Tag Archives: Whistleblowers

2011 “Insider Threat Program” in Jeopardy Under Justice Deparment Whistle Blower Investigations?

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Sott dot Net Whistleblower

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“THE PROJECT ON GOVERNMENT OVERSIGHT”

“It is important to note that when information is not classified or otherwise specifically barred by statute from disclosure, most federal employees are protected for disclosing wrongdoing to the media. [under the Insider Threat Program in place since 2011].

POGO has worked for decades to ensure that whistleblowers are afforded strong protections when reporting through proper channels and urge the White House and the Department of Justice (DOJ) to conduct these investigations with a firm commitment to not target, discourage, or detect legally protected whistleblowing in the process. This commitment is written into the Executive Order creating the Insider Threat Program, and must be adhered to. It is also important to note, that when information is not classified or otherwise specifically barred by statute from disclosure, most federal employees are protected for disclosing wrongdoing to the media.

POGO’s Danielle Brian issued the comment below:

“Whistleblowers are the nation’s first line of defense against fraud, waste, abuse, and illegality within the federal government, the last thing this administration wants to do is to deter whistleblowing in an effort to stymie leaks. This administration must carefully tailor the parameters for this investigation with this important consideration in mind. While I appreciate the distinction between whistleblowers and leakers at today’s press conference, the commitment to strong whistleblower protections must be more than just lip service.

In the public discourse, the lines regularly become blurred between leaking and whistleblowing. While not all leaks are whistleblowing disclosures, it is often impossible to distinguish between the two activities without understanding all the facts in each instance. It is especially difficult when discussing ‘leaks’ of unclassified information.

Whistleblowers will be allies to this administration if the White House embraces them and their disclosures, which often are an early warning system that can spotlight problems before they metastasize. Such disclosure help save taxpayer dollars, prevent loss of life, and curb abuses. Overzealous investigations will chill legitimate whistleblowing and drive whistleblowers away from proper government channels to the press. ”

Founded in 1981, the Project On Government Oversight (POGO) is a nonpartisan independent watchdog that champions good government reforms. POGO’s investigations into corruption, misconduct, and conflicts of interest achieve a more effective, accountable, open, and ethical federal government.”

http://www.pogo.org/about/press-room/releases/2017/press-statement-doj-press-conference-to-address-leaks-of-classified-material.html

 

 

Whistleblower Hotlines: A Valuable Tool

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“NATIONAL DEFENSE MAGAZINE’

“An effective ethics reporting tool, implemented as part of an ethics and compliance program, can help an organization detect and resolve potential misconduct issues.

It can also help support a culture of integrity and responsibility within the workplace.

Misconduct in the workplace can be devastating. The Association of Certified Fraud Examiners’ “2016 Report to the Nations” estimates that, on average, organizations lose 5 percent of revenue per year due to fraud and other misconduct.

Many organizations have implemented active and deliberate misconduct-detection processes. “Active” means that a person, or an internal control method, has been put in place and is instrumental in looking for fraud and other misconduct. Compare that to “passive” detection, in which the organization learns of unethical activity only after the fact or by accident.

How does an ethics reporting tool, such as a whistleblower hotline, fit in? It could be labeled a “passive” tool because fraud or other misconduct is often reported after it has happened. However, an ethics reporting tool can help to shed light earlier on misconduct that might otherwise continue for any length of time and cause more damage.

Knowing about misconduct sooner enables an organization to put a stop to it earlier. According to the report, the median duration of fraud prior to detection is about 18 months. For smaller organizations, early detection could mean the difference between surviving or going out of business.

A whistleblower hotline doesn’t just help bring fraud to the forefront. Other types of misconduct commonly reported using these systems are harassment, discrimination, workplace health and safety violations, alcohol/drug abuse, violence in the workplace, and conflicts of interest — to name a few.

Once an ethics program has been implemented, it needs to engage every employee, from the top down. It can’t just exist as window dressing.

Senior management needs to be committed to the ethics program and sincere about sharing their commitment with employees. Employees learn acceptable workplace behavior by taking cues from leadership. If management doesn’t believe in the ethics program and model leading with integrity themselves, employees are not likely to use the reporting tool to report any unethical conduct.

