It is being reported by NPR that Carolyn Lerner has been nominated by President Obama to head the Office of Special Counsel, the federal office charged with investigating whistleblower complaints. A nomination for this crucial position has been needed for some time. GAP released the following statement regarding this development:
“With this choice, the White House completes selection of the strongest team of presidential appointees in history to protect whistleblower rights. Every appointee at the Department of Labor Administrative Review Board for corporate employees, Merit Systems Protection Board for government workers, and now the Special Counsel has a life long record of commitment to transparency and expertise in employment law. President Obama is doing his share to fight fraud, waste and abuse.
“The public is about to find out early if new House Republican leadership is serious as well. This week there is a credibility test of new Republican House leaders before they even take office. Those politicians campaigned on a mantra of fighting fraud, waste and abuse. This week we will find out whether they meant it. The test is whether they will try to block House approval of the Whistleblower Protection Enhancement Act after unanimous Senate approval. Republican campaign speeches will be exposed as hot air, if their first act after the election is to abandon the whistleblower who risk their careers to actually live those values in the belly of the bureaucratic beast.”
As the 111th Congress draws to a close, the heat is on to confirm James Cole as Deputy Attorney General. Despite the last-minute push, Cole still has serious problems that haunt and disqualify him from taking a senior position at the Justice Department.
From 2005 through December 2009, James Cole served as an independent monitor in the Compliance Office of the American International Group (AIG), placed there by the Securities and Exchange Commission (SEC) as part of a deal that allowed AIG to escape prosecution for fraud.
While Americans and their elected representatives are notorious for their short attention spans, it’s worth remembering, in this case, that AIG was the corporation that nearly drove the US economy off a cliff in September 2008. AIG’s Financial Products Division (AIG-FP), based in London, wrote credit default swaps involving staggering amounts of money that had to be covered with a US government bailout in the range of $180 billion.
At yesterday's hearing in the government's retaliatory prosecution of Thomas Drake, a federal judge refused to grant what he generously dubbed an "usual request" from the prosecution to require Mr. Drake's defense team to turn over the names of consulting experts prior to allowing defense experts access to classified information.
If the prosecution had succeeded, it would mean that if the defense decided not to call experts, the prosecution could subpoena them and ask them in front of a jury why they were not testifying for the defense, giving the prosecution an unfair advantage.
The prosecution's utter lack of any valid reason why the prosecuting attorney specifically (as opposed to the government personnel granting the experts' security clearances) needed the defense experts' names confirmed that the attempt to get the names was a blatant -- and now failed -- attempt to use classification rules to gain improper access to the defense strategy.
A Federal District Court-level battle of separation of powers played out at yesterday's public hearing regarding the prosecution's request.
In trying to protect troops and civilians in the Iraq and Afghan wars, Pentagon Science and Technology Advisor Franz Gayl never imagined he would become the target of a war on his home turf. The offense? Gayl refused to turn a blind eye to Quantico’s bureaucracy as it stonewalled the shipment of military equipment that would save the lives of American troops and innocent civilians. Now, after an exhaustive 2.5 year retaliatory investigation into Gayl, his security clearance has been suspended, and he’s been put on indefinite administrative leave without pay. Today the Washington Post ran a compelling piece on the most recent act of reprisal against him.
One of the most serious of Gayl's disclosures related to the bureaucratic delays in sending American troops Mine Resistant Ambush Protected (MRAP) vehicles. Going back to the mid-1990s, the Marine Corps had known that MRAPs offered far greater protection against mines than the Humvees being relied on. Soldiers in MRAPs are at least four times less likely to be injured or killed by an Improvised Explosive Device (IED) blast than soldiers in armored Humvees. Gayl also disclosed that the Pentagon was sitting on the shipment of non-lethal crowd dispersers, which would allow troops to stop, without killing, unruly civilians or suspected terrorists.
