Dear GAP Supporters,
Thanks in part to the strong support of President Obama, there finally has been some progress on protections for federal whistleblowers. But at the same time, secrecy in the national security state is growing and threatening whistleblowers, the media, and freedom of speech.
Tell President Obama to End the War on National Security Whistleblowers, Sign the Petition Today!
The President deserves credit for helping to enact the Whistleblower Protection Enhancement Act and issuing a directive to protect some national security and intelligence community whistleblowers for the first time. But the Obama administration also has taken actions to undermine those same protections. There have been unprecedented prosecutions of so-called "leakers" under the Espionage Act. Also, a loophole supported by the administration allows agencies to cancel due process and strip whistleblower rights in the name of national security without appeal or oversight.
In fact, the Obama administration is at odds with itself over whistleblowers. While the Director of National Intelligence, the Department of Justice, and the Office of Personnel Management are making it easier to silence and retaliate against national security whistleblowers, government watchdog agencies such as the Office of Special Counsel and the Merit Systems Protection Board – each led by Obama appointees – are objecting to the national security loopholes for whistleblower protections.
A new film called The War on Whistleblowers: Free Speech and the National Security State tells the stories of four whistleblowers who were silenced – including GAP whistleblowers Franz Gayl and Thomas Drake – and the journalists who were finally able to get these truth-telling voices heard.
In the spirit of the film, we and our partners in the Make It Safe Coalition are asking people to stand up and demand that President Obama end the war on intelligence whistleblowers and the threats to our free speech in the name of national security.
Sign our petition to President Obama urging accountability in the national security state and strong protections for whistleblowers!
Shanna Devine is Legislative Coordinator for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.
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Los Angeles Times: A WikiLeaks Way Out
This editorial calls for a speedy conclusion to the ongoing trial of military whistleblower Bradley Manning. Manning, who has been held in custody by the US military since 2010 after obtaining and disclosing classified information, has already pled guilty on 10 counts that could subject him to 20 years in prison. The US government wants to take his charge further, however, and put him in prison for life under multiple violations of the Espionage Act.
Portland Press Herald: David Rohde – Leadership Failure Weakens UN
UN whistleblower James Wasserstrom – who GAP represents on advocacy issues – bore witness to illegality and corruption among top UN managers and has undergone a six-year battle against the organization. He finally received a meager settlement that discouraged future UN whistleblowers and left him worse off than before he blew the whistle. This editorial emphasizes the importance of whistleblowers in the United Nations – a vital organization plagued with administrative problems – and the dangers that lie ahead if the institution does not undergo serious change.
Key Quote: A new system put in place in 2006 to defend whistle-blowers is failing, according to a study by the Government Accountability Project, an American organization that defends whistle-blowers.
The group found that the U.N.’s ethics office received at least 343 inquiries from whistle-blowers about protection against retaliation as of last June, but only 1 percent of the claims were ultimately validated as retaliation.
Associated Press: Tenn. Animal Abuse Reporting Requirement Hits Snag in Senate; Sponsor Denounces 'Vigilantes'
A sponsor of Tennessee's 'Ag Gag' bill – which would require anyone recording images of animal abuse to submit footage or photos to law enforcement within 48 hours – said that the legislation was only meant to halt animal abuse, but a fellow Republican senator said it was more about preventing the filming of animal abuse and had serious reservations. A vote on the bill was delayed until Wednesday.
GAP's Food Integrity Campaign Director Amanda Hitt has explained (including to NPR and in a letter to The New York Times) why such mandatory reporting provisions are detrimental to whistleblowers.
The Constitution Project's Task Force on Detainee Treatment is an independent, non-partisan group that produced a report comprehensively documenting the United States' descent into torture. The Task Force released a 600-page report today. Among the Report's many conclusions:
U.S. forces, in many instances, used interrogation techniques on detainees that constitute torture. American personnel conducted an even larger number of interrogations that involved “cruel, inhuman, or degrading” treatment. Both categories of actions violate U.S. laws and international treaties. Such conduct was directly counter to values of the Constitution and our nation.
There is no firm or persuasive evidence that the widespread use of harsh interrogation techniques by U.S. forces produced significant information of value. There is substantial evidence that much of the information adduced from the use of such techniques was not useful or reliable.
The Senate Intelligence Committee approved its own 6,000 page report
, which similarly concludes that torture occurred and was ineffective at gleaning intelligence, but Congress refused to release the report publicly. Shame on Congress.
Along the same vein, the Obama administration has said it wants to "look forward, not backward" on torture, and the Justice Department has declined to prosecute any of the government officials who ordered torture, the doctors who supervised it, the lawyers who justified it, or the agents who actually tortured people. Shame on the Obama administration.
(The Justice Department instead chose to prosecute Central Intelligence Agency (CIA) whistleblower John Kiriakou, who refused to participate in torture and helped exposed the torture program).
The Task Force places much of the blame for torture on the high-level officials that ordered and authorized the practices, but finds that culpability also lies with the lawyers who rationalized torture. The report found that:
Lawyers in the Justice Department’s Office of Legal Counsel (OLC) repeatedly gaveerroneous legal sanction to certain activities that amounted to torture and cruel,inhuman or degrading treatment in violation of U.S. and international law, and indoing so, did not properly serve their clients: the president and the American people.
