Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

I previously wrote here about the extraordinary findings of U.S. District Court Chief Judge Royce Lamberth in Horn v. Huddle.  See my posts of August 28 and November 12, 2009. Judge Lamberth found that officials of the Central Intelligence Agency (CIA), including Director George Tenet and an agency attorney, made material and intentional misrepresentations to the Court.

Yesterday, Judge Lamberth approved a $3 million settlement, and vacated his prior orders finding the misconduct by the CIA officials and the attorney. However, Judge Lamberth did so with some misgivings, particularly that, "it does not appear that any government officials have been held accountable for this loss to the taxpayer. This is troubling to the Court." In vacating the Court's earlier findings, Judge Lamberth noted on page 4 that his prior findings all already in the public record, and even published, for all to read. Horn v. Huddle, 647 F.Supp.2d 55 (D.D.C. 2009); Horn v. Huddle, 636 F.Supp.2d 10 (D.D.C. 2009). Judge Lamberth expressed appreciation for Attorney General Eric Holder's September 23, 2009, memorandum called, "Policies and Procedures Governing Invocation of the State Secrets Privilege." He attached a copy to his opinion. He noticed that the memorandum provides for notification of inspectors general and of Congress when the state secrets privilege is invoked to conceal information about wrongdoing by government officials. Judge Lamberth states that sealed information in the case does reveal such wrongdoing, in this case by the inspectors general of both the State Department and the CIA. Judge Lamberth asked for a report from the Attorney General about whether the notification described in the policy memorandum would be made to Congress on that information. The judge held in abeyance the motion to vacate two of his ordered until he hears from the Attorney General. Judge Lamberth also issued a separate order.

On Tuesday, a District Court judge in Washington criticized the federal government for invoking the state secrets privilege in a case in which a DEA agent claimed to have been illegally wiretapped by the CIA. The “state secrets” defense restricts the court from ruling on cases in which government secrets could be released.  

Fred Whitehurst is the whistleblower who revealed that the crime lab at the Federal Bureau of Investigation (FBI) failed to live up to its reputation for scientific integrity, and sometimes even resorted to falsifying results. Today Jeff Stein of the Washington Post's Spy Talk blog calls Whitehurst a "hero" and chats with him about his legacy.

Earlier this month, the Post's Keith Alexander wrote about a report of the U.S. Attorney in the District of Columbia finding over 100 cases that were tainted by FBI crime lab results that must be reviewed. That report is in response to the exoneration of Donald Gates who spent 28 years in prison for a rape and murder he did not commit.

Stein elicited from Whitehurst how he continues to review FBI records released under the Freedom of Information Act (FOIA) to find people who might still be suffering from unreliable crime lab results. Stein does not cover Whitehurst's recent activism to get the U.S. Senate to improve the federal Whistleblower Protection Act. Whitehurst has called on Senators to fix the poison pills in the Senate's current version of S. 372, the supposed Whistleblower Proection Enhancement Act (WPEA). One of those "enhancements" is to repeal the special law that protects whistleblowers at the FBI. Whitehurst has written an open letter to Senators calling on them to fix all the poison pills before they pass S. 372. Follow this link to join him in that call.

The administration of Australia's Prime Minister, Kevin Rudd, announced plans this week for a new whistleblower law to protect Commonwealth employees. In 2008, the Rudd administration asked Australia's House of Representatives Standing Committee on Legal and Constitutional Affairs (the Committee) to report on its recommendations for a model whistleblower protection bill. A year ago the Committee issued its report.  Now the Rudd administration has responded. “Australia’s federal laws currently offer very few protections for public interest disclosures. The Rudd Government’s response moves to change that.” Out of 26 recommendations, the administration is accepting 10, accepting 11 more in part, and rejecting only four. The administration has announced that it hopes to have the final legislation enacted this year. Overall, the recommendations call on employees to raise concerns through proper channels, but recognizes exceptions in which going to other authorities or the media will be protected. If a government worker experiences retaliation, the law will call on the employing agency to correct it.  If necessary, the employee can go to the Federal Ombudsman for relief. The Ombudsman could call on the Federal Police for an investigation, and then order the agency to provide reinstatement and other make whole remedies.

Our colleague, Peter Bennett of Whistleblowers Australia, reports that the proposals provide some significant improvements (such as protection for going public in some circumstances), but still leave some areas unprotected (such as universities).

The independent journalism website, truthout.org, is reporting that the Senate is set to "hotline" the Whistleblower Protection Enhancement Act (WPEA), S. 372.  Hotlining is a procedure in which the Senate leaders agree that a bill is uncontroversial and they put the measure on the Senate floor to call for passage by unanimous consent.  If no Senator objects, then the measure passes the Senate.

That means it will only take one Senator to block unanimous consent and save current whistleblower rights from the poison pills contained in the Senate's current version of S. 372. These "poison pills" include repealing the current whistleblower protections for FBI employees, allowing the heads of intelligence agencies to fire whistleblowers with no due process at all, allowing intelligence agencies to conduct the fact findings in cases they do allow, and allowing for dismissal of whistleblower cases without a hearing. Follow this link for more information on S. 372. Follow this link to TAKE ACTION to call on your Senator to oppose S. 372 with the poison pills.