Gayl released a report on the human consequences of delaying urgently requested equipment. This led to an IG audit that further substantiated his warnings. Secretary Gates then made rapid MRAP acquisition a top priority, and General David Petraus thanked Gayl for identifying a discrepancy between one of the General’s expressed urgent needs, and inaction by the support establishment. Gayl has been further vindicated by then Senator Biden and ranking member of the Senate Select Intelligence Committee Senator Bond.
So why is it that the nation’s most select intelligence leaders have praised Mr. Gayl for his disclosures, but he remains subjected to unfettered harassment by his superiors?
The Pentagon’s targeted retaliation against Gayl may not have silenced him, but it has sent an unmistakable message to other would-be whistleblowers: Keep Your Mouth Shut. In an interview, Franz captured this intrinsic clashing of priorities “By the very interest of being a civilian bureaucracy, you may have objectives and incentives that are in contradiction to the Uniform Marines in the field. That’s just the psychology of bureaucracy.” Here's the full interview:
For Gayl, it was never about how much it would cost him personally when he blew the whistle. He acted because the protection of troops should not be contingent on a sale. The retaliation against Gayl has never ceased. But when asked it he would blow the whistle again, after all he and his own family have endured, he responds without pause, “Oh absolutely, I’m a Marine - this is my family and I recognize a great danger and a great threat to my family now and in the future...getting beat up over it, well that’s just part of the price.”
In a letter sent to Secretary Gates today, over 30 organizations ranging from National Security Counsels to Veterans for Common Sense to the Liberty Coalition tied our nation’s security with the well-being of Mr. Gayl: “There are few better illustrations than Mr. Gayl’s ordeal that secrecy enforced by repression is a clear and present danger to America’s national security.” The letter concludes by urging his reinstatement.
If the Pentagon is allowed to purge more like Gayl from our country's frontline of defense, our nation’s security and integrity will continue to be unnecessarily compromised.
The report’s title, Complainants did not always Receive Appropriate Investigations under the Whistleblower Protection Program, was an understatement when examined within the context of it’s findings: After a one year review period of over 1,200 cases from 2009-2010, the OIG found that 80% of whistleblower investigations did not meet one or more standards in OSHA’s own Whistleblower Investigations Manual; OSHA only found merit for 2% of retaliation complaints; OSHA issued final rulings without conducting any face to face interviews in nearly half its “investigations”; and only 21% of cases settled prior to a ruling. Out of those, only 3% of employees went back to work and 13% received any financial compensation.
These stats are not surprising given the ad hoc conditions of OSHA investigations. According to the OIG’s findings, investigations are conducted without:
required training for supervisors
written guidance to conduct investigations under new corporate whistleblower statutes, or
subject matter experts available to help investigators with technical issues
Further, the report found that investigators are regularly assigned up to four times their proper caseload, and that timeliness - not quality - is the sole performancestandard to evaluate work on whistleblower cases. This sends a message to employees who try to report abuse that OSHA is more concerned with the quantity of cases it closes rather than the quality of its fact-finding and willingness to decide cases in the merits.
These findings should not be taken lightly by new OSHA Director David Michaels, given the broad public health and safety statutes that his agency has jurisdiction over. OSHA oversees whistleblower laws related to the trucking, nuclear power, pipeline, environmental, rail, consumer product safety, medical care, and financial industries. Nor should these findings come as a surprise; an August report by the Government Accountability Office (GAO) also scrutinized OSHA’s whistleblower protection program.
Shanna Devine is Legislative Coordinator for the Government Accountability Project, the nation's leading whistleblower advocacy organization.
Robert MacLean served as a Federal Air Marshall (FAM) with the Transportation Security Administration. In 2003, MacLean revealed a cost-cutting plan, via text message, to cancel FAM coverage from long distance flights on the eve of a confirmed al-Qaeda suicidal hijacking plan. The plan never went into effect after Congress protested – based solely on his whistleblowing disclosure.