Under Attorney General Eric Holder, the Justice Department absolved
the torture memo authors (Jay Bybee and John Yoo) of any professional accountability for torture.
Despite the obvious ethical violations in rationalizing torture, I am the only Justice Department attorney who was referred the bar associations where I'm licensed in connection with a torture case (that of so-called "American Taliban" John Walker Lindh), and I blew the whistle in that case. (One bar referral is still pending a decade later).
The Task Force was also critical of the excessive secrecy surrounding the torture program:
The high level of secrecy surrounding the rendition and torture of detainees since September 11 cannot continue to be justified on the basis of national security.
If national security is no longer a justification for secrecy, as the Task Force concludes, then the only reason for continued secrecy is to cover-up torture and cover for the officials who perpetuated the torture program. (I've written
about the lengths to which the executive branch - particularly the CIA - has gone to protect and promote torturers).
A nation's greatness is measured by how it treats its weakest members.
We have been protecting the wrong people.This article orginally appeared in the Daily Kos.Jesselyn Radack is National Security & Human Rights Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.
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NPR: A Legal Twist in the Effort to Ban Cameras From Livestock Plants
The article explains the concerning language found in 'Ag Gag' legislation, including provisions that require anyone who videotapes or records animal abuse turn over a copy of the evidence to authorities within 24 to 48 hours. Mandatory reporting puts whistleblowers at risk for retaliation. GAP's Food Integrity Campaign Director Amanda Hitt – who also discussed this issue in today's New York Times Letter-to-the-Editor section – is quoted.
Key Quote: "The 48-hour time limit is a new twist to stop people from compiling information," says Amanda Hitt of the Government Accountability Project, a Washington, D.C.-based group that helps investigate reports of animal abuses.
According to Hitt, in order to prove that a serious animal abuse problem is occurring, undercover investigators must gather lengthy documentation. "You can't prove that animal abuse is systemic and recurring through one snapshot or video of an abused cow," she says.
Politico: Obama Administration Divides Over Whistleblowers
President Obama’s numerous pledges of transparency will come under pressure as a Federal Circuit will decide whether to allow the Justice and Defense Departments to fire its employees without any possibility of appeal. The White House has shown signs of approval for the move, which would designate even non-classified federal positions as ‘sensitive.’ If passed, this dangerous designation could eventually put employees’ civil liberties at risk throughout the federal government.
Key Quote: “This is an administration at war with itself. It’s Obama versus Obama,” said Tom Devine of the Government Accountability Project.
“The Obama Administration is seeking a blank check to expand this throughout the executive branch,” Devine said. If the administration’s approach prevails, he said, “any job that matters in the civil service will be outside the rule of law.”
Newseum: Special Event – Special Screening and Panel Discussion – “War on Whistleblowers”
The new documentary “War on Whistleblowers: Free Press and the National Security State” will be previewed at the Newseum tomorrow afternoon in Washington, DC with a screening and panel discussion open to the public. The film, which profiles various government whistleblowers from recent years, includes interviews with GAP Legal Director Tom Devine and National Security & Human Rights Director Jesselyn Radack, as it focuses on the stories of four whistleblowers, two of which (Franz Gayl, Thomas Drake) are GAP clients. The event is free with regular paid admission.
In this interview, director Robert Greenwald describes his film, which places US government truth-tellers in a historical narrative, illustrating their essential role in our democracy.
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On Apr. 5, 2013, the District Court of the District of Columbia ordered the Inter-American Investment Corporation (IIC), the multilateral private sector lending arm of the Inter-American Development Bank (IDB), to turn over documents to Jorge Vila, who is suing the institution. The ruling read:
it is hereby ORDERED that the defendant shall produce to the plaintiff any contracts for consulting services or reports created by consultants that contain references to the work allegedly performed by the plaintiff, the value of the type of work allegedly performed by the plaintiff, or the value of an initiative involving the type of work the plaintiff allegedly performed if the defendant had chosen to pursue it. Contracts and reports that do not contain any of these references need not be produced. It is further ORDERED that the defendant shall produce to the plaintiff any information regarding salaries and bonuses paid to employees who perform work for the defendant that is similar to the type of work allegedly performed by the plaintiff.
The ruling definitively penetrates the legal immunities that have largely protected intergovernmental organizations in the United States from external scrutiny of their contracting practices for decades.
The following piece is a guest editorial by Gary J. Aguirre, former SEC Senior Counsel and client of GAP attorneys, who presently heads a law practice focused on financial litigation that includes whistleblower representation.
Whistleblowers who receive an award from the Securities and Exchange Commission (SEC) or Commodity Futures Trading Commission (CFTC) for disclosing violations of securities or commodities laws are subject to uniquely unfair tax liability. They pay income tax on their entire award, including the portion paid to their attorney under a contingent fee agreement. This is in addition to the income tax their attorneys pay on the same fee.