Employees may also be skeptical about coming forward to report perceived misconduct. Many people are concerned that even if they do make a report, no corrective action will be taken. But the biggest fear for employees is retaliation by co-workers and management. Ethics program best practices, as well as regulatory standards, call for ethics hotlines to ensure confidentiality for employees who report concerns and offer the option for anonymity.

External third-party ethics hotlines, which often include a case management database, can help. Third-party programs provide the ability for management and the reporter to communicate with each other about the allegation securely, within the system, enabling management to gather more information while protecting the whistleblower’s identity. This ensures a more thorough investigation of the alleged misconduct, getting to the bottom of any serious issues sooner, before they escalate.

Customizable third-party whistleblowing systems allow companies to create a program that is best suited to meet the needs of their organization, regardless of industry. They log and date stamp every report and allow management of each case to closure.

The ability to include a company’s national or global locations as part of the reporting process enables all incidents to be funneled into the one system in an organized manner.

Every industry has its own unique risk concerns and customizable third-party systems help management spot and track issues and trends, no matter the location, the department or the issue.

If they are not comfortable talking with their supervisor, a whistleblower wants to know where they can go to report ethical concerns and remain anonymous. An anonymous hotline removes many of the obstacles to reporting inappropriate behavior and gives employees, suppliers and vendors the ability to raise genuine concerns about illegal or unethical behavior.

Ethics hotlines also reduce the risk of individuals going outside the organization with their concerns, potentially damaging an organization’s reputation and causing further financial harm.

Every employee wants to know that his or her voice matters in the organization. That’s why encouraging a speak-up culture is important. Employees want to know they are part of the success of the company. Encouraging them to speak up about wrongdoing and showing them that their concerns do matter and are taken seriously creates more motivated employees who truly want to participate in the company’s future.

Many companies believe they are too small to warrant an ethics reporting system. There’s a belief that there’s too much complexity and work involved. But putting in extra upfront effort to set up a customizable program that is right for the company is well worth it when the result is more open communication, happier employees, reduced risk, and future growth and success.

When an organization implements a confidential and anonymous third-party ethics hotline, it lets employees and stakeholders know that it is serious about adherence to its code of conduct, it takes all reports of misconduct seriously, and it does not tolerate retaliation towards anybody reporting perceived misconduct.

If company leaders truly want to promote a speak-up culture, and give employees a safe place to come forward to report ethics and compliance concerns, then one of the best ways is to provide employees security and comfort of anonymity and confidentiality via a whistleblower hotline.”

http://www.nationaldefensemagazine.org/articles/2017/7/17/whistleblower-hotlines-a-valuable-tool

Survivor’s Guide to Being a Successful Whistleblower

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“THE PROJECT ON GOVERNMENT OVERSIGHT” by Nick Schwellenbach

“Whistleblowers do a difficult thing.  However, the decision to blow the whistle can be immensely patriotic.

They often put their career and livelihood at risk standing up against their organization and disclosing information that may embarrass their colleagues and supervisors. It could save lives, defend our constitutional rights against government overreach, and help preserve our democracy.

But how do you blow the whistle and avoid retaliation? And if you end up facing reprisal from management, how do you maximize your chances of surviving professionally? This article aims to provide some general guidelines and practical considerations for federal employees who may ever consider making a disclosure of wrongdoing.

I recently left a government office that reviewed whistleblower disclosures and investigated complaints of retaliation, the U.S. Office of Special Counsel (OSC). My current organization, the Project on Government Oversight (POGO), was founded by Pentagon insiders concerned about the Department’s procurement of ineffective and overpriced weapons. Throughout POGO’s history we have served as a resource to federal whistleblowers and promoted improvements to better protect military, civilian, intelligence, and contractor whistleblowers. Employees at many agencies are concerned about this administration. Many people are reaching out to POGO for the first time to learn about how to safely and meaningfully disclose wrongdoing. This article is an on-ramp for understanding whistleblower protections and some of the practical risks many face in trying to do what is right.

A couple issues upfront: This article is geared toward most federal civilian employees in the executive branch under the framework of statutory whistleblower protections. However, the considerations discussed below generally apply to other types of employees too. And while there are similarities in legal protections and how whistleblower reprisal investigations work in the FBIintelligence communitycontractor, and military contexts, there are significant differences as well (including the fact that intelligence contractors do not have protections). Anyone thinking about blowing the whistle should strongly consider talking to experts at POGO, the Government Accountability Project, or Public Employees for Environmental Responsibility.

