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

On Monday, the Merit Systems Protection Board (MSPB) issued a decision once again denying whistleblower protection to a courageous federal employee.  In July 2003, U.S. Federal Air Marshal Robert MacLean blew the whistle on the Transportation Security Administration’s (TSA) plans to remove air marshals from long distance flights during the height of a terrorist alert in order to save money.  Congressional outrage the day after MacLean’s disclosure prevented the TSA from implementing the plan and the security of long distance flights was never compromised. On August 31, 2006, over four months after terminating MacLean and over three years after MacLean’s disclosure the TSA issued a regulation labeling his disclosure as Sensitive Security Information (sensitive but unclassified information).

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As you know, we have been waging an intense campaign for new whistleblower protection laws. We have experienced recent victories and setbacks. And now, prominent whistleblowers like Bunny Greenhouse are calling us all to action. Throughout this campaign, our staff has been incredibly impressed with the level of support shown by our blog readers, facebook users, and all other online grassroots supporters. We have sent thousands of letters to Congress and we are achieving real change!!! 

This groundswell of support is driving a national conversation about whistleblower rights, which is evidenced by the fact that the national news media is paying very close attention to these recent developments. Just today, there are two stories in the Washington Post detailing the struggle for whistleblower protections for federal employees, and especially national security whistleblowers. See the links below for the articles.

"Advocates Determined to See Whistleblower Protections Pass"

"Obama, Gates at Odds Over New Whistleblower Protections"

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I am happy to say that we have received another significant endorsement for federal employee whistleblower protections. The Federal Law Enforcement Officers Association has issued a statement in support of the Whistleblower provisions passed by the House of Representatives in the Economic Stimulus package last week, and is urging the Senate to pass the bill with the whistleblower provisions intact. Further, FLEOA is calling on President Obama to enact an executive order which would restore the careers of Law Enforcement Officers (including counterterrorism agents) who have had their careers destroyed after blowing the whistle.

Jon Adler, the National President of FLEOA had this to say about the retroactive protections:

"After abiding by their oath to uphold the laws of the Constitution, this small select group of federal law enforcement and counter-terrorism agents suffered unwarranted retaliation due to the ineffective and outdated federal Whistleblower Protection Act currently in effect."

 

 

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The Washington Independent published an article addressing the lack of protection offered to whistleblowers in the stimulus bill.  The article quoted Stephen Kohn, who states: "The biggest defect in the current language in the House and Senate versions, is about blowing the whistle internally." The bill protects only employees that report wrongdoings to Congress or an Inspector General, but does not provide protection to those that make internal reports to their own employers. Protecting taxpayer money with strong oversight and accountability safeguards is of extreme importance, therefore Congress must provide adequate protection for all whistleblowers. 

"Whistleblowers Vulnerable in Stimulus" by Daphne Eviatar

 

*Thelma Lizama (a NWC intern) contributed to this posting

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This week’s cover story in Newsweek focuses on Thomas M. Tamm, a former Justice Department lawyer in its Office of Intelligence Policy and Review.  Tamm blew the whistle on the National Security Agency's illegal wiretapping on U.S. citizens.  As his reward for heroically exposing this illegal program, Tamm could be charged with violating national security and intelligence laws and jailed for up to 10 years.

Tamm is currently under investigation by the FBI for reporting NSA's illegal actions to the New York Times.  Unfortunately, Tamm had no other option.  He was repeatedly silenced by his supervisors.  There was no place for him to report the criminal activities of the government's highest ranking employees, and there are no whistleblower protections for national security and intelligence employees who suffer retaliation.  

President-Elect Obama and Attorney General nominee Eric Holder will be forced to decide whether to prosecute Tamm.  Although both have publicly condemned the warantless wiretapping program as outside the bounds of the law, there has been a rise in the criminal prosecution of whistleblowers in recent years.  This disturbing trend includes the Justice Department's prosecution of Richard Convertino, who blew the whistle to Congress on the failure of the Bush administration to prosecute terrorists after 9/11.  

It is time to send a message to those who retaliate and threaten whistleblowers, and put an end to the government's use of "national security" as a justification to break the law.

If you would like to take action on this critical issue please click here.

 

 

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According to a report in today's Washington Times, a leading FBI whistleblower has direct knowledge that illegal activities occurred in the highly controversial and top secret National Security Agency's domestic surveillance program. The whistleblower, Supervisory Special Agent Bassem Youssef, is the highest ranking Arab American agent employed in the FBI's counterterrorism division. His earlier concerns, that top FBI terrorism managers lacked expertise and experience in terrorism matters, were documented in a highly controversial deposition in which the former head of the FBI's Middle Eastern counterterrorism program testified that he did not know the difference between Shiite and Sunni Muslims. 
 

Below is a January 2008 video of Bassem Youssef  and his attorney Stephen Kohn discussing FBI procedures and civil liberties issues at the American Library Association's National Winter Conference.

 

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This morning, the AP released a story detailing the failure of the Department of Defense Inspector General's (DoD IG) office to perform it's two essential functions: (a) protect military whistleblowers and (b)investigate their claims. As one whistleblower in the story says: "They are supposed to serve as the conscience of the Department of Defense. And they're not." The AP used Freedom of Information Act Requests and interviews with whistleblowers and advocates to determine multiple shortcomings:

 

• Although DoD IG received over 3,000 whistleblower claims over the past six years, it found no wrongdoing by the military over 90% of the time.

• 73% of the cases were closed after only a "preliminary review."
   