An example best illustrates the point: Assume a whistleblower receives a $500,000 award from the SEC pursuant to the Dodd-Frank Act. The net award is about $350,000 after the whistleblower pays his attorney $150,000 pursuant to a contingent fee agreement. One might expect the whistleblower to be taxed on the net amount: $350,000. Wrong, the whistleblower would be taxed on the entire amount of the award ($500,000), since taxes would likely be computed using the federal Alternative Minimum Tax (AMT) of 28%, which would include the $150,000 of attorney’s fees. It gets worse when the state, e.g., New York, has its own AMT. In this scenario, the unhappy whistleblower could easily net only one-third of his $500,000 award: $166,000.
This problem originates with Commissioner v. Banks, 543 U.S. 426 (2005), where the Supreme Court held the plaintiff’s entire recovery of economic damages in a civil rights case was taxable income, including the portion paid to the plaintiff’s attorney under a contingent fee agreement. Although the amount paid as attorney’s fees may be claimed as an itemized deduction (Campbell v. Commissioner, 134 T.C. 20 (2010)), it is still subject to the AMT (28%) and to the 2% floor on miscellaneous deductions. Banks had disastrous effects for the False Claims Act (FCA) whistleblower in Campbell. In addition to holding that the attorney’s fees were taxable to the whistleblower, the tax court tacked on a 20% penalty for trying to circumvent the law. After the events in Campbell, but prior to the decision, Congress enacted an above-the-line exclusion for attorney’s fees for FCA whistleblowers (26 USC § 62(a)(20)), but the Campbell Court declined to apply that statute retroactively.
In October 2004, the Civil Rights Tax Relief Act eliminated double taxation in whistleblower reprisal cases, discrimination cases and other employment-related cases. The statute permits an above-the-line exclusion of attorney’s fees, meaning the fees are not taxable to the plaintiff. Accordingly, whistleblowers in reprisal cases – including reprisal cases under the DFA – only pay taxes on their net recovery. Likewise, a FCA whistleblower only pays taxes on his net recovery (26 USC § 62(a)(20)). The same is true for a whistleblower who receives an award from the IRS (26 USC § 62(a)(20)). However, since no statutory exclusion applies to the attorney’s fees paid by a whistleblower who obtains an award from the SEC or CFTC under Dodd-Frank, he must go the itemized deduction route, which means the 2% floor and the 28% AMT.
There is no apparent reason for taxing the attorneys’ fees paid by whistleblowers under Dodd-Frank while excluding such fees from gross income for whistleblowers who obtained an award under the FCA or the IRS’s whistleblower program, the model used by Dodd-Frank. Maybe it is time to ask Congress to remedy this injustice.
Gary J. Aguirre is a former SEC Senior Counsel and client of GAP attorneys, who presently heads a law practice focused on financial litigation that includes whistleblower representation.
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Politico: Bradley Manning, Media Score Court Martial Wins
Returning to court yesterday, military whistleblower Bradley Manning won a possibly significant ruling after the judge stated that the prosecution will have to prove that Manning acted with the knowledge that his whistleblowing could put US national security at risk. This is significant as the prosecution aims to convict Manning of ‘aiding the enemy,’ using as primary evidence digital copies of documents given by the soldier to WikiLeaks that were found inside Osama bin Laden’s compound. The requirement to prove intent will make the prosecution’s job considerably more difficult, as Manning has given testimony stating his intent was not to bring such harm.
In other trial news, the prosecution is expected to call as a witness one of the Navy SEALs that participated in the Abbottabad, Pakistan raid that resulted in the death of bin Laden.
Manning’s ongoing trial is sending a terrifying message to future civilian and military whistleblowers. As this editorial makes clear, in one of his most exemplary acts of whistleblowing – for which he faces life in prison – Manning informed Reuters how two of their journalists died. The continued prosecution of this type of truth-telling is dangerous and does nothing to protect the future of US national security.
President's Budget Reflects Proposed Implementation of Flawed Poultry Rule
Yesterday, President Obama released a proposed FY2014 budget for the Department of Agriculture that indicated savings from the agency's poultry inspection plan – a troubling development that USDA whistleblowers have come out against. GAP's Food Integrity Campaign, which has worked to prevent the plan's implementation, explains.
In Budget Debate, Congress Should Review ICIJ Exposé
Much has been revealed about the entrenchment of high-profile international figures from both government and major financial institutions in the global offshore banking scheme since the International Consortium of Investigative Journalists' (ICIJ) latest report. GAP Executive and International Director Bea Edwards explains why the revealing documents should be considered by Congress and the White House as they discuss the federal budget.
Al Jazeera: UN Accused of Failing to Protect Whistleblowers
More coverage of the recent press conference in New York City that featured UN whistleblower James Wasserstrom and GAP International Officer Shelley Walden. Wasserstrom blew the whistle on corruption in the UN Mission in Kosovo (UNMIK) and experienced retaliation. The miniscule settlement offered him has left Wasserstrom worse off than he started, sending a negative message to future whistleblowers inside the international organization.
Key Quote: (from GAP International Officer Shelley Walden) Ban Ki–moon said publicly in 2011 that he really supports whistleblowers and that he supports creating a better culture for whistleblowers in the United Nations but unfortunately his words and his actions don’t meet up.