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

The New York Times reports that the Securities and Exchange Commission (SEC) has agreed to pay $755,000 to settle a whistleblower claim by its former attorney Gary Aguirre. Aguirre had been investigating insider trading by Pequot Capital Management and its co-founder, Arthur Samberg. In 2005, Aguirre disclosed that his superiors blocked him from interviewing Samberg's friend, John Mack. Those superiors then fired Aguirre, conducted their own interview of Mack, and closed the investigation with no finding of wrongdoing. Recently, however, the SEC launched a new investigation of other trades by Pequot that Aguirre had identified as suspicious.  Samberg agreed to return $18 million in profits, pay a $10 million penalty. Samberg is now barred from investment trading, although he had already closed Pequot.  A judge of the Merit System Protection Board (MSPB) approved Aguirre's settlement last week -- five years after the SEC fired Aguirre.

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The United States Supreme Court has today reversed a decision of the Ninth Circuit Court of Appeals that had protected a public employee's expectation of privacy in pager text messages. The case is City of Ontario, California v. Quon, No. 08-1332. The bottom line for whistleblowers is that they should not conduct whistleblowing or other personal business on computers, phones or other devices provided by their employers.

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On the Daily Show last night, following President Obama’s Oval Office speech, Jon Stewart delivered a monologue addressing the president’s record on civil liberties and executive power. Stewart plays a number of clips of President Obama from the campaign trail, where he states his positions on Guantanamo Bay, warrantless wiretapping, extraordinary rendition, covert military operations, habeas corpus rights for detainees, and whistleblowers.

The whistleblower clip quotes President Obama on the campaign trail saying that he “knows something about whistle blowing, and about getting those folks the proper protection.” Stewart responds by asking, “if by protection, did he mean sun block? …Because arresting them doesn’t seem like protection.”

It is true, as a presidential candidate, President Obama championed whistleblower rights and supported enacting best practice whistleblower legislation. However, his administration has presided over the prosecution of numerous whistleblowers, including UBS whistleblower Bradley Birkenfeld and NSA whistleblower Thomas Drake. The Whistleblower Protection Enhancement Act, meant to be the centerpiece of the Obama Administration’s commitment to accountability, transparency and oversight has been watered down and filled with poison pills and roadblocks.

Watch the Daily Show clip below. When you finish watching, take action, and let President Obama and Congress know that the time to truly enhance whistleblower rights is now.  

 *Meryl Grenadier (NWC Fellow) drafted this post.

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Richard Renner, Legal Director for the National Whistleblower Center, spoke today with Local #1812 of the American Federation of Government Employees about the need for improved whistleblower protections for government employees. “The plight of federal employee whistleblowers is that they have fewer protections than employees in the private sector. The present system is broken, and we need to work together to fix it,” Renner explained.

Under current law, federal employees are denied the right to bring their claims of government misconduct in front of a jury. The Whistleblower Protection Act of 1989 forces federal employee whistleblowers to have their cases heard before an administrative agency such as the Merit System Protection Board, where federal employees’ claims are not fairly adjudicated. The National Whistleblower Center supports the HR 1507 version of the the Whistleblower Protection Enhancement Act (WPEA). In 2007, House of Representatives passed the WPEA with a large bipartisan majority. It has still not passed the Senate. H.R. 1507 would give every federal employee the right to eventually have their claims heard by a jury.

This blog post was written by intern Kevin Heade.  Photo by intern Phil Shank.

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Professional Engineer (PE) licensure + strengthened federal whistleblower protection = prevention of future offshore drilling disasters

Guest Blogger: Joe Carson, PE, Chairman OSC Watch Steering Committee, multiple  time “prevailing” whistleblower in Department of Energy

As a Professional Engineer (PE), I am a “mandated reporter” about public/workplace health and safety issues related to my professional duties - when necessary, I have a positive legal and professional obligation to “blow whistles," to appropriate authorities, regardless of employer or  possible employer retribution.  If I “look the other way,” out of fear of reprisal, my PE license can be permanently revoked.   Additionally, the Department of Energy (DOE) knew I was a PE when it hired me, in fact I cited my PE status to establish my eligibility for my job.  Because I could point to my positive legal obligation to “blow whistles” as a PE, and because concerns were valid, enough people in DOE stood by me - allowing me to “prevail,” multiple times, against others in DOE who wanted to destroy my career.

Connecting this to the ongoing disaster in the Gulf of Mexico (and many other engineering-related accidents or disasters involving federal engineers), the Mineral Management Services (MMS), just as other federal agencies, does not, as a rule, require its engineers to be PE’s.  Instead, they invoke the “federal exemption,” by which States cannot impose licensure requirements on federal employees who would otherwise be licensed.  But federal agencies can impose this requirement on themselves - and if they do not, Congress or OPM can impose it on them.  
 

