawfully participating in an investigation or proceeding regarding a violation of Section A or B of this directive; or

(e) cooperating with or disclosing information to an Inspector General, in accordance with applicable provisions of law in connection with an audit, inspection, or investigation conducted by the Inspector General,

if the actions described under subparagraphs (c) through (e) do not result in the employee disclosing classified information or other information contrary to law.

This raises an interesting question: why doesn’t this definition include the Office of Special Counsel as an authorized recipient of (presumably classified) information?

After all, OSC is authorized by law to receive classified disclosures. So where does it fit in with this new scheme? In fact, OSC appears only once, in a discussion regarding assessing the efficacy of provisions deterring retaliation, on page 5. Why not educate employees about the OSC option? The document calls on national security officials to provide guidance for individual officers or employees regarding what disclosures are protected (also on page 5).

For more on this issue, see the following:

• Where may national security whistleblowers safely disclose evidence of wrongdoing?
• OSC may be unlawfully turning away whistleblowers from the intelligence community
• OSC’s classified disclosure channel – an update

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.

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.

(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 →

(Photo: Chris Christner / Flickr)

Politico is reporting that the White House is rejecting calls for the Office of Special Counsel to investigate alleged national security leaks:

“No,” press secretary Jay Carney said when asked whether the president would agree to have the Office of Special Counsel investigate alleged leaks of classified information regarding U.S. intelligence operations. “The president,” Carney said, “insists that his administration take all appropriate and necessary steps to prevent leaks.”

However, the Office of Special Counsel is an independent agency and its leader, Special Counsel Carolyn Lerner, cannot be removed except by “the President only for inefficiency, neglect of duty, or malfeasance in office.”

In addition, OSC has the following duty:

(a) The Office of Special Counsel shall—

(3) receive, review, and, where appropriate, forward to the Attorney General or an agency head under section 1213, disclosures of violations of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;

So, you see, if the Special Counsel receives allegations from employees or former employees who have direct information regarding the leaks, the law mandates that the Special Counsel receive and process such disclosures, without interference from the White House.

Here, I’m afraid Jay Carney may be speaking out of turn as it is not for the President to agree or disagree should the OSC receive allegations.

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

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.

Send tips to info at mspbwatch dot net.

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

Foreign Press Covers Obama’s War on Whistleblowers: A Guardian (UK) article covers recent prosecutions of whistleblowers by the Obama Administration and discusses the general state of free speech and dissent during Obama’s reign. Separately, Russia Today interviews two whistleblowers’ lawyers from competing organizations and discusses the case of John Kirikaou, the CIA whistleblower and torture critic who was recently indicted for allegedly sharing secret information with reporters. NPR and Salon have coverage of that prosecution.

FBI Blocks Publication of Whistleblower’s Book Critical of Agency: A lawyer for FBI whistleblower Sibel Edmonds claims the FBI is blocking publication of his client’s book in violation of agency regulations, according to a press release by the National Whistleblowers Center. Edmonds, who worked as a contract linguist at the FBI, was fired six months after 9/11 following complaints to management about possible compromises to national security and shoddy wiretap translations, according to the Associated Press. Edmonds’ suit was blocked by Attorney General John Ashcroft, who invoked the controversial state secrets privilege. Edmonds has additional coverage on her independent media site, Boiling Frogs Post. She is also featured in this podcast interview by Peter B. Collins.

99% Spring: Real Grassroots Activism or Partisan Co-opting? The “99% Spring” activism training effort by MoveOn.org is seen as an attempt to co-opt the Occupy movement for Democrats’ electoral gain, according to an anonymous party activist. Mother Jones, which is seen with the same suspicion as MoveOn in the link above, offers one account of MoveOn’s training, but a different on-the-ground account is unmoved.

Updates in State Dep’t Whistleblower Peter Van Buren’s case: State Department critic and whistleblower Peter Van Buren is profiled by his lawyer, Jesselyn Radack of the Government Accountability Project, who is covering for Glenn Greenwald on Salon.com. Van Buren separately discusses a recent interrogation by Diplomatic Security. The State Department is moving to fire Van Buren for critical blogging of his employer.

Below the Fold:

–JOBS Act encourages fraud in the financial markets, according to Rolling Stone columnist Matt Taibbi.

–The reputation of the late community organizer Cesar Chavez comes under scrutiny for questionable professional conduct.

–A fired SEC lawyer will have a chance to get his job back following a decision by the Court of Appeals for the Federal Circuit.

–A power struggle at a watchdog agency could undermine nuclear plant safety.

–The White House rejects requests to sign executive order prohibiting LGBT discrimination by federal contractors.

–A California state report blasts UC-Davis over pepper spray incident.

