ProPublica: Washington’s War on Leaks, Explained

Summary: This article explains the new Senate bill that has been proclaimed to be aimed at preventing "leaks," but which has been denounced by open government groups (like GAP) for hindering whistleblowing and attacking truth-tellers. The bill would require intelligence employees to report all contact with media, and allow only directors or public affairs staff to “provide background or off-the-record information,” among other provisions.

Key Quote: Tom Devine, legal director for the Government Accountability Project, said that those two provisions amounted to “a gag order on unclassified information,” which could violate whistleblower and free speech protections.

Grand Forks Herald (ND): Reprimand Lifted for Spirit Lake Whistleblower

Summary: Earlier this week, it was revealed by The New York Times that a federal health services psychologist had been reprimanded after reporting pervasive child abuse at a North Dakota reservation to his superiors. Now, the Indian Health Service has ordered the letter of reprimand be removed from the whistleblower’s file and his previous promotion restored. According to a spokesman for his office, this move comes after Senator John Hoeven (R-ND) had expressed concerns about the retaliation.

Business Week: UBS Whistleblower Birkenfeld Released from US Prison

Summary: UBS whistleblower Brad Birkenfeld was released from prison earlier this week. Back in 2007, Birkenfeld shared information with the federal government that the Swiss bank was helping thousands of Americans illegally evade taxes. He began a 40-month jail term in early 2010 after pleading guilty to conspiracy (he was released early). The GAP National Security & Human Rights team looked at Birkenfeld’s case – and the terrible message it sent to financial industry whistleblowers – in a blog post yesterday.

Yesterday marked the end of Bradley Birkenfeld’s prison term for conspiracy to defraud the United States. However, what he actually did was save taxpayers billions of dollars after exposing the secret corruption of UBS, the largest bank in Switzerland. UBS conducted a tax evasion scandal, allowing thousands of Americans to illegally evade taxes by using offshore bank accounts. After complaining to the UBS with no response, Birkenfeld blew the whistle to the U.S. government about the scheme. He provided extensive information about the company’s illegal operation, including the UBS agents directly involved and the details of 19,000 American-owned accounts.

In return, Birkenfeld was prosecuted, after pleading guilty to conspiracy in 2008. The DOJ claims Birkenfeld was not forthcoming about his status as a private banker for Igor Olenicoff, but Birkenfeld made his status known prior to the indictment in testimony to the Senate. In this same testimony, he revealed Olenicoff’s money laundering scheme. From GAP’s Jesselyn Radack:

After negotiations with the Justice Department broke down over its refusal to provide Birkenfeld a "friendly subpoena," which would provide the compulsory process necessary for him to reveal client names without violating Swiss bank secrecy laws, he reached out to the U.S. Senate Permanent Subcommittee on Investigations, which was investigating tax havens and more than happy to subpoena him.  Accordingly, Birkenfeld testified to the Senate on October 11 and November 13 of 2007, in which he identified Igor Olenicoff by name as one of his biggest clients.  At the same time, Birkenfeld also provided substantially the same information on Olenicoff to the IRS and the SEC.

In other words, prior to Olenicoff himself being charged criminally by the Justice Department, Birkenfeld had provided sworn testimony to the Senate identifying him, described his $200 million account at UBS, and detailed his own involvement as Olenicoff’s private banker at UBS.

For his truthful exposures, Birkenfeld spent two and a half years in prison, while those involved in the tax evasion scheme received little to no punishment. Martin Liechti – the UBS executive who led the illegal operation – returned to Switzerland without further punishment. As the kingpin walked with impunity, other small time crooks who assisted in the scandal were granted amnesty in return for small fines. The bank received a $780 million dollar fine, although the scandal cost the U.S. billions of dollars.

Wired: Whistleblower, Suspected of Leaking Warrantless Spying Program, Sues NSA

Summary: NSA whistleblower Diane Roark – who the federal government suspected of exposing the Bush administration’s warrantless wiretapping program – has filed suit against the agency for failing to return her seized computer and refusing to clear her name. Fellow NSA whistleblower and GAP clients Thomas Drake, Bill Binney, and J. Kirk Wiebe also had their computers seized and not returned.

Federal Times: Open Government Groups Denounce Proposed Penalties for Classified Leaks

Summary: Several open government groups are denouncing a Senate bill that could strip intelligence whistleblowers of their pensions if an agency head decides they “improperly leaked classified information.” The groups, including GAP, sent a letter to the Senate Monday to protest this egregious punishment.

BBC: HBOS Whistleblower Hits Out at Bank Regulators

Summary: A UK whistleblower from HBOS, a banking and insurance company, is calling for criminal prosecutions for those involved in the LIBOR rate-fixing scandal, which includes banks in Europe and the U.S.

Stars and Stripes: Tailhook Whistleblower Wants Congressional Hearing on Lackland

Summary: A whistleblower who went public about the pervasive sexual assault at the Navy’s Tailhook convention more than 20 years ago is calling for Congress to investigate Lackland Air Force Base in Texas, where a at least 38 women have reported being sexually assaulted.

Prague Daily Monitor: Corruption Whistle-Blower Michalek Running for Senate

Libor Michalek, the former head of the Czech Republic's Environmental Fund who blew the whistle on corruption at the Ministry of Environment, has been nominated by multiple parties to, and will, run in the upcoming Czech Senate elections this autumn. Michalek is considered to be one of the young country's most notable historical whistleblowers.

GAP interviewed Michalek for a special international episode of Whistle Where You Work last year, which detailed the current state of whistleblowing in the Czech Republic.