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Several news sources are reporting on efforts by the U.S. Department of Defense to find Julian Assange, a founder of WikiLeaks. I reported here last week about the government's detention of Army Specialist Bradley Manning (and how Manning could have blown the whistle with legal protections). Phil Shenon writes in The Daily Beast that the government is concerned that Manning may have given WikiLeaks.org 260,000 classified State Department cables relating to the wars in Afghanistan and Iraq. Shenon quotes an unnamed U.S. official saying, "We'd like to know where he is; we'd like his cooperation in this." Assange canceled an appearance in Las Vegas for the Investigative Reporters and Editors' conference citing unspecified security concerns. Daniel Ellsberg told The Daily Beast that, "Assange is in some danger." WikiLeaks has previously reported that it relies on a panel of confidential experts to assess the authenticity and public interest in releasing documents submitted to them. I can imagine that it might take them some time to review 260,000 documents that could become the Pentagon Papers of this millennium's new wars.

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The Jamaican Senate is scheduled to debate a comprehensive whistleblower bill this Friday. Justice Minister Senator Dorothy Lightbourne released the proposed text of the Protected Disclosure Act (Whistle-blower Law) 2010, according to Jamaica Observer. The bill fulfills a 2007 election promise of the Jamaican Labour party.  It would protect both public and private sector employees, including independent contractors and non-profit organizations.  It would require employers to designate an official who would be responsible for investigating whistleblower disclosures. The bill would also make it a criminal offense to retaliate against a whistleblower, and provide a witness protection program. However, the bill would not protect disclosures that violate attorney-client or medical privileges, the Official Secrets Act, or the Corruption Prevention Act. Debate is scheduled to begin this Friday.

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Speigel Online is today releasing an interview with Daniel Ellsberg in which Ellsberg criticizes the Obama administration for increasing the use of criminal prosecutions against whistleblowers.  Ellsberg released the Pentagon Papers to reveal how numerous previous administrations had resorted to lying to the American people to conceal the real purposes of the Vietnam War. The Nixon Administration's prosecution of Ellsberg ended in dismissal after the infamous White House plumbers broke into the offices of Ellsberg's psychiatrist to steal records about Ellsberg's treatment.

In the Speigel Online interview Ellsberg says this about the prosecution of Thomas Drake:

For Obama to indict and prosecute Drake now, for acts undertaken and investigated during the Bush administration, is to do precisely what Obama said he did not mean to do -- "look backward." Of all the blatantly criminal acts committed under Bush, warrantless wiretapping by the NSA, aggression, torture, Obama now prosecutes only the revelation of massive waste by the NSA, a socially useful act which the Bush administration itself investigated but did not choose to indict or prosecute!

Bush brought no indictments against whistleblowers, though he suspended Drake's clearance. Obama, in this and other matters relating to secrecy and whistleblowing, is doing worse than Bush.

Science journalist Ed Brayton cheers on Ellsberg in this blog.

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The U.S. government has arrested another whistleblower. Wired.com reports that the government is holding Specialist Bradley Manning in detention in Kuwait pending charges that he supplied a classified video to WikiLeaks.org.  I reported here in April that this video depicts US armed forces killing about a dozen civilians in Iraq, including two Reuters journalists. Manning had reached out to convicted computer hacker Adrian Lamo who has now acknowledged that he told authorities about Manning's role in leaking the video to WikiLeaks. The government had previously identified WikiLeaks as a security threat (see my prior blog entry about this government memo), and threatened to prosecute anyone leaking classified information. Together with the Thomas Drake prosecution, we see that the present administration is picking up the pace in using criminal charges against whistleblowers. The administration also continues to hold UBS whistleblower Bradley Birkenfeld while his pardon petition awaits actions.

It is early in the case, and we cannot expect that all the facts are out yet. Still, I am already concerned about whether the government's prosecution is selective, or retaliatory for the critical content of the Wikileaks video. I would ask that the government make a measured response that is proportionate to the violation of classification rules and not affected by the government's embarrassment over the publicity about its violence in Iraq.

Also, it appears that Specialist Manning was not aware of some of the basics in how to protect yourself as a whistleblower.  Instead of going to a convicted criminal who has had time in jail to appreciate the government's interest and power, whistleblowers should go to a personal lawyer.  The communications with the lawyer for the purpose of getting legal advice and counsel are privileged. The sooner a whistleblower gets a good lawyer, the better off the whistleblower can be in the end.  A lawyer could have advised Manning about his right to make disclosures to members of Congress under the Military Whistleblower Protection Act, 10 U.S.C. § 1034. With thoughtful selection of the right material for the right member of Congress, Manning might have accomplished his disclosures in a way that would have protected him from this arrest. Perhaps others will learn from this experience.

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