However, MacLean was fired three years later, when the Transportation Security Administration retroactively labeled the information he reported with a “hybrid-secrecy” label – “sensitive security information.” MacLean fought back against the retaliation, but several years later he still awaits a decision on his appeal before the full Merit Systems Protection Board, which now has new members appointed by President Obama.
GAP: How did people try to stop you from divulging the information you had, and what barriers did you face going forward?
MacLean: At the time, even with my eight years of federal law enforcement experience, I had no clue what the U.S. Office of Special Counsel was. And if you asked me what that office was, I probably would have told you that was a special agency in the DOJ that prosecuted people for political corruption. So I had no idea that it was a place that whistleblowers could go outside of their agencies to make disclosures. I pretty much thought you could only go up your chain of command, eventually to the Inspector General (IG). Even making disclosures to Congress for me was illegal, because it’s going outside the executive branch.
The IG was well aware of the ridiculous and absurd policies going on with FAMs, because he flew often and would see Air Marshals being paraded in front of passengers. But he ultimately said that the agency is going to do what it wants, and there’s nothing anybody can really do. He essentially advised me not to go forward, so at that point I just decided to talk to somebody. I chose a reporter from MSNBC because he had been doing a lot of reporting on the Air Marshall Service, and seemed to have a very good background of their retaliatory history and general mismanagement.
GAP: Part of your case involves the discrepancy over whether the information was classified or unclassified. Do you think that classification markings are being abused to retroactively mark information as “sensitive” and retaliate against whistleblowers? What needs to be done to change this?
MacLean: In my case and in the Thomas Drake case without a doubt, it is being abused. The text message that was sent to me did not have any markings or labels. It was sent by unsecured means. Four months after firing me, they had to put together some order that retroactively classified the message with this marking.
What’s really scary is that you hear a lot about top-secret security clearances being revoked…but the executive agency is supposed to jump through a lot of hoops to revoke your clearance. In my case, all they did is send one piece of paper by an agency attorney that designated my disclosure with this unclassified information marking. The only appeal I was afforded was to go to an appellate court in my jurisdiction, and that cost me over two years of waiting and almost $100,000 in legal fees. Yes, there is an appeals process – but you have to appeal to an appellate court, which is very expensive and very time-consuming. Most people won’t even bother.
GAP: What are your thoughts on the attempted 2009 Christmas bombing?
MacLean: It’s pretty ironic that I was fired for letting Congress and the public know that Air Marshals were being taken off long-distance flights when the two attempted bombings (the Richard Lee shoe bomber incident in 2001 and Christmas incident in 2009) were both long haul, U.S. flagged flights to Europe, exactly like those I received warnings about two days before my disclosure. Obviously there is a problem if Marshals are not on these flights that are consistently being attacked.
GAP: What are your thoughts on the status of current air safety?
MacLean: In my opinion, the Obama administration has finally begun to respond by focusing on long-haul flights, whereas the prior administration made Air Marshals fly a bunch of short hop flights in the same day in order to make their numbers look good for Congressional reviews. Under President Obama long-haul flights have rightfully become the primary focus.
GAP: One criticism of the 2009 attempted bombing is that the suspect was not subject to body scans. What do you think of whole body imaging?
MacLean: I think that body imaging could be done correctly. I like the idea but I don’t think it’s a fix-all for the whole problem, and there are privacy issues. You would have to have a male and female officer in a completely separated room, and once the image is viewed and it’s confirmed there is no threat, there should be a way to completely erase it from the system. How long the images should be kept is debatable – but there are ways to erase those images forever so that people’s identities are completely protected. I think non-governmental groups should get together with TSA to make sure that the process does not violate privacy rights.
GAP: Where should Homeland Security be focusing its resources in terms of advancing flight safety?