The following is not legal advice—for that, seek the services of an attorney with relevant experience who can speak to your specific circumstances. For those seeking very in-depth legal information, please see Special Counsel Carolyn Lerner and Jason Zuckerman’s paper, “The U.S. Office of Special Counsel’s Role in Protecting Whistleblowers and Serving as a Safe Channel for Government Employees to Disclose Wrongdoing.” It extensively details the prohibition on whistleblower retaliation in the federal workforce, which is the eighth “prohibited personnel practice” under the relevant federal statute. 5 U.S.C. § 2302(b)(8). Let’s turn to the fundamentals and practical concerns.

Whistleblower Reprisal Investigations – 101

First—What’s a protected whistleblower disclosure under the law? For federal employees, you are protected for disclosures where you have a reasonable belief of:

  • A violation of law, rule, or regulation (this includes the Constitution);
  • Gross mismanagement;
  • Gross waste of funds;
  • Abuse of authority;
  • Substantial and specific danger to public health and safety; or
  • Censorship related to scientific integrity that evidences one of the above categories.

Major caution: Policy disagreements themselves are not protected disclosures under whistleblower law, unless the employee reasonably believes that an executive branch policy creates one of the problems in the bullet points above (e.g. a disclosure about an Interior Department policy that will lead to $200 million in waste).

A whistleblower doesn’t have to be correct to be protected, but they do need to have a reasonable belief in what they’re disclosing. This is a relatively low legal bar. But, in practice, the more proof they can offer, the better. Documents trump verbal assertions, especially official documents. First-hand accounts made soon after an event are better than second-hand rumors long after the event occurred.

Thanks to the Whistleblower Protection Enhancement Act (WPEA) of 2012, whistleblowers are also protected now if they make lawful disclosures to their co-workers and supervisors even if they are implicated in the wrongdoing. This is particularly significant since most employees raise concerns internally first. The WPEA also clarified that federal employees don’t have to be the first to make a disclosure to receive protections, that their motive does not matter, and that the protections they receive can include disclosures made in the normal course of their job duties.

Some employees who would not have received protection before the WPEA now can. An OSC official recently testified before Congress that:

…a whistleblower in the Department of Treasury filed a complaint with OSC because of alleged retaliation he suffered after he reported to his supervisor that the supervisor had allowed improper expenses to be incurred by the agency. Prior to the WPEA, his disclosure would not have been deemed protected because it was made to a supervisor involved in the alleged wrongdoing. After the WPEA, however, OSC is able to pursue this case and has an active, ongoing investigation into the claim.

Most federal employees don’t set out to become whistleblowers or want to be known as one, they just want their serious concerns to be resolved internally. It’s important to emphasize that they’re protected under the law too, even if their situation doesn’t fit what we normally view as whistleblowing.

What’s the relationship between disclosure and reprisal?

The disclosure is the underlying wrongdoing on which an employee blew the whistle (such as the agency wasted millions of dollars) and reprisal is the personnel actions taken against that employee for blowing the whistle (such as the employee got fired by the agency after he disclosed that millions of dollars were wasted). Some individuals make disclosures and don’t face whistleblower reprisal. An employee can’t face whistleblower retaliation if they didn’t make a disclosure (the rare exceptions are perceived whistleblower cases when management wrongly suspects someone is a whistleblower—these non-whistleblowers can get protections too). For context, in the last major official study on the topic in 2010, about one-third of federal employees said they faced retaliation, to one degree or another, after being identified as making a disclosure.

Many entities can receive disclosures, but the main place for federal employees to seek relief if they are retaliated against is OSC. If the retaliation involves severe personnel actions such as suspensions of 14 or more days, demotions, or termination, employees can go directly to the Merit Systems Protection Board (MSPB), which is a quasi-court in the executive branch for handling certain employment disputes. When an employee faces lesser employment actions—such as reprimands, suspensions shorter than 14 days, or a change of job duties—they must first go to OSC before having a right to appeal to MSPB. OSC will evaluate the complaint and, if OSC finds there is a basis to the retaliation claim, OSC will investigate or mediate the case. Individuals with retaliation complaints who go to OSC first can appeal with MSPB if OSC closes their case or after OSC has it for 120 days.