Send tips to info at mspbwatch dot net.

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

Justice Department Indicts Former CIA Officer, Whistleblower, and Torture Opponent: NPR reports that John Kiriakou, a former CIA officer and outspoken torture opponent, has been charged with violating the Espionage Act by sharing secret information with reporters. The Government Accountability Project notes that Kiriakou is the first and only person to be indicted by the U.S. government who is associated with the Bush Administration’s torture program. GAP further notes that Kiriakou is the sixth whistleblower to be prosecuted by the Obama Administration. Emptywheel has additional coverage.

Watchdog Uncovers State Department Memo Casting Doubt on Legality of Bush Administration’s Interrogation Techniques: As reported by Firedoglake, a 2006 State Department memo casting doubt on Justice Department arguments approving the CIA’s “enhanced interrogation techniques” has been uncovered. The author of that memo, Philip Zelikow, was a counselor to Secretary of State Condoleezza Rice. It is believed that the Bush Administration attempted to destroy all copies of that memo, but the non-profit National Security Archive obtained one from the State Department through a Freedom of Information request. Emptywheel has additional coverage. Zelikow’s memo can be found here.

New York Times Report Portrays FDA as Victim of White House Politicization: The New York Times reports that FDA officials were instructed to reverse decisions such as publicizing the caloric content of movie-theater popcorn. The overall tenor of the piece portrays White House officials as shrewd and pragmatic, with FDA officials seen as public-minded, if not “naive.” However, there may be some image management going on following recent and troubling reports of retaliation and spying on whistleblowers, who came forward to allege corruption within FDA and the improper approval of unsafe medical devices. The Office of Special Counsel has opened an investigation into these allegations. GAP and the National Whistleblowers Center have coverage of the FDA.

Below the Fold:

–President Obama signs the STOCK Act, requiring financial disclosure by members of Congress and federal executives.

–Lavish Las Vegas conference costs top GSA officials their jobs. Congress is said to investigate.

–The Obama Administration quietly appoints a new FAA chief counsel with extensive ties to the White House.

–EEOC is urged to tackle conflicts of interest in discrimination complaint process.

–The U.S. government aims to protect secrecy in Bradley Manning’s court martial.

–The Office of Special Counsel is currently experiencing an 8-9 month delay in processing FOIA requests, according to recent communications with its FOIA officer.

Send tips to info at mspbwatch dot net.

As measured by the numbers of retaliation complaints, whistleblower disclosures, allegations for hatch act violations, and other complaints for prohibited personnel practices, since 1978.

An excerpt from the New York Times:

Another chapter is out in the continuing and very public story of conflict within the Nuclear Regulatory Commission, which has now taken the form of a battle of snail mail.

A letter addressed to the White House chief of staff and signed by four of the five commission members was circulated Friday criticizing the fifth member, Gregory B. Jaczko, its chairman, and expressing “grave concerns” that his deficiencies as a leader could compromise nuclear safety. It was dated Oct. 13. A similar letter was sent directly to Dr. Jaczko.

And this week, a rebuttal letter from Dr. Jaczko, also addressed to William M. Daley, President Obama’s chief of staff, said the other four members were improperly trying to involve themselves in management affairs, which in a reorganization of the commission in 1980 became the chairman’s sole responsibility. Dated Dec. 7, the letter said that the rest of the commission had “taken an approach that is not as protective of public health and safety as I believe is necessary.”

For relevant context on how such breakdowns in the civil service occur, see this letter from Joe Carson, Nuclear Safety Engineer at the Department of Energy:

December 10, 2011

Chairman Jaczko
Commissioner Svinicki
Commissioner Apostolakis
Commissioner Magwood
Commissioner Ostendorff

Nuclear Regulatory Commission

Washington, DC 20555

Subject: The “broken covenant” of Civil Service Reform Act of 1978; significant and persistent deficiencies in scope and implementation of engineering ethics; and your mission and your disputes about your various authority in executing it

Dear NRC Commissioners,

I am writing because of a NY Times story, “New Discord at NRC,” today about your dispute, which links to your respective letters to the White House.1 I have already established that you cannot demonstrate objective compliance with your fundamental duty to NRC employees – to ensure they are adequately protected from reprisal, discrimination, personal favoritism, or other types of “prohibited personnel practices (PPPs),” so they can perform their duties in a trustworthy fashion, per the merit system principles. How else can you possibly claim to be complying with your duty to “prevent PPPs” at 5 U.S.C. section 2302(c), if you cannot do this?

