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

The American people deserve to know that their money is being spent in a way that  will enhance national security and not trample on their civil liberties. As Glenn Greenwald accurately points out, there is a small group of individuals who are able to “shed a small amount of light on what actually takes place.” There is an even smaller group of employees who are willing to risk their careers to protect the American people. In order to create oversight and protections for national security employees, Congress must immediately pass the Whistleblower Protection Enhancement Act (H.R. 1507) and the President must sign it into law. H.R. 1507 would fully protect these employees so that they could safely raise issues without losing their jobs. There are procedures in place that would protect classified information from leaking out, but would allow employees to take their case to federal court for a fair trial. The Government Accountability Office has stated that it will not pose a risk to national security to give these employees court access.

The Senate has been pushing a bill (S. 372) that would grant some federal employees additional whistleblower rights, while stripping other employees, including FBI employees, of what little rights they have now. The bill creates a sham procedure where national security employees appear before a board of intelligence officials to prove that an intelligence agency has been retaliating against them. Any person with a bit of common sense will be able to predict what will happen to that employee. The outcome will not be pretty, especially when the agency is allowed to introduce secret evidence that the whistleblower is not allowed to see or counter.

To the disappointment of the whistleblower community, President Obama has run away from his campaign promise to protect whistleblowers and support H.R. 1507. It is up to the American people to demand what they were promised.  

Following his resignation, Lt. Col. Vandeveld was ordered by the military commission judge to testify for the defense in Jawad’s case. He spoke honestly under oath concerning the constitutional violations committed against Jawad including subjecting him to the sleep deprivation regime, known as the “frequent flier program,” which involved moving him to a different cell 112 times over a 14-day period-an average of once every 2 1/2 hours.  In return for his honesty under oath and the public outrage that followed, the military issued him his first ever negative performance evaluation.
 
Lt. Col. Vandeveld was then subpoenaed in 2009 to testify before Congress regarding the Military Commissions Act of 2009, where he again spoke the truth, stating, "the military commission system is broken beyond repair. Even good faith efforts at revision...leave in place provisions that are illegal and unconstitutional."  He also explained to Congress that trying to revise the commission system “place our men and women in uniform at risk of unfair prosecution by other nations abroad, harm the reputation of the United Sates,....[and] undermine the fundamental values of justice and liberty upon which this great country was founded.”  Instead of taking his testimony seriously, the Army chose to retaliate against Lt. Col. Vandeveld for his courageous stand and also to resume the commissions at Guantanamo with minimal revisions.

Fortunately for Jawad, Lt. Col, Vandeveld’s testimony helped lead to the exclusion of his coerced confession and a federal judge granting his habeas corpus petition and releasing him from detention.  However, just 4 months away from 20 years of outstanding service to our nation, Lt. Col. Vandeveld’s career is in jeopardy. On June 1, a military promotions board will meet, ironically, not to honor or promote Lt. Col. Vandeveld for his courage.  The promotion board will more than likely to refer him to a show cause board where he would be forced to justify his continued service in the Army.

We cannot allow the reputation of a distinguished soldier to be destroyed because he defended the constitution that so many of our men and women have died to protect.  Please take a few minutes before you head out to attend a Memorial Day parade or picnic to send a letter in support of Lt. Col. Vandeveld and forward it to your friends and family.  

 
 

Administrative judge Franklin Kang issued the decision. In 2007, Judge Kang ruled in favor of federal employees ZERO times in 71 cases. In 2008, federal employees prevailed ZERO times out of 68 cases. (Thank you to Charlotte Yee and the Project on government Oversight for sharing this information.)

This deplorable decision only further highlights the need for full court access for all federal employees, especially those who risk their careers to protect our safety and national security. As we have written before, the MSPB has consistently failed to protect federal employee whistleblowers, and Robert MacLean is one of many who have gone before the MSPB seeking justice, but come up empty handed.

There is legislation pending in Congress that can change this system. The House version of the Whistleblower Protection Enhancement Act (H.R. 1507) contains provisions that would grant federal employees access to federal court and jury trials.

Robert MacLean will appeal the administrative judge’s ruling, and continue his fight for reinstatement and justice. We hope he prevails. We also hope the law will change so that national security whistleblowers will have access to the same customary justice that car accident victims have – jury trials.

To take action now and send a letter of support for Robert MacLean & H.R. 1507, click here.

*Meryl Grenadier (NWC Fellow) drafted this post.

Mr. Kohn discusses in detail the “poison pills” that exist in the current version of S. 372, and how these provisions will discourage national security employees from coming forward and how hurdles included in the bill make it virtually impossible to obtain a finding in their favor. He also pointed out that individual Americans, who contacted their Senators individually out of concern for our nations security, have created much of the public focus on this bill.

Visit Boiling Frogs Post to hear the entire podcast.

*Meryl Grenadier (NWC fellow) contributed to this post.

In December 2009, Donald Gates, an innocent man, who spent 28 years in jail after being convicted for crimes he did not commit, was set free by D.C. Superior Court after DNA testing confirmed that forensic testimony presented in court by FBI analyst Michael Malone was false. On the basis of Malone’s fabricated tests and false testimony Gates was wrongfully convicted of rape and murder.