We Need More "Disruptive" Food Integrity Whistleblowers

GAP's Food Integrity Campaign (FIC) responds to the New York Times article published this week that focuses on the "disruptive" character traits of an FDA whistleblower impacted by the agency's recent surveillance scandal. FIC lists brave whistleblowers (and GAP clients) who had to stir up trouble where they worked in order to expose wrongdoing and threats to public health.

AFP: Malaysian Opposition Whistle-Blower Charged

A Malaysian political strategist has been charged for illegally disclosing bank account details after blowing the whistle on the misuse of government funds. He said the government "is not prepared to protect whistleblowers, but persecute them instead."

I've said since the collapse of the Espionage Act case against National Security Agency (NSA) whistleblower Thomas Drake that the case was built on sand and collapsed under the weight of the truth.

Since the case collapsed last summer, the more information revealed publicly about the government's evidence only confirms the flimsiness of the evidence used to prosecute Drake under the heavy-handed Espionage Act. I wrote yesterday on a Washington Post editorial asking "is the classification system dysfunctional?" after it was revealed that an Espionage Act count was based on a completely innocuous and obviously unclassified e-mail.

Now, Steven Aftergood of the Federation of American Scientists reports on the release of NSA's supposed justifications for the clearly incorrect classification designations and former G.W. Bush administration classification czar's J. William Leonard's scathing critique of the NSA's after-the-fact decisions. All of the allegedly-classified information found in Drake's home underwent a "forced classification review" after which NSA experts claimed it was classified.

Props to Aftergood for using FOIA to get the information publicly released. It should give any American pause to consider the fact that not only will the government consider such bland and unremarkable information as "classified," but use that banal information as the basis to prosecute a whistleblower under the Espionage Act.

Leonard's complaint articulates how damaging it is to the classification system to over-classify information and use that wrongly-classified information to aggressively prosecute a whistleblower under the Espionage Act:

Nonetheless, when deciding to apply the controls of the classification system to information, government officials are in-turn obligated to follow the standards set forth by the President in the governing executive order and not exceed its prohibitions and limitations. Failure to do so undermines the very integrity of the classification system and can be just as harmful, if not more so, than unauthorized disclosures of appropriately classified information.

The New York Times has another story on the Food & Drug Administration (FDA) surveillance scandal, but completely misses the significance of fact that the FDA monitored employees, reporters, and congressional staffers, including whistleblowers’ protected communications.  

The Times’ latest report focuses on one of the FDA whistleblowers, Dr. Robert C. Smith, and includes accusations that Dr. Smith was “scorning negotiations, making enemies of critics … papering Washington with complaints,” “sowing chaos,” and creating a “toxic workplace.” It also includes descriptions of Dr. Smith as “annoying,” “disruptive,” “adversarial,” “confrontational,” and “disgruntled” and implies that Dr. Smith is not credible because he made claims of retaliation against previous employers.  

These are typical accusations made against whistleblowers who seek to bring to light government waste, fraud, abuse, illegality, or dangers to health and public safety. Moreover, having his public safety concerns ignored and enduring whistleblower retaliation can make even the most docile employee “adversarial” and “disgruntled.”

However, even if true, Dr. Smith’s personality is irrelevant to his status as a whistleblower. Even if Dr. Smith was “annoying” or “confrontational,” that has no bearing on whether he is also a whistleblower. There is no requirement that to be a whistleblower, you have to be a choir boy, white knight or even a nice guy. An employee becomes a whistleblower by making a disclosure that reasonably evidences waste, fraud, abuse, illegality or a danger to health and public safety. Nothing in the Times article suggests Dr. Smith did not make such a disclosure.

Even worse, the Times article questions Dr. Smith’s and the other FDA whistleblowers’ motives because they availed themselves of one of the few available remedies for whistleblowers by filing a lawsuit under the False Claims Act. While the Times is correct that the law “allows whistle-blowers to collect up to 30 percent of any damages,” it is completely disingenuous to criticize a whistleblower who uses the False Claims Act because he “stood to profit from his accusations,” when the damages reward in the False Claims Act creates a financial incentive for whistleblowers to come forward. Isn’t that point of a reward?

The New York Times: Psychologist Who Wrote of Abuse Is Punished

Summary: A federal health services psychologist who reported that an American Indian tribe in North Dakota was ignoring widespread child abuse has been reprimanded and reassigned. After writing a letter to the Department of Health and Human Services and the Indian Health Service, his promotion was rescinded and he was transferred to regional offices in South Dakota. According to the article, the ND reservation has been “buffeted by accusations of child abuse and neglect during the past 15 months.”

Grassley Takes to YouTube to Defend Whistleblower

Summary: Senator Charles Grassley (R-Iowa), one of the Senate's longtime whistleblower rights champions, took to YouTube recently to defend whistleblowers and their importance in society. GAP’s Hannah Johnson blogged about the video and its message yesterday.

Slate: WikiLeaks Temporarily Fools Internet with Fake New York Times Op-Ed

Summary: Over the weekend, a New York Times op-ed in defense of WikiLeaks by former Times editor Bill Keller made the Internet rounds, being tweeted by a number of journalists. As it turns out, the op-ed was a fake, and WikiLeaks has claimed responsibility.

WikiLeaks founder Julian Assange remains holed up in the Ecuadorian embassy in London, awaiting a decision on his bid for political asylum. Assange’s mother met with the Ecuador Foreign Minister yesterday and says she is worried about her son’s health after nearly seven weeks in the embassy.