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

Harper's Magazine is publishing a report by Scott Horton on yet another prosecution for releasing information. Called "Obama's War on Whistleblowers," the article focuses on the prosecution of Steven Kim, a scholar of North Korea’s nuclear program. Since Kim did consulting work for the State Department, the prosecution contends he should not have spoken to Fox News about how the North Koreans were likely to react to proposed sanctions. Former prosecutor and Johns Hopkins professor Ruth Wedgwood told Horton that the Fox News report “contains completely unremarkable observations about what a country would do if it was sanctioned for its poor behavior. These kinds of observations were well known to anyone paying attention to public sources and ought not be the basis for making someone a federal felon.” Assistant Attorney General David Kris says the charges are a “warning to anyone who is entrusted with sensitive national security information and would consider compromising it.” Those who are following the prosecutions of Thomas Drake and Bradley Manning, and the failure to grant clemency to Brad Birkenfeld, may see a pattern. Horton notes that Obama, as a lawyer, represented a whistleblower.  As a candidate, Obama pledged to “strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government.” Horton complains that the prosecution of Kim will effectively "censor public debate about vital facts relating to international affairs and possibly to war. *** [W]e’re supposed to be kept ignorant while the national-security state cares for us all."

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The new president of the Philippines, Benigno Aquino III (pictured), has granted security guarantees to a group of whistleblowers under the Witness Protection Program. Now those whistleblowers are disclosing more information about corruption under the prior administration. GMA News TV is reporting that the whistleblowers will disclose information about election rigging involving the prior president and certain military leaders. "We are more than willing (to expose more anomalies) because before, we were being suppressed. Now, we are free to talk," former Army technical sergeant Vidal Doble told GMA. Doble previously released a wiretapped conversation in June 2005 called "Hello, Garci." The recording portrays former President Gloria Macapagal-Arroyo discussing rigging election results with former Elections commissioner Virgilio Garcillano. Doble plans to name more names. Doble also reports that military officials told him to implicate only Samuel Ong, a former National Bureau of Investigation official who exposed the election scandal. He produced tape recordings implicating Macapagal-Arroyo in cheating to win her 2004 reelection. Ong died of lung cancer in May 2009. Corrupt military officials apparently wanted the deceased whistleblower to take the fall for the scandal. Jose Barredo Jr., another member of the whistleblower’s group, told GMA that he plans to disclose how funds for a seedling and fertilizer fund were diverted to Macapagal-Arroyo's campaign. Jueteng whistleblower Sandra Cam told GMA that her group applied for the Witness Protection Program because it trusts in the leadership of its present head, Secretary Leila de Lima. I reported here last March about the murder of jueteng whistleblower Wilfredo "Boy" Mayor. Jueteng is an illegal numbers game, and Mayor's testimony helped convict a political ally of Macapagal-Arroyo. These developments demonstrate the power of having whistleblower protections strong enough to convince whistleblowers that they will be safe in making their disclosures. The closer the issues are to national security, the stronger the protections need to be.

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In yesterday's Washington Post, an editorial called "Charging WikiLeaks" urges the Obama administration to refrain from pressing criminal charges against WikiLeaks leaders for releasing classified State Department cables. "Media outlets do not have a legal duty to abide by the government's secrecy demands," the editorial declares. What should the government do? At the end of the editorial, the Post editors suggest, "[s]horing up the independence and tools of the inspectors general . . . might persuade the next would-be whistleblower to tern to a responsive . . . government entity . . ..." Does the Post really think that would-be whistleblowers don't have the address of the House and Senate Intelligence Committees? My experience is that inspectors generals are good at taking action against corruption that the leadership does not want.  If it is the leadership that is corrupt, then the inspector general they pick is unlikely to take action against them.  My hunch is that most would-be whistleblowers would figure that out. How about meaningful legal protections against retaliation? The current version of the Whistleblower Protection Enhancement Act (WPEA) in the Senate (S. 372) would leave national security whistleblowers stuck with the decisions of the leaders of the intelligence agencies.  That is likely to be worse that the Merit System Protection Board (MSPB) which rules against whistleblowers over 98% of the time. The House version (HR 1507) would allow all federal employees to have access to jury trials.  Even the employees of national security agencies have access to jury trials for Title VII claims of discrimination. The legal system has figured out how to permit these claims to be tried without damaging national security. It is time we use this process to enhance national security by making sure that whistleblowers have the gold standard of justice when they pursue the lawful means of raising concerns about abuses.