My personal view is, even with severe personnel actions, it may be worth it to go to OSC first since they may be able to facilitate a favorable outcome. Retaliation cases often contain a lot of gray area where negotiated settlements are the best way to resolve a case. If OSC’s process doesn’t yield a good outcome for the employee, they can appeal to the MSPB for a new review. However, it does not work the other way around. OSC does not generally review complaints if MSPB has already decided on the issue, since MSPB is OSC’s court of appeal.

It is worth consulting with a qualified attorney in order to file an effective retaliation complaint. In addition to OSC and MSPB, employees can also seek relief through a union’s grievance process. But it’s important to note that there are election of remedies issues in certain cases, meaning employees have to choose one venue—OSC, MSPB, or union process—to hear their concerns.

While MSPB and OSC are the executive branch agencies officially empowered to investigate and seek relief for federal employees, congressional offices often play a less official but powerful role in attempting to shield whistleblowers. For instance, Franz Gayl, a Marine Corps civilian scientist who blew the whistle on the lack of armored vehicles in Iraq, obtained relief by working with OSC, a number of Senate offices such as that of then-Senators Joe Biden (D-DE) and Kit Bond (R-MO), as well as GAP and POGO. Senator Charles Grassley (R-IA), chairman of the Senate Judiciary Committee, has been a champion of whistleblowers for decades, and with two House Republicans he recently emphasized in a letter to President Trump the importance of whistleblowers. Congressional assistance is most powerful for whistleblowers when it is bipartisan.

What does a reprisal investigation look for?

An investigation seeks to answer four basic questions:

  • Did the person make a protected whistleblower disclosure?
  • Did they suffer from or were threatened with an adverse personnel action?
  • Did management know or suspect the person was the whistleblower?
  • Was there a legitimate, non-retaliatory reason for the adverse personnel action?

Many retaliation investigations hinge on that last question. Some factors that may have to be examined are: Did management care about performance or conduct issues only after disclosures were made? If so, that may indicate retaliatory motive. How were other employees with the same performance or misconduct issues treated? If our whistleblower is facing harsher punishment than others with similar job performance problems, that could indicate retaliation. It is helpful for the whistleblower to be aware of these comparisons in documenting and building their case.

Considerations

With the above established, what should an ethical federal employee consider when deciding whether to blow the whistle?

Talk to Your Partner

Would-be whistleblowers should discuss with their spouse or anyone else that might be drastically impacted by the professional consequences of whistleblowing. Move forward with eyes wide open, together.

Anonymity

The classic and often best method for protecting oneself is to stay anonymous as the source of a disclosure that may anger one’s management. This can be easier said than done.

The traceability of digital communications have created liabilities for employees wishing to stay anonymous. In response, a number of tools have been created that make it harder to establish the digital fingerprints on information communicated electronically. Right now, there are questions being raised about whether government employees communicating with these tools on official time or involving official business might violate federal records laws. The safest course for any employee may be to communicate on private time with a private device using one of these secure tools.

Low-tech means of making disclosures should also be considered and often are preferable. In-person meetings, mailing documents, slipping envelopes under doors. Sometimes the old ways are still the best. They may seem time-consuming, but they could prevent larger (and even more time-consuming!) problems.

Then there’s the issue of who knew the information that was disclosed. If the information is widely known within an agency, it might be virtually impossible for management to identify the source. If very few had access, those seeking out the source are more likely to be successful. There are some ways around this challenge. Providing a congressional office or a reporter with enough information to ask the right questions or make document requests might be possibilities to strongly consider. This is often the safest route for insiders since it does not involve actually passing along any documents, including potentially sensitive information.

The anonymous route can make follow-up difficult with whoever receives the disclosure. Reporters, IG investigators, and congressional offices may want to know who the source is to assess the disclosure’s credibility and to ask questions. While there are situations where one-time anonymous disclosures lead to changes, they typically do not. Figuring out how to communicate while preserving your anonymity can be key to making an impact.

Another potential downside is that if a whistleblower is later retaliated against and they can’t show that the person who retaliated against them knew they blew the whistle it poses a challenge to their retaliation complaint.

For more, please review “The Art of Anonymous Activism,” by PEER, GAP, and POGO. The book’s discussion of the federal whistleblower laws is now out of date, but the rest of the book generally is on point.