Gates’ case was on a list of cases ordered to be reviewed following the DOJ IG’s report verifying Whitehurst’s whistleblower allegations. Notably, Whitehurst specifically blew the whistle on Michael Malone, who the IG confirmed deliberately lied and falsified evidence in the judicial inquiry brought against Alcee Hastings (then a sitting federal judge and now a member of Congress). As a result of verifying that Malone lied in the Hastings case, the DOJ decided to conduct a review of all of Malone’s cases.

However, Gates’ case was not properly reviewed by DOJ and he continued to sit in jail until December 2009 when new DNA testing confirmed that he could not have committed the crime for which he had been convicted.

This is another reason why FBI whistleblower protections should not be weakened as proposed by the Senate in S. 372 and reported last week in Politico.

But for Whitehurst blowing the whistle on Malone, the FBI lab analyst who lied in this case, Gates’ case never would have been reviewed and he likely would still be in jail. When efforts were made by Gates’ attorneys in 2008 to seek new DNA testing they were able to persuade the judge to order that test because the IG had verified Whitehurst’s allegations against Malone in the 1997 IG report. Had Whitehurst not come forward nobody would ever have looked at Gates’ case or anyone else’s case handled by the FBI crime lab. Gates would still be sitting in jail even though he is an innocent man.

By weakening FBI whistleblower protections to permit the FBI to investigate and adjudicate whistleblower retaliation claims by its own employees and agents, the Senate is ensuring that nobody will blow the whistle on misconduct at the FBI. If you want to know the consequences of that, go ask Donald Gates.

Please TAKE ACTION and tell the Senate to fix the repeal of existing FBI whistleblower protections.

If that is not bad enough, the Senate has proposed in S. 372 a very limited right to seek a jury trial in federal court in only some whistleblower cases (e.g., where there is a suspension of 14 days or more or a removal) if the employee files a request with the MSPB at an early stage of the case. However, the federal employer will be permitted to file a motion under Federal Rule Civil Procedure Rule 12(d), forcing the employee to survive summary judgment before the MSPB can permit a case to go to federal court. At that stage, the employee will have the benefit of no discovery, or may be forced to litigate the merits of a case on summary judgment, before the MSPB rules, in its discretion, whether or not the employee should be permitted to take the case to federal court and seek a jury. The same MSPB judges who rule currently rule for employees 1.7% of the time will be making these decisions under this convoluted procedure.

Finally, the MSPB statistics are revealing with respect to how the Senate proposes to “enhance” the whistleblower rights of employees who work for intelligence agencies and the FBI. In S. 372, employees who work in the field of national security will get no court access. Instead, they will be provided an administrative procedure that is even worse than the MSPB. In S. 372 the Senate proposes that FBI, CIA, NSA and other intelligence agencies will assign their own judges to decide the cases. Once the very agency that fired or disciplined the employee for whistleblowing makes the ruling as to whether there was retaliation the employee can appeal to a new Board that must defer to the agency’s decision. It is hard to imagine how anyone could devise a system that is worse than the current MSPB system to decide whistleblower cases, but that is precisely what the Senate and the Obama administration are proposing in S. 372.

The proposals in S. 372 are doomed to fail because they will further bias the system in favor of the employer. We already know the track record of the MSPB with over 30 years of statistics where employees now win only 1.7% of the time. Giving the MSPB more power, without providing employees full access to court, will not make much difference in these statistics. As for the FBI and intelligence agency employees, creating an entirely new administrative system that is even more biased in favor of the employer than the MSPB, without any court access for trials, is an insult to the brave employees who protect our national security. Accused terrorists have more rights in court than any employee of the FBI or intelligence agency blowing the whistle on illegal conduct, fraud or waste and abuse.

There is a solution to this problem. The House of Representatives with broad bi-partisan support has twice passed a bill that, while not perfect, addresses most of these problems in federal employee whistleblower cases in a constructive way based on other laws, such as Title VII of the Civil Rights Act, that provide court access for federal employees in addition to administrative remedies. The House bill (HR 1507), introduced by Rep. Chris Van Hollen (D-Md) and Rep. Todd Platts (R-Pa), provides important reforms to the MSPB and permits full court access for employees to obtain jury trials in federal court. 

Tell your Senator to strengthen the Senate bill by removing the poison pill provisions of S. 372 that are an impediment to real reform before it passes the Senate.

• The three detainees were taken to a black site referred to as “Camp No,” which, according to the article, soldiers believe is operated by the CIA. Later that night, the same white van that was used to transport prisoners to “Camp No,” returned to Camp America and went directly to the medical clinic.
   
• Well before the time official reports state that the prisoners were found in their cells, accounts spread throughout Camp America that three prisoners had died by “choking on cloth.” The following morning, the camp’s commanding officer told a gathering of personnel that “we all know” that the prisoners died by choking on cloth, but an official account would be released saying that they had committed suicide by hanging themselves. All present were ordered not to contradict or undermine the official account in any way.
   
• The story then traces a cover-up of the deaths involving many different agencies of the federal government—including the Justice Department—that has continued for three and a half years, and has continued into the Obama Administration.

The NWC supports whistleblower Joe Hickman for trying to bring the truth to light. Whistleblowers would agree with Sergeant Hickman that “silence was just wrong.” Please read the full Harpers article for the rest of this incredible story.


*Meryl Grenadier (NWC fellow) contributed to this posting.