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Howard Lafranchi, of the Christian Science Monitor, has written an article about the considerations faced by national security whistleblowers. The article is called, "WikiLeaks: When is it 'right' to leak national security secrets?" Lafranchi lays out how the government is likely to face a rising number of national security whistleblowers. The Washington Post series, Top Secret America last month revealed that the government has issued security clearances to 854,000 people.  The national security regime is so large and diverse, and the technology for making disclosures is so prevalent, that it is hard to imagine that there will not be more leaks. FBI whistleblower Coleen Rowley told Lafranchi that, "The classifying of information has gone way up – it's doubled or tripled since these wars began – and then we have nearly nine years and counting of Afghanistan and Iraq and the controversial practices associated with them." Lafranchi also quotes me, using the introductory comments I made to explain the nature of whistleblowing. "In legal cases, we speak of the 'protected activity' of the whistle-blower, the individual who comes forth with information about something the employer is doing that is damaging to the public good." Those who want to read more about my thoughts on the WikiLeaks disclosures can see my prior blog post. Lafranchi's article goes on to consider the variety of motives that may influence a person to become a whistleblower. I am reminded of a number of my clients who had no intention of become whistleblowers, but were surprised to learn that just by doing what they thought was right, they had engaged in "protected activity."

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Student Paresh Dave of the Annenberg School of Communication and Journalism at the University of Southern California (USC) has written an incisive story about how national security whistleblowers can protect themselves while blowing the whistle on misconduct by government officials. Dave's story is called, "Whistleblowers Have Some Protection, If They Leak To The Right People." He notes that the government is currently investigating detained Specialist Bradley Manning to see if he could be the source for the WikiLeaks.org release of 91,000 classified State Department cables. Dave spoke with me about my prior blog post about how Manning might have protected himself if he had consulted a lawyer before blowing the whistle on the unnecessary civilian casualties of the wars in Iraq and Afghanistan. If he had learned about the Military Whistleblower Protection Act, 10 U.S.C. § 1034, he could have made his disclosures to members of Congress and preserved a legal defense to the impending charges.

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National media is abuzz today with the release by WikiLeaks.org of 91,000 classified State Department cables about the war in Afghanistan. WikiLeaks.org also disclosed that it had previously released the cables to The New York Times, the Guardian of London, and Der Spiegel to help it review the documents for newsworthy information and to screen out information that could cause harm if disclosed. According to a Washington Post story, WikiLeaks.org founder Julian Assange called the release, "the nearest analogue to the Pentagon Papers." Indeed, the cables detail the extent of assistance the Taliban have received from Pakistani intelligence officers. They show the debilitating demands faced by soldiers on the field, and the extent of civilian casualties and waste in this protracted war. It does sound more and more like Vietnam. Truth is the first casualty of war, and whistleblower leaks are the best medicine.

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More and more employers are investing in devices that can track their employees with the Global Positioning System (GPS). Pagers, cell phones and other devices can include GPA tracking. Employers can use the available information to record delivery times, travel speeds, hours of work and employee locations. The Baltimore Sun reported this week about how the local police department is using an officer's BlackBerry tracking in the investigation of an officer accused of sexual assault. The department spent $3.5 million in stimulus money to issue the devices to its officers, and it is now using them to assess the alleged victim's claims. Some trucking companies are using the data to corroborate a driver's logbook, but others avoid using any devices that could interfere with drivers who are pressured to drive longer than allowed and then keep a "legal" log instead of an honest one. My friend David Marshall of Katz, Marshall & Banks, LLP here in Washington reports that he once used an employer's GPS tracking information to compute a client's hours of work and win an case for unpaid overtime. I can imagine this new technology creating both opportunities and risks for whistleblowers. In transportation, for example, knowing that the employer has GPS tracking information may pressure some employees to blow the whistle on supervisor pressure to drive too fast or too far. Keep in mind, the employer will own this information and may chose to use it selectively.  Workers who do what they are told without asking questions may have their violations overlooked.  Whistleblowers may be cherry picked for discipline. Unions may ask for equal access to GPS data during the investigation of grievances or in collective bargaining. Whistleblowers may seek the data in discovery to prove employer knowledge of violations, or to show disparate treatment. Some devices, including cell phones, can be active even when they are turned off. Of these, some may be disabled by removing the battery. Whistleblowers need to be familiar with the technology assigned to them and mindful of how they and their employers can use it.