When Being Public Might Make Sense

Sometimes the negative publicity that can stem from retaliating against a whistleblower can give an agency pause. The choice to go public can make sense when management knows who the whistleblower is even if they attempted to stay anonymous. But managers have long memories and when the story fades from the headlines, the press might not be paying attention when management decides to finally take action.

Pros and Cons of the Press

The press often pays more attention when there’s a person at the center of their story since it helps create a narrative. At times this can lead to better coverage and, in certain circumstances, help protect a whistleblower. But sometimes the story becomes more about a person rather than the issue that they raised. This can also backfire if an agency leaks information that impugns a whistleblower’s motive. It’s possible that skeletons in your closet could come out. It may be that individuals with motive to retaliate may make what you might have done in the past appear worse than it was. And going public may raise the ire of managers even more.

Deciding on whether to get involved in a public relations battle is a major decision. I’ve been involved in a number of cases where it has been critical to a whistleblower’s professional survival, including their legal strategy, but it isn’t without risk.

It’s important that whistleblowers understand most journalists are not advocates. Some consider actively protecting their source to be beyond their role as objective journalists (you may want to find out which do and which don’t). Many simply move on to the next story and are no longer interested or available when the hammer falls.

Whom to Disclose To

With some important exceptions (please read below for more), the federal whistleblower protection laws allow employees to make protected disclosures to a wide variety of entities, including the press and the public. Inspectors General (IGs), Congress, the Office of Special Counsel, agency leadership, supervisors, and coworkers can receive disclosures. When deciding on where to go, it’s worth considering the substance of the disclosure and what entity is best suited to take appropriate action. Look for offices or reporters that may have conducted previous quality investigations on similar issues. Research their reputation for working with whistleblowers.

Before making a formal disclosure, consider summarizing the essence of the problem in writing in plain English–on one page. Better yet, one paragraph. While there may be a whole story behind the wrongdoing being exposed, get to the point as early as possible. This exercise will help anyone blowing the whistle communicate their concerns succinctly.

Congress and the press can be important allies even when a whistleblower also discloses to an IG or within their agency. With numerous Department of Veterans Affairs whistleblowers, in the Jason Amerine case, and with many other employees, congressional pressure and media coverage were key to protecting whistleblowers and prompting improved investigations of their disclosures.

Be Careful What Information You Disclose to the Press and the Public

Generally, federal employees are protected for making the types of disclosures described above. But the law carves out exceptions for classified information or information “specifically prohibited by law” from public disclosure. For example, this latter provision covers sensitive medical information protected under the Health Insurance Portability and Accountability Act (HIPAA) and tax return information protected under the Internal Revenue Service’s statute. Whistleblowers who disclose these types of information are not protected. Indeed, one can easily be fired for disclosing information prohibited by statute from public disclosure. There are some categories of information created by agency rules and regulations that can still be legally disclosed to the press or the public. In January 2015, the Supreme Court ruled in favor of an air marshal who disclosed “Sensitive Security Information,” a category of data created by a Transportation Security Administration regulation. The Supreme Court ruled that Congress did not intend to give agencies a unilateral means of defanging whistleblower protections. But there is enough nuance in the Court’s decision to warrant serious caution since some information categories created by agency regulations may have sufficient basis in statute and thus are excluded from whistleblower protection.

However, Offices of Inspectors General, Congress, and the Office of Special Counsel all can receive sensitive information that cannot legally be disclosed to the press. The whistleblowers who disclose to these channels simply cannot be punished for those disclosures.

Whistleblowing Is Not a Blank Check for Misconduct or Poor Performance

For those identified or even suspected as being a whistleblower, they will come under scrutiny from management and co-workers. It’s a human reaction and many well-meaning people become upset when concerns are taken outside of the chain of command, especially when they’re made public.

While overzealous management with animus can likely find a problem with almost any employee, we advise whistleblowers not to hand them ammo. If you blow the whistle, try to do your job the best you can.

That can be hard to do if management and co-workers socially isolate you and make it hard to do your job. But it’s important to try to be as professional as possible despite the hostility that you might confront. In fact, the pressure that may lead to losing your cool and/or not doing your job effectively could be used as justification for discipline. Hostile work environment claims are difficult to establish, especially if there are no official personnel actions that accompany the hostility. But if it can be shown that the hostility was bad enough to interfere with your ability to do your job despite your best efforts, it may be possible to make a viable claim.