• A confidential survey of the workers and managers in DoD IG found that the workforce was "demoralized and ambivalent." and that one-third of the employees there were described as "disaffected.

Revalations of this kind would be of concern in any agency or area of government, but this story is particularly worrisome. We know that the men and women serving our country in the military witness countless acts of fraud, waste, abuse, and much worse (think Abu Ghraib). The size of the Defense Budget, and the volume of lucrative government contracts to private corporations in recent years (see Bunny Greenhouse), has increased the need for oversight and whistleblower protection for military employees. Further, military whistleblowers are often more vulnerable to retaliation, and they often have no recourse whatsoever if their claim is rejected by the DoD IG.

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On September 11, we reported on the whistleblower case of former federal prosecutor Richard Convertino. Mr. Convertino has brought a Privacy Act action against the US government for leaking disparaging information with the goal of smearing Mr. Convertino in retribution for blowing the whistle on DOJ mismanagement of terrorism investigations. Last month, Federal Judge Max Cleland ordered Detroit Free Press reporter David Ashenfelter to appear and testify in depositions regarding the identity of his confidential DOJ sources who leaked the information.

Now, Mr. Ashenfelter is still refusing to testify, in violation of Judge Cleland's order. Steve Kohn, who is Mr. Convertino's attorney, has indicated that Mr. Ashenfelter could be held in contempt for his actions. This story has been reported nationwide, including articles with the Associated Press and in The Detroit Free Press

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Congress must enact real whistleblower protections


The Transportation Security Administration (TSA) announced today that it has entered into agreements with the Merit Systems Protection Board (MSPB) and Office of Special Counsel (OSC) to permit TSA employees to appeal whistleblower complaints to the MSPB.


These so-called “enhanced” whistleblower protections for TSA employees are completely illusory and ineffective.  These new TSA procedures provide no more than the inadequate and completely dysfunctional whistleblower appeal rights currently afforded to other federal government workers. 


The OSC’s track record of protecting whistleblowers over the last several years is abysmal.  OSC rules for whistleblowers less than 3% of the time and the head of OSC is under criminal investigation for obstruction of justice. MSPB rarely grants whistleblowers a fair hearing.  Over the last several years MSPB has ruled in favor of whistleblowers less than 5% of the time, and that number is rapidly declining.


In March of 2007, the House of Representatives overwhelmingly passed H.R. 985, “The Whistleblower Protection Enhancement Act of 2007,” by a bi-partisan vote of 331 to 94.  However, H.R. 985 has not been enacted into law and the most important “enhanced” whistleblower protections contained in that bill, such as the right to recover compensatory damages, de novo review and jury trials in federal court, have been stalled in the Senate.


Yesterday, both the House and Senate agreed to strong whistleblower protections in the Consumer Product Safety Improvement Act.  Notably, the Consumer Product Safety whistleblower protections extends to manufacturing employees some of the strongest whistleblower protections in the country, including access to jury trials in federal courts with strong remedies, including reinstatement, backpay, compensatory damages, and attorneys fees.


It is about time for Congress to enact the same strong whistleblower protections for all federal employees (including TSA screeners) that should soon be provided to manufacturing employees under the Consumer Safety Product whistleblower law.

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Bassem Youssef, an FBI Supervisory Special Agent and Middle Eastern counterterrorism expert, is scheduled to testify tomorrow (May 21, 2008) before the House Subcommittee on Crime, Terrorism, and Homeland Security in the Rayburn House Office Building, Room 2141


You may recall from previous posts that SSA Youssef has been the victim of ongoing retaliation from upper-level FBI managers ever since he began reporting serious mismanagement and misconduct in terrorism related investigations. Earlier this year, Mr. Youssef was gagged by the FBI when he was invited to speak before the American Library Association regarding the misuse of NSL letters to obtain phone records without a warrant.


SSA Youssef is expected to give shocking testimony about potentially catastrophic mismanagement the FBI's Middle Eastern counterterrorism programs. I encourage everyone to attend the hearing and show your support for this brave whistleblower. See the National Whistleblower Center press release below for more information.

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FBI WHISTLEBLOWER TO TESTIFY ON MISTAKES
INSIDE COUNTERTERRORISM PROGRAM

Unit Chief to disclose shortfalls in war on terror

WHAT:           FBI Whistleblower and Supervisory Special Agent Bassem Youssef testifying before Congress

WHEN:           Wednesday, May 21, 1:30 p.m. EDT

WHERE:         Rayburn House Office Building, Room 2141

Washington, D.C. -- FBI Counterterrorism Whistleblower Bassem Youssef will testify before the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security.

During the oversight hearing, titled On The FBI Whistleblowers: Exposing Corruption and Retaliation Inside the Bureau, Supervisory Special Agent Bassem Youssef will for the first time alert Congress and the American people to the grave deficiencies within the FBI's Counterterrorism Division since 9/11.

It is expected that Youssef's testimony will include previously undisclosed information.

Youssef is the Unit Chief of the FBI's Communications Analysis Unit. He is the highest-ranking Arab-American agent in the Counterterrorism Division, and the highest-ranking fluent Arabic speaker. In 1994, he earned the Intelligence Community's prestigious and coveted award, the National Intelligence Distinguished Service Medal, awarded by the Director of Central Intelligence. The award was for outstanding accomplishments in a terrorism case involving an al-Qaeda-related investigation.

Youssef has also been instrumental in reporting and rectifying problems with the FBI's National Security Letter program.

For more information about Youssef, please visit the National Whistleblower Center's website at http://www.whistleblowers.org/html/bassem_youssef.html

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