MacLean: I’m a big believer in behavioral-detection techniques. There’s a big difference between profiling and behavioral detection. Most people who are willing to do the dirty work (e.g. the underwear bomber) are not the brightest people in the galaxy. Other people chose him because he was young and easily manipulated. I believe a good law enforcement officer would have picked out the underwear bomber on this flight because the guy was traveling from Africa to the United States with no bags, had a passport from a foreign country, and had no destination address. At the very least a law enforcement officer should have spoken with him. I would have just simply asked him a few questions and done some secondary screening. When humans lie or they try to cheat somebody, it shows in physical characteristics. I believe it’s a very effective technique. The secret service uses it to protect the President by focusing on that one person that sticks out in the crowd because they’re acting, dressing, or looking different than everyone else. It has nothing to do with skin color or religion – it’s all about behavioral detection.
GAP: How has GAP helped you?
MacLean: GAP has always represented me as the poster boy for what is wrong with the laws right now, and of course GAP has cited my case in Congressional hearings and used it in order to hopefully get an unclassified information provision into a new bill. And of course, [GAP Legal Director] Tom Devine has personally taken my case. After $100,000 in legal fees was blown in my case and my attorneys pretty much disowned me, Tom came in (along with the Federal Law Enforcement Association General Counsel) to save my case, and they’ve been a tremendous help that way.
GAP: Would you blow the whistle again, knowing what you know now? What advice would you give to would-be whistleblowers?
MacLean: At the time, I thought I went through every channel I was supposed to go. And I felt, because the threat was so imminent, that I should use the media as a buffer in order to let Congress know about what was going on. Had I known about the Office of Special Counsel I would have probably gone to them. Had I known GAP existed at the time, maybe I would have gone to GAP. But I consider myself pretty knowledgeable about how the government works, and in all of my years in federal law enforcement I was only ever instructed to call the Inspector General. In the military and in law enforcement there are stickers and signs everywhere that say, “If you have witnessed fraud, waste, or abuse, please call the Inspector General hotline.” And that’s what they orientate you to throughout all of your years.
I have no regrets about what I did. I had an honorable military career. But if somebody came to me right now and wanted to do what I did then, I would caution them that there is a very good chance you’re going to lose your career, your friends and family will suffer, and you will go into a depression. Especially with the way the judiciary system operates with federal whistleblowers. I would definitely warn would-be whistleblowers about what they would be facing.
Today's Washington Post has a piece examining the potential mental health problems of Bradley Manning, the Army private accused of leaking the "Collateral Murder" video to Wikileaks.
Whatever the reality of Mr. Manning's mental health, or any whistleblower, it should not diminish the validity of the disclosures. Our country has studiously avoided having any meaningful conversation about why the soldiers in a U.S. Army Apache helicopter gunned down unarmed Iraquis, including children, while high-fiving each other as if they were playing "Call of Duty." Or, why the Army found no wrongdoing in this incident and tried to bury it. Manning's mental health gives us no insight there.
With the Obama administration cracking down on whistleblowers more than any past President, we must remember a whistleblowers' mental health does not reduce the significance of their disclosures.
I've chronicled the Obama administration's campaign against whistleblowers on Kos, including the latest prosecution of Stephen Jin-Woo Kim and:
I've been blogging here, to mixed reception, about the alarming increase of "leak" investigations and prosecutions under President Obama.
Yesterday, the L.A. Times had a lead editorial on "The Obama Administration's Attacks on the Media."
[T]his administration has pursued a quiet but malicious campaign against the news media and their sources, more aggressively attacking those who ferret out confidential information than even the George W. Bush administration did.
It specifically mentions the cases of James Risen, one of the New York Times reporters who broke the warrantless wiretapping story, and Thomas Drake, a former NSA official indicted for supposedly leaking details of NSA secret surveillance programs to the Baltimore Sun.
Risen and Drake are bookends of a disturbing trend of the "Transparency President": keeping information from the public.
The indictment of Tom Drake under the Espionage Act weaves a sordid tale of intrigue about how Drake committed dastardly deeds by leaking classified information to a Baltimore Sun reporter. But Drake never gave classified information to a reporter. Upon a close read of the indictment, he is not charged with "leaking" (there is no such crime) anything at all. Rather, he is charged with retention of classified documents for the purposes of distribution (there is no such crime).