Get An Attorney That Works for You

Agency attorneys ultimately work for their client, which they see as their agency and their leadership. Don’t count on them if you think you’re going to be at odds with management. Indeed, be wary. They don’t have an attorney-client relationship with you and they are conflicted if such a situation develops. At the end of the day, they know who the boss is.

When looking for a private attorney, find one that has previous experience working on federal employment law. POGO provides a list of attorneys.

Don’t Lie—Ever

When dealing with investigators, congressional staffers, reporters, your own attorney, your management, don’t lie to any of them, especially if you work in a national security context. If you lie to management or to investigators, it’s easily a basis for losing your security clearance—if the government can’t trust you, why should you be allowed to see secrets? For many positions, the loss of a clearance is the kiss of professional death. Neither the Office of Special Counsel nor the Merit Systems Protection Board can investigate security clearance determinations due to a Supreme Court decision, Navy v. Egan (484 U.S. 518 (1988)). That said, there are administrative ways to have security clearance decisions reviewed separate from the context of a whistleblower reprisal investigation.

Lying to investigators can result in criminal charges too.

If you lie to reporters or congressional staffers, your credibility will dry up quickly with these potential allies. If you lie to your own attorney, you may cripple their ability to defend you.

Taking Care of What’s Important

The stress of blowing the whistle can be overwhelming and can take a toll on a whistleblower’s personal life outside the office. Many whistleblowers become, understandably so, engrossed by their retaliation case. Prioritize the important people–family and friends–in your life and protect your physical and emotional health. Exercising, hobbies, socializing—these are some ways to renew your psychological well-being.

All federal employees swear an oath to the Constitution and serve the nation, not any one person or political party. Our system of government and its institutions were designed to provide checks and balances. But institutions are only as strong as the people that give them life–and whistleblowers are the conscience of those institutions. Hang in there.”

http://www.pogo.org/our-work/articles/2017/survivors-guide-to-being-a-whistleblower-federal-government.html?referrer=https://outlook.live.com/

 

 

Whistleblowing Linked to Decrease in Financial Misconduct

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“THE PROJECT ON GOVERNMENT OVERSIGHT”

“Whistleblowing can lead to lasting changes within a company and a sharp decrease in financial misconduct.

Public companies appear to have a better handle on their books after a whistleblower investigation, according to a new study reported by The New York Times.

The study used Department of Labor data from 2003 to 2010 to identify 317 public companies where employees filed a complaint with the Occupational Safety and Health Administration (OSHA) for facing whistleblower retaliation. Those companies were tracked against “control firms” for changes in financial reporting. The study left out other types of whistleblowing in which employees did not submit retaliation claims to OSHA or whistleblowing could not be observed.

Wilde’s findings appear to contradict previous studies:

In addition to demonstrating the deterrent value of whistle-blowing, Mr. Wilde’s study, which will be published in a forthcoming issue of The Accounting Review, counters previous research that criticized truth tellers. Some studies have questioned whistleblowers’ motivations in bringing cases, as well as the merits of their complaints, Mr. Wilde noted. For example, some researchers have contended that allegations of wrongdoing may be frivolous or driven by employees’ personal vendettas.

But Mr. Wilde’s research found that many of the tips were valuable. He determined that they typically involved companies with a significantly higher likelihood of financial misreporting in the period before the individuals came forward. While he acknowledged that some of the cases he studied were inconsequential, he added that there were “certainly a number of instances where whistle-blowers are providing critical incremental information that allows the government to have a case against a company or an employee.”

The study also underscores the notion that insiders are best positioned to monitor companies’ financial reporting. This has become especially true as corporations have grown larger and more complex, Mr. Wilde said.”

http://www.pogo.org/blog/2016/12/whistleblowing-decreasing-corporate-financial-misconduct.html

Read the full article at The New York Times.

NSA Watchdog Removed for Whistleblower Retaliation

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National Security Agency photo by Flickr user CreativeTime Reports

“THE PROJECT ON GOVERNMENT OVERSIGHT

“George Ellard occupied a position of trust as top watchdog of the National Security Agency, America’s principal collector of signals intelligence.

