The Washington Post has an article today on how Daniel Carter Jr. was fired for "liking" a page on Facebook. This was not a pornographic, racist, or other prohibited website – it was a Facebook page for a candidate who was challenging his boss.
This is just the tip of the iceberg of workplace free speech rights. I represent a client, State Department whsitleblower Peter Van Buren, who was not only prohibited from using any social media – on his own time, on his personal computer – but the State was actively monitoring anything he did: blog, Tweet, update his status of Facebook, etc.
Both Carter and Van Buren's behavior is protected free speech.
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Carter filed a lawsuit claiming that his First Amendment rights had been violated, which is now before the U.S. Court of Appeals for the 4th Circuit. Both Mr. Carter and Mr. Van Buren's "speech" raise substantial constitutional questions and create the appearance of impermissible retaliation for their criticism – Carter's so tacit that you can't even call it "criticism," and Van Buren's more open – of the head of the sheriff's department and the State Department, respectively.
The Supreme Court has made clear (Pickering v. Bd. or Educ., 1960 and its progeny) that public employees are protected by the First Amendment when they engage in speech about matters of public concern. These rights can be overcome only if the employee's interest in the speech is outweighed by the government's interest in the orderly operation of the public workplace and the efficient delivery of public services by public employees.
The Supreme Court has also held that public employees retain their First Amendment rights when speaking about issues directly related to their employment, as long as they are speaking as private citizens (Garcetti v. Ceballos, 2006). It is clear in both these cases that both Mr. Carter and Mr. Van Buren were "speaking" in their own voice and not on behalf of the local Police Department or the federal State Department.
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The Government Accountability Project praised the U.S. Department of Justice (DOJ) Office of Inspector General (OIG) for today's announcement of a new Whistleblower Ombudsman position. The job will include monitoring of whistleblowing disclosures and retaliation claims, communications with whistleblowers on the status of their cases, and liaison with other whistleblower protection agencies such as the U.S. Office of Special Counsel. GAP has long advocated for the creation of Ombudsman offices at the DOJ and other OIGs, as evidence of a commitment to establishing effective working relationships with whistleblowers. Institutional Ombudsman offices are required by the pending Whistleblower Protection Enhancement Act (WPEA), as well.
Regarding new DOJ OIG Michael Horowitz, GAP Legal Director Tom Devine commented:
"In announcing this new position, Mr. Horowitz is off to a flying start toward earning trust from whistleblowers and their advocates. At GAP, we know that any Ombudsman faces tough tasks but whoever assumes this new position at DOJ will certainly confront challenges. There is a history of mutual distrust between whistleblowers and the DOJ OIG, and OIG staff who have worked closely with whistleblowers in the past faced suspicion and harassment. The relationship between whistleblowers and government investigators inherently is difficult and strained, at best. But a working relationship is indispensable for effective law enforcement, and OIGs can play a major role in preventing retaliation or nipping it in the bud. The Ombudsman post is an institutional commitment to start reaching that potential."
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We here at GAP are big fans of both whistleblower rights and funny things, though, for better or worse, they don't often cross paths. Until now! We were unimaginably delighted when The Daily Show with Jon Stewart aired a segment on whistleblowers last night. GAP National Security & Human Rights Director Jesselyn Radack and NSA whistleblower/GAP client Thomas Drake appeared on The Daily Show to talk to correspondent Jason Jones about how Drake was prosecuted as a spy (under the Espionage Act) for revealing massive waste, fraud and abuse at the agency. Watch the segment below!
Radack, herself a Department of Justice whistleblower before becoming a whistleblower advocate, and Drake talked about his case, highlighting the absurdity of Drake being charged as a spy.
For more on Drake's case and how it eventually backfired on the government, click here. Radack's whistleblowing was the subject of her recent book, Traitor: The Whistleblower and the 'American Taliban', which you can learn more about here.
Hannah Johnson is Communications Associate for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.
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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.
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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.
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In its third editorial about the Espionage Act prosecution against National Security Agency (NSA) whistleblower Thomas Drake, the conservative Washington Post (WaPo) editorial board opines that the Drake case demonstrates how dysfunctional the classification system has become.
Just before the Justice Department's case against Drake collapsed in spectacular fashion days before trial last summer, WaPo ran two editorials critical of the prosecution (here and here).Then, former classification czar under G.W. Bush, J William Leonard, was slated to testify as a defense expert for Drake and called the case the most "deliberate and willful example of government officials improperly classifying a document," he had ever seen.
In the year since the prosecution fell apart, WaPo obtained one of the documents that formed the basis of an Espionage Act charge against Drake, which prompted WaPo to opine again - this time sarcastically - on the flimsy evidence the government used to threaten Drake with spending "the rest of his natural life" behind bars:
A document at the center of the Drake case was a classified e-mail summarizing an agency meeting. The e-mail was titled “What a Wonderful Success.” It is an innocuous, self-congratulatory message to a team for its presentation to the director, Gen. Keith Alexander. Two paragraphs were classified “secret.” Now that the e-mail has been released, everyone can see what was so sensitive. One of the paragraphs included the hush-hush fact — be careful if you finish reading this sentence — that Gen. Alexander left a conference room and greeted people in a lab who had worked to make sure the demonstration was a success.
Last summer, WaPo articulated the chilling effect the Drake case has on potential whistleblowers:
Mr. Drake’s prosecution smacks of overkill and could scare others with legitimate concerns about government programs from coming forward.
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Adding to the leak hysteria in Washington, the Senate Intelligence Committee advanced legislation purportedly to limit "leaks." WaPo reports:
The legislation, which has yet to be considered by the full Senate or House, would require the White House to notify Congress whenever it plans to share classified information with the public and would curb an increasingly common arrangement in which top national security officials take jobs as commentators on cable-television shows.
What Congress completely neglects to address in their apparent frustration that the White House leaks to the press before leaking to Congress, is that whistleblowers who are sources for Congress end up getting burned and monitored by the Executive branch.
If the Senate Intelligence Committee really wanted to stop media leaks and preserve its oversight abilities, it would enact meaningful whistleblower protections so that employees who bring concerns to Congress are adequately protected from retaliation. Such a measure would certainly give Congress more information than a head's up from the White House that the White House is planning to make public information that will no doubt benefit the administration.
UPDATE: For a full summary of the anti-leak measures in the Intelligence Authorization legislation see Steven Aftergood's analysis. Key quote:
And yet there is something incongruous, if not outrageous, about the whole effort by Congress to induce stricter secrecy in the executive branch, which already has every institutional incentive to restrict public disclosure of intelligence information.
National Security Agency (NSA) whistleblower Thomas Drake testified before two congressional committees and brought his concerns massive waste, fraud, abuse, and illegality at NSA to the House and Senate Intelligence Committees, in accordance with the Intelligence Community Whistleblower Protection Act. However, that didn't stop the Obama administration from charging him under the Espionage Act and threatening him with spending the rest of his life behind bars. (The case against Drake collapsed under the weight of the truth last summer).