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This morning the Washington Post published the first of a three-part series on “Top Secret America.” The series is a culmination of a two-year investigation into America’s post 9/11 intelligence community. I, like most Americans, knew that the intelligence community was large, but I was still shocked to see the sheer numbers of agencies, employees, facilities, and money being spent. The article explains how this mammoth bureaucracy continues to grow even though most of its inefficiencies can be traced to being too large to manage – one agency does not know what other agencies are doing.

The most disturbing part is that there is little to no accountability for these agencies. One can argue that if it is human nature that if you think no one is watching you are going to take a cookie out of the jar, then pretty soon you are going to walk away with the whole jar and not even think twice about it. The employees who have the guts to stand up and object are quickly squashed with little to no recourse. The authors of the article even point out that most officials they spoke to requested anonymity because “they feared retaliation at work for describing their concerns.” These officials were not disclosing classified information, they were simply criticizing the management of their agencies.
(Cartoon Credit: 2002 Pittsburgh Post-Gazette)

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Ed O'Keefe of The Washington Post is quoting Stephen M. Kohn, Executive Director of the National Whistleblowers Center, in a story appearing on today's Fed Page. Called, "Immigration agency assailed over leak probe," the story reports on criticism the immigration service is getting from the American Federation of Government Employees (AFGE) Local 118. AFGE is upset that management at the immigration service is conducting a witch hunt for whoever leaked to The Washington Post an email about quotas for arrests of undocumented immigrants. The investigation has focused on an agent who has an Asian last name, apparently because the Washington Post reporter also has an Asian last name.

Kohn told O'Keefe that the backlash for President Obama on prosecuting whistleblowers is less than it would be since Obama is a Democrat.  "It mutes the criticism," Kohn said. Kohn also said that whistleblowers face more risk since the president has not yet appointed a Special Counsel to protect them. Rep. Darrell Issa (R-Calif) told O'Keefe that he is calling on the president to appoint top leaders for 15 inspector general offices that still lack permanent leadership. Rep. Issa's letter is available here.

O'Keefe's story also mentions other whistleblowers facing prosecution by this administration.  These include Thomas Drake who used to work for the National Security Administration (NSA).  The article also mentions concern about the Internal Revenue Service failing to issue any whistleblower rewards, but neglects to mention Bradley Birkenfeld who is still in jail after delivering to the U.S. government information that helped collect $20 billion in unpaid taxes.

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Two letters to the editor printed in today's Washington Post reminded me of a meeting I attended in May of the FAA Whistleblowers Alliance. One of today's letters was from the Potomac TRACON local of the National Air Traffic Controllers Association. The other letter, by FAA Administrator Randy Babbitt, extolled the virtues of the FAA's Partnership for Safety program which seeks "to encourage employees to speak up when they see a mistake or a safety issue." He adds, "Voluntary reporting is a key element of our safety culture . . .." I am glad that we agree on the need to have employees come forward with safety issues.  I cannot help but think, though, that such programs would be more effective if all federal employees felt secure that they would be protected from retaliation. When federal employee whistleblowers have their cases limited to the Merit System Protection Board (MSPB) which rules in their favor in only 1.7% of the time, they would face a strong incentive to shut up and save their careers. To me, this is a good reason to support the House version of the Whistleblower Protection Enhancement Act (WPEA), HR 1507, to assure all federal employee whistleblowers that they can have access to our customary legal process of jury trials.

At the FAA Whistleblowers Alliance meeting, Gabe Bruno (standing in photo) spoke about regulatory capture. It is the phenomenon in which government agencies tend, over time, to align themselves with the industry they are supposed to regulate. He is a former FAA manager, and now an AIR21 expert. He was thinking about the FAA.  I think about MMS and the Gulf oil spill. Gabe Bruno also spoke about the margin of safety. He handed out the chart pictured here (follow this link for a PDF version). The point is that we have aviation regulations to keep every day operations safe, and as far away as possible from the conditions that cause disasters. This is the margin of safety.  Every time anyone violates a regulation, suppresses a maintenance need, or intimidates a whistleblower, we move one step closer to a catastrophe. Our margin of safety gets narrower. When Congress makes whistleblower protection laws stronger, we have a wider margin of safety. People have less fear of retaliation and are more likely to speak up. We might not know when or how, but over time, the wider margin of safety will save lives.  Gabe Bruno also passed out a 2008 letter from the House Transportation Committee that reveals some of the regulatory capture problem at FAA, and two of his letters to the FAA about what that agency can do now to increase our margin of safety.

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