Photo of George Ellard

Dr. George Ellard

A high-level Intelligence Community panel found that Ellard  had retaliated against an NSA whistleblower. NSA’s Director, Admiral Michael Rogers, promptly issued  Ellard a notice of proposed termination.

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Admiral Michael Rogers, Director of NSA, photo by Flickr user U.S. Naval War College

Ellard was not only NSA’s Inspector General, but an outspoken critic of Edward Snowden, the former contract employee who leaked hundreds of thousands of classified emails to publicly expose the agency’s domestic surveillance program. Snowden claimed, among other things, that his concerns about NSA’s domestic eavesdropping were ignored by the agency, and that he feared retaliation. Ellard publicly argued in 2014 that Snowden could have safely reported the allegations of NSA’s domestic surveillance directly to him.

The closely held but unclassified finding against Ellard is not public. It was reached by following new whistleblower protections set forth by President Obama in an executive order, Presidential Policy Directive 19. (A President Trump could, in theory, eliminate the order.) Following PPD-19 procedures, a  first-ever External Review Panel (ERP) composed of three of the most experienced watchdogs in the US government was convened to examine the  issue.  The trio — IG’s of the Justice Department, Treasury, and CIA – overturned an earlier finding of the Department of Defense IG, which investigated Ellard but was unable to substantiate his alleged retaliation.

“The finding against Ellard is extraordinary and unprecedented,” notes Stephen Aftergood, Director of the Secrecy Program at the Federation of American Scientists. “This is the first real test drive for a new process of protecting intelligence whistleblowers. Until now, they’ve been at the mercy of their own agencies, and dependent on the whims of their superiors. This process is supposed to provide them security and a procedural foothold.”

“The case, which is still in progress, offers hopeful signs that the new framework may be working,” Aftergood added.

POGO learned of the decision against Ellard from sources who spoke on condition of anonymity. The information was later confirmed by government officials. POGO has been told that mention of the finding will appear in a semiannual report (SAR) of the Intelligence Community IG (ICIG) that should be released in the near future. It makes brief mention of the case without citing Ellard by name.

Neither Ellard, his lawyer, nor the NSA provided any comment, despite POGO’s numerous attempts to offer them the opportunity.

POGO also reached out to the NSA employee and victim of Ellard’s retaliation, posing a detailed series of questions about what happened through an official intermediary. POGO has been told that the whistleblower composed answers to at least some of those queries, and was seeking NSA approval before releasing them. So far, there is no sign that such approval has been granted.

The DODIG told POGO it would have no immediate comment.

THE RETALIATOR

Ellard, a Yale-trained lawyer and former prosecutor with a doctorate in philosophy, was for nine years the top oversight official keeping tabs on NSA, an agency fraught with controversy over its handling of Edward Snowden and other prominent whistleblowers. Ellard in particular chose to enter that debate along with other critics who faulted Snowden for his alleged unwillingness to report his concerns about NSA domestic surveillance through channels inside the agency set up for that purpose.

IG Ellard’s criticism of Snowden first stirred controversy during a 2014 panel discussion at Georgetown University Law Center in Washington. “Snowden could have come to me,” Ellard declared, arguing that the leaker, now a fugitive in Russia, would have received the same protections as other NSA employees, who file some one thousand reports annually to the agency’s hotline. “We have surprising success in resolving the complaints that are brought to us,” Ellard said, adding, “Perhaps it’s the case that we could have shown, we could have explained to Mr. Snowden his misperceptions, his lack of understanding of what we do.”

Snowden himself has explicitly contended that he feared retaliation and that  he had no other option but to go public if he wished to expose NSA domestic eavesdropping. Among the cases of retaliation that Snowden has pointed to is that of  former senior NSA employee Thomas Drake, who after reporting alleged wrongdoing through authorized channels, was arrested at dawn by the FBI, stripped of his security clearance, charged with crimes under the Espionage Act, all of which were later dropped, leaving him to find work  in an Apple store. Snowden’s related contention is that in his own case,  he did, in fact, report his concerns in emails to NSA superiors at the time, a contention which NBC has said  it verified.

