You are browsing the archive for White House.

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?

Why Did Congress Add an Intelligence Community Loophole to the Contractor Whistleblower Protections in NDAA Bill?

3:00 pm in Uncategorized by MSPB Watch

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.

The Newly-Passed Federal Contractor Whistleblower Protection Law Would Not Have Helped Edward Snowden

7:44 pm in Uncategorized by MSPB Watch

Last December, Congress passed (and the President signed), the National Defense Authorization Act of 2013. Contained in that bill was section 828, now codified at 41 U.S.C. 4712, which, beginning July 1, 2013, will protect disclosures made by government contractors to any member of Congress, an Inspector General, the GAO, a contract oversight employee in an agency, authorized DOJ or law enforcement agencies, a court or grand jury, or a management official at the employing contractor with authority to investigate wrongdoing.

However, and this is a big however, there is an exception for “any element of the intelligence community, as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a (4))” or to

any disclosure made by an employee of a contractor, subcontractor, or grantee of an element of the intelligence community if such disclosure—

(A) relates to an activity of an element of the intelligence community; or
(B) was discovered during contract, subcontract, or grantee services provided to an element of the intelligence community.

Congress inserted the exception last December, as described here.

Was there a pre-existing avenue to disclose wrongdoing to an Inspector General or Congress? Perhaps, as the NDAA builds upon 10 U.S.C. 2409, which covers contractors on a “Department of Defense contract.” Someone more versed in these issues would be able to clarify if NSA contractors are covered by this provision.

I suspect we will learn much about Mr. Snowden’s disclosures and whether they check off this legal box or that in the days and weeks to come. However, I don’t think that’s what’s really at issue here. At it’s heart, Mr. Snowden’s courageous act of civil disobedience challenges this country’s decline into despotism. It’s all the more striking that he did it with likely no legal protections at all, as if nothing had changed between now and the days of the Pentagon Papers disclosures, over 40 years ago.

The Case Against Elaine Kaplan

9:59 am in Uncategorized by MSPB Watch

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 

White House issues policy directive [promises?] national security employees whistleblower protections

5:36 am in Uncategorized by MSPB Watch

gate

(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:

“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:

How Obama broke his campaign promise to whistleblowers

7:14 pm in Uncategorized by MSPB Watch

Here’s a brief rundown: in 2007-08, Obama ran on a platform of open government, transparency, and protecting whistleblowers. He even relied on his experience as a whistleblowers’ attorney to prove his bona fides. He won.

Two activists in Guy Fawkes masks hold a sign of Bradley Manning.

Anonymous activists in support of Bradley Manning (Photo: Bradley Manning Support Network / Flickr).

Around February 2009, Senate Majority Leader Harry Reid had the opportunity to provide long-sought protections to whistleblowers through the stimulus bill. He blew it. Meanwhile, the Justice Department was in the process of prosecuting (or preparing the prosecution of) the highest number of whistleblowers in history. At the same time, the whistleblower community (and then some) got together to prod the Democratic-controlled Congress to complete a decade-long attempt to update the Whistleblower Protection Act. This was in May 2009.

Then the Senate released their bill, which was watered down and divided the community. The White House was backing away from Obama’s campaign pledge. The National Whistleblowers Center stood their ground, arguing that jury trials are crucial. The Government Accountability Project and a few others, including the Project on Government Oversight, wavered. (They also had access to the White House and plenty of attention (and cash) from corporate-funded foundations with ties to the administration.) A split in the community occurred, and the bill died. Another bill cropped up, but it’s virtually identical to the one that came before.

So here we are: divided, demoralized, and adrift. GAP, POGO, et al are still peddling a weak, if not harmful bill while trying to silence dissent.

Obama is still prosecuting whistleblowers.

Retaliation goes on. Corruption goes on.

There’s a name for the kind of co-option that took place in the past three plus years: veal pen politics.

Dissenters’ Digest for May 20-June 9

4:00 pm in Uncategorized by MSPB Watch

(photo: caribbeanfreephoto/flickr)

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

Beyond Reproach: Efforts to pass the Whistleblower Protection Enhancement Act came under scrutiny this week after it was disclosed by the lead lobbyists that the bill will not contain any jury trial provisions, a long-sought reform. The admission came after the Make It Safe Campaign Steering Committee objected to an open letter to Congress which highlighted flaws in the current bill. However, grassroots efforts, led by this author, pointed out that the Steering Committee has failed to engage the whistleblower community and the public in its lobbying activities, as well as practice transparency and accountability, the values it publicly champions. It remains to be seen whether the Steering Committee will take heed of suggested reforms, the rejection of which may well cost it considerable influence and credibility with the lowest common denominator that truly matters: federal whistleblowers.

Below the Fold: Read the rest of this entry →

The White House may be in for a surprise regarding the Special Counsel’s independence

11:41 am in Uncategorized by MSPB Watch

The White House.

(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 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 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 for April 8-14

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 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.