The L.A. Times nails what this is prosecution is really about:
The [Baltimore Sun] reported extensively on technical problems with an NSA program that Drake was involved with; that reporting embarrassed the government, which indicted the individual it says brought about that embarrassment. That smacks of retaliation, not legitimate protection of sensitive information.
Tom Drake is a whistleblower we would have applauded during the Bush years, but now he is facing 35 years in jail.
In news regarding automaker Toyota’s continuing problems with “unintended acceleration” – a sudden increase in speed that may be linked to several accidents and deaths since 2001 – preliminary findings from federal officials seem to support the company’s claims that problems lie not in faulty electronics, but rather in other issues such as sticking pedals, floor mat entrapment, and driver error.
Government regulators are investigating this issue using data collected from Toyota’s ‘black box’ recorders – devices installed in vehicles that record data such as velocity and acceleration. Of course, keep in mind that federal regulators are reviewing the accuracy of Toyota’s electronic system with an electronic device made by… Toyota? On this note, a handful of safety consultants are asking similar questions, such as: Is the black box device a scientifically validated instrument?
Details Questionable Roles of Liz Cheney, Shaha Riza, and Others in Multi-Million Dollar Program
(Washington, D.C.) – A report released by the Government Accountability Project (GAP), based on documents obtained through nearly three years’ of U.S. Freedom of Information Act (FOIA) requests, exposes the highly irregular manner in which the Foundation for the Future (FFF) – an obscure project funded by the U.S. Department of State – was established and operated by Bush administration officials and appointees.
Specifically, the report details how high-level State Department officials misled Congress as they sought millions in public money for the Foundation, which was a haven for people with political connections. The report also shows that FFF was a pet project of Elizabeth Cheney, former Principal Deputy Assistant Secretary of State for Near Eastern Affairs. Cheney worked to set up the Foundation with Shaha Riza, Paul Wolfowitz’s companion whose seconding to the State Department (and then to the FFF) was directly responsible for the 2007 World Bank scandal that resulted in Wolfowitz’s departure from the Bank.
“Liz Cheney had the preposterous idea that the Foundation for the Future would bring peace and democracy to the Middle East,” said GAP International Program Officer Shelley Walden, author of the report. “This overlong project wasted millions of taxpayer dollars.”
The Foundation for the Future first became an issue of public interest inquiry in 2007, when GAP published the payroll records of Riza, girlfriend of then-World Bank President Paul Wolfowitz. The records showed that Riza, a British national who worked as a World Bank communications officer, was seconded to the U.S. State Department after Wolfowitz was appointed, where she was responsible for establishing the Foundation for the Future (FFF). The FFF was a nonprofit organization tasked with promoting democracy and reform in the Broader Middle East and North Africa (BMENA) region.
While seconded from the Bank to the State Department in 2005 and 2006, Riza received salary raises in excess of what Bank rules allowed, earning far more than Secretary of State Condoleezza Rice. In October 2006, Riza’s secondment was transferred to the FFF itself, where she remained until returning to the Bank in early 2008, after Wolfowitz was forced to resign.
Liz Cheney’s Failed Pet Project
The documents released by the Department of State (DOS) show that Liz Cheney, as Principal Deputy Assistant Secretary of State for Near Eastern Affairs, envisioned Riza’s highly irregular secondment to the FFF in May 2005, well before it was established, andbefore Paul Wolfowitz became President of the Bank. In this unsupervised position, Riza promoted an overtly political U.S. agenda in the Middle East. Riza’s activities in this role were in apparent violation of conflict of interest regulations at the World Bank, as well as the national security, tax and visa regulations of the U.S. government. The report also shows that Cheney was instrumental in the Foundation’s launch and failure to obtain broad international support.
“The project was doomed from the start – State Department officials in the region warned that restrictive laws in the Persian Gulf states would make the Foundation ineffective; BMENA governments did not support a Foundation that would give their opposition a platform from which to oppose them; and potential donors had misgivings about the project’s lack of indigenous imprint,” stated Walden. “Despite these warning signs, Cheney and the Bush administration moved full steam ahead and established the Foundation anyway.”