The full text of the truthout.org story follows in the continuation of this blog entry.

Jane Turner had worked as a Special Agent for the FBI for twenty years.  She led efforts to force the FBI to provide protection for child sex crime victims on the North Dakota Indian Reservations. She also reported theft of evidence from the scene of the 9/11 terrorist attacks.  In retaliation for exposing FBI failures within its child crime program, Turner was removed from her position. She prevailed in a jury trial that redressed her bad performance reviews. Her whistleblower case is still pending with the U.S. Department of Justice. 

Today Jane Turner spoke with James Corbett of CorbettReport.com.Turner  spoke about the problems with the current Senate version of the Whistleblower Protection Enhancement Act (WPEA), S. 372. CorbettReport.com provides Open Source Intelligence News. Turner explains how Title VII of the Civil Rights Act allowed her to have a jury trial to challenge her retaliatory performance review. However, a special law for FBI employees provides for a special proceeding at the U.S. Department of Justice for her whistleblower claims. Turner explains how S. 372 would take away the right of FBI agents to make whistleblower complaints like hers. Turner calls on everyone to TAKE ACTION on S. 372 to counter the power of the FBI to block whistleblower rights. The 25-minute interview is available from CorbettReport.com in MP3 format.

The Australian Law Reform Commission recommended that national security whistleblowers should face criminal sanctions only when their disclosures, "damage national security, interfere with an investigation and endanger someone's life or safety." The Commission also recommended that a new law create an offense of unauthorized disclosure only in these circumstances.

Today Australia's Attorney-General, Robert McClelland, tabled the recommendation in Parliament so that the government could review it.  The recommendation follows a 2005 disclosure by retired customs officer Allan Kessing about security breaches at Sydney Airport. Kessing was charged with disclosing information without due authorization. He made his disclosure to an opposition member of Parliament and it was published in a periodical two years later. The Herald Sun reports on the action in today's edition.

What does Louis Brandeis' famous quote, "sunlight is the best of disinfectants," have to do with efforts to reform federal employee whistleblower protections? Well, if you have been following the legislative progress of S. 372, the so-called Whistleblower Protection Enhancement Act, through the Senate you would understand how perceptive Brandeis was about the positive effect of publicity.

In the back rooms of Senate offices, senate staffers have been working in secret to load up the Senate's whistleblower bill with numerous poison pills that do more to protect federal agencies and managers than to enhance federal employee whistleblower rights.

Press coverage yesterday by Politico and today by In These Times and last summer by the Washington Times sheds some light on the inner workings of the Senate and the influence of federal agencies, the FBI and the intelligence community to water down important whistleblower reforms.

The back room influence of federal managers and agencies has produced a Senate bill that is much weaker than the stronger House bill (H.R. 1507), co-sponsored by Rep. Chris Van Hollen (D-MD) and Rep. Todd Platts (R-PA), that has strong bi-partisan support in the House and which was endorsed by President Obama during the campaign.

FBI whistleblower Fred Whitehurst and an attorney for federal managers, Bill Bransford, spoke with Federal News Radio yesterday. They presented different sides of the argument about the Senate version of the Whistleblower Protection Enhancement Act (WPEA), S. 372. Whitehurst decried the bill saying it, "returns control of the process back to the very organization that is being exposed, and that's bizarre." Bransford supported the bill saying, "It was a very difficult problem that really was not capable of being fixed legislatively, but we tried. So you had this imperfect law, and, the result of it is, you get some really bad cases that come up before the federal circuit court of appeals . . .." Bransford said that he and the management-side Senior Executive Association (SEA) support S. 372.  I find this curious since Bransford testified last summer to a Senate Committee saying that he opposed letting federal employee whistleblowers bring cases to a jury.  Now he supports S. 372.  I conclude that S. 372 does not provide any meaningful hope that whistleblowers could actually get to a jury.  That is why the managers like it and the National Whistleblowers Center (NWC) does not. Federal News Radio is providing MP3 files of its interviews. The NWC is providing an Action Alert page for those who want to express a call for effective protection, not S. 372.

Stephen M. Kohn, Executive Director of the National Whistleblowers Center (NWC), spoke today with James Corbett of CorbettReport.com. Kohn spoke about the problems with the current Senate version of the Whistleblower Protection Enhancement Act (WPEA), S. 372. CorbettReport.com provide Open Source Intelligence News.  Kohn details ways in which the Senate version of WPEA would actually make it harder for whistleblowers to win protection from and remedies for retaliation. Kohn also explains how it will only take one Senator to block S. 372 from passing with unanimous consent in its present form. The interview is available from CorbettReport.com in MP3 format.

For more information about the problems with S. 372, visit this NWC page.

TAKE ACTION now by asking your Senator to block S. 274 from passing until the poison pills are fixed.