But I do not blame you, because you cannot do this by yourself. Congress, per the Civil Service Reform Act of 1978, assigned the duty to “protect (NRC) employees from PPPs” to the Office of Special Counsel (OSC), per (what is now) 5 U.S.C. section 1214, and assigned the Merit Systems Protection Board (MSPB) the duty to conduct oversight of OSC and NRC in interpreting and applying their respective duties to determine whether NRC employees are adequately protected from PPPs, per 5 U.S.C. section 1204(a)(3). But OSC interpreted away, at its creation, its essential duty to “protect” by claiming it never has to tell anyone when it determines a PPP has occurred, and MSPB enabled OSC by claiming it never has to conduct oversight of OSC or NRC to determine whether NRC employees are adequately protected from PPPs. This is detailed, in boring, nuclear safety grade, detail at www.broken-covenant.org and http://mspbwatch.wordpress.com/.

So, maybe Chairman Jaczko took a page from OSC’s and MSPB’s playbooks in claiming he does not have to tell other NRC Commissioners what they believe they need to know to comply with their statutory duties for nuclear and public health and safety.

The NRC Inspector General report about Chairman Jaczko’s actions about terminating the NRC’s review of DOE’s license application for Yucca Mountain determined he did not break any laws.2 But it was silent to the most relevant question – did he abuse his authority? “Abuse of authority” is a legal phrase with defined meaning in federal civil service law – it is not just a subjective “eye of beholder” combination of sounds.3 Perhaps the NRC IG feared retribution to make such a finding, so he was silent to it.

As I understand rule of law in USA, the Office of Legal Counsel (OLC) of the Department of Justice should be the final referee in Executive Branch about your respective authorities. I also understand you have the authority to task OLC to issue its opinion on your concerns.4

I played a significant role in the American Nuclear Society (ANS) issuing a new code of ethics about 7 years ago.5 I regret it, it is nothing but worthless eyewash in practice – ANS has yet to ever investigate a member for violating it or taking any action to uphold it when an ANS member claims to have been so foolhardy to put it ahead of their economic self-interest and to be suffering employer retribution for it, even when legally established.

The NRC Inspector General found former NRC Commissioner Merrifield violated some conflict of interest requirements of the federal civil service. This was publicized in the Washington Post.6 In doing so, he also violated aspects of the ANS Code of Ethics. I brought this to the appropriate attention of ANS leadership, the 10 or so former NRC Commissioners who belong to ANS, and others. Everyone stuck their head in the sand and pointed me to someone else, demonstrating the “broken honor code” implementation basis of engineering ethics.7

Commissioner Ostendorff – you knew me in Navy Nuclear Power School. When Admiral Rickover interviewed me, he asked me why I wanted to be in his program and I told him I wanted to be a better engineer. Be careful what you ask for, I suppose, because my being a “better engineer” includes the unpopular assignment to call out my profession about the significant and persistent deficiencies in its code of ethics – which forms an essential part of the engineering, as any other, profession.

Commissioner Magwood – you have known me a bit via our common membership in ANS and common employment in DOE.

Chairman Jaczko – we met about my concerns as a Department of Energy whistleblower when you were on Senator Reid’s staff.

Everyone in nuclear profession would be better served by clarity about your respective roles – as applied in specific instances – not just in theory. Everyone in federal civil service would be better served by clarity about the respective responsibilities of agency heads, the Special Counsel of the Office of Special Counsel, and Members of the Merit Systems Protection Board for ensuring members of federal civil service are adequately protected from PPPs. Everyone on planet earth in 2011 would be better served if the members and leaders of engineering profession would find the moral courage to acknowledge and address the significant and persistent deficiencies in the scope and implementation of engineering ethics.

You have sworn duties for a reason – and not just to burnish your resumes for your next career move – and I am bringing serious, well evidenced, far-reaching concerns to your attention and they are certainly relevant to nuclear safety. Please act in accordance with the merit system principles, your oaths of allegiance, and standing as nuclear professionals, in considering them, because you do have the influence and/or authority to substantiate or dispel them.

Respectfully,

Joe Carson, PE

Copy: Relevant Stakeholders in Government, media, and elsewhere

1. www.nytimes.com/2011/12/10/us/new-discord-at-nuclear-regulatory-commission.html?scp=1&sq=nrc&st=cse

2. See http://republicans.energycommerce.house.gov/Media/file/Hearings/Environment/061411/IGREPORT.PDF

3. See 5 U.S.C. sections 1213(a)(1)(B), 2301(b)(9), and 2302(b)(8)

4. See 28 U.S.C. sections 510-512, 28 C.F.R. section 0.25, and www.justice.gov/olc

5. See www.new.ans.org/about/coe/

6. See www.pogo.org and perform a search on “merrifield” to locate the NRC IG report

7. See http://srhrl.aaas.org/newsletter/per/archives/per43.pdf for a short article on the broken state of engineering ethics