In 2005, Cheney, Shaha Riza and Condoleezza Rice embarked on an international crusade to obtain financial and diplomatic support for FFF. But their efforts at diplomacy were a failure; they raised less than 25% of the goal (set by Cheney) of $25 million (USD) in contributions from other nations. The great majority of funding came from the United States, although the legislation creating the institution included a requirement for matching funding.
“The Foundation for the Future was to promote democracy, transparency and popular political participation on a multilateral basis in the Middle East,” said GAP International Program Director Bea Edwards. “So when Liz Cheney – who, in the view of many Middle Eastern leaders, occupied her position largely because she was the Vice President’s daughter – asked other nations for contributions, they balked. Add to this the fact that the Foundation’s board member selection process was directed by the former Deputy Secretary of Defense’s girlfriend and that the Foundation was managed by a personal friend of Wolfowitz’s with little expertise in the region, and it’s no wonder that many potential donors refused to fund it.”
GAP’s report shows that the FFF was almost entirely financed and monitored by the U.S. government, even though the Bush administration repeatedly portrayed it to Congress as a multilateral, non-governmental organization created in response to democratic demands from grassroots organizations. Documents also show that the Bush administration intended to use the Foundation as a vehicle through which to demonstrate its purported commitment to democratic processes and human rights abroad, at a time when President Bush was subjected to increasing criticism for human rights violations in Iraq, Afghanistan, “black sites” around the world and Guantánamo Bay.
Dubious Lobbying and Funding Efforts
From 2005-2007, officials at the State Department executed a number of questionable legislative maneuvers in the US Congress that were favorable to the FFF. In the end, the Bush-Cheney administration successfully obtained the passage of three laws related to the Foundation and a disbursement of $21.3 million in public funds. They also secured $921,064 for the Eurasia Foundation – a non-profit organization set up by the State Department in the 1990s to promote democracy in the former Soviet Union – to help establish the FFF.
It appears that in order to obtain the disbursement to the FFF, State Department officials deliberately misled the US Congress about the funding pledged to the Foundation by other governments. Evidence strongly suggests that section 534(k) of US Public Law 109-102, which at that time stipulated that funds could only be made available to the Foundation to the extent that they had been matched by contributions from other governments, was violated; the Foundation’s own reports show that less than $6.4 million of the $22.26 million in “matching funds” listed by the State Department in its communications with Congress as pledged ever materialized.
Especially suspicious was the State Department’s representation of a murky $10 million pledge from Qatar, the largest “pledge” of any country other than the United States. Documents indicate that the State Department knew that this pledge would never materialize when it asked Congress to disburse matching funds.
GAP’s report also suggests that FFF management – including former FFF Chairman (and close friend of Paul Wolfowitz) Anwar Ibrahim, who is currently a Malaysian parliamentarian – misled the US Internal Revenue Service. The FFF’s financial statements for 2006 and 2007 state that the Foundation did not attempt to influence national legislation, an assertion contradicted by the cables and reports released by the Department of State. These documents suggest that several Foundation representatives actively lobbied the US Congress in 2006-07 for legislative changes favorable to the FFF.
State Department documents show generous travel allowances and salaries for the office of Shaha Riza, whose nebulous duties did not seem to require such lavish financial support. Riza was paid a net salary of $180,000 to perform such tasks as reviewing a translated draft of the FFF bylaws, a PowerPoint presentation of a business plan and a translated policies and procedures manual.
The Foundation for the Future continues to operate, although the departure of both Cheneys from public office appears to have weakened its financial support from Congress. Because the vast majority of its funding comes from the U.S. government, budgetary figures indicate that the FFF will be unsustainable after 2014.
Dylan Blaylock is Communications Director for the Government Accountability Project, the nation's leading whistleblower advocacy organization.