Now, given the official finding that Ellard retaliated against an NSA whistleblower, the credibility of Ellard’s argument that Snowden could have come to him is gravely undermined. More generally, there are few if any incentives for intelligence whistleblowers to report problems through designated authorities when the IG of NSA is found to have retaliated against such an individual.

PPD-19 IS WORKING

Meanwhile, the ICIG’s handling of what began as a whistleblower complaint against Ellard sends an encouraging signal to those who may report wrongdoing at 17 US intelligence agencies and all executive-branch federal offices where employees hold security clearances, according to the ICIG, which oversees the directive.

Obama proposed the  PPD-19 process in 2012, though implementation did not begin until in mid-2013.  Some 18 appeals for review of a retaliation charge, or the convening of an  ERP , have made their way to the office of Intelligence Community IG Charles McCullough, III, who oversees the directive.

Dan Meyer, the ICIG’s Executive Director for Intelligence Community Whistleblower & Source Protection told POGO, “The purpose of PPD-19 is to offer intelligence and national security whistleblowers an effective and safe means to report problems without being forced to confront the fear of reprisal.”

As such, the Ellard case is groundbreaking not only because it represents the most extensive use of PPD-19 procedures to date, but also because of Ellard’s high-ranking position in a national security environment where few, if any top officials are known to have been held accountable. A variety of reprisal accusations have been made against senior officials over the years. Rightly or wrongly, very few have been ever been substantiated.

Under the PPD-19 procedures used in Ellard’s case, the allegations were first reviewed by the DoD IG, but that office was unable to substantiate retaliation. The victim who had made the allegations then appealed to ICIG McCullough. He, in turn, decided to convene a first-ever high-ranking, three-person ERP to further examine the matter.

McCullough would normally have chaired the group, but opted to recuse himself, mindful of a conflict of interest. Indeed, McCullough previously worked at the NSA IG himself as its chief of investigations. Ellard was his boss.

Filling in for McCullough as chairman of the panel was DOJ IG Michael Horowitz, who selected the CIA and Treasury watchdogs to serve with him.

According to ERP procedures, the panel had the option to approve the earlier DoD IG findings, which did not substantiate retaliation; to ask  the DoD IG to redo all or part of its probe; or to redo the investigation itself, using the record of the previous probe as a baseline.

The ERP opted to conduct its own inquiry, including witness interviews and the evaluation of evidence.

Once the panel found that Ellard had retaliated against a whistleblower, the finding went to Admiral Michael Rogers who, as NSA director, had 90 days to take action on two fronts: what remedy to offer the victim of retaliation, and what discipline to impose on Ellard, the retaliator.

POGO has been unable to determine exactly what remedy Rogers prescribed, if any, for the victim, but he promptly moved against Ellard. The highly unusual outcome marks the first time a PPD-19 review panel has ever been convened and the first time that a prior investigation was reversed under the process set forth in the directive.”

http://www.pogo.org/blog/2016/12/intelligence-community-landmark.html?referrer=https://outlook.live.com/

Jury Smacks Man Tech With $2.1 Million For Firing Whistleblowers

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“WASHINGTON TECHNOLOGY”

“ManTech International will have to pay at least $2.1 million to two former employees.

A jury ruled in favor of Kevin and Muge Cody, husband and wife, on Nov. 18 and ordered that the company pay them $800,000 in compensatory damages and $1.35 million in back pay damages.

The total amount could go higher after front pay damages are assessed. The couple claims they were fired by the company after they raised False Claims Act allegations that the company knowingly underbid the costs of a contract for maintaining mine resistant vehicles and then billed the government claiming the higher costs were unexpected.

Kevin Cody was a president and general manager for a unit of ManTech’s Technical Services Group. Muge Cody worked within ManTech’s global contingency operations division.

ManTech claimed that they were fired as part of a company layoffs, according to a statement from the Cody’s legal team.

According to a ManTech statement, the allegation that the company did anything fraudulent was “baseless and was dropped by the plaintiffs.”

The company plans to appeal the ruling against it over the wrongful termination.

According to a copy of the False Claims Act suit the Cody’s filed, ManTech won a $2.85 billion contract in 2012 to provide vehicle support maintenance for more than 15,000 MRAP vehicles in Iraq and Afghanistan.

As the contract moved forward, both Kevin and Muge Cody discovered what they claimed were defective pricing. They said the company depressed their fringe rate from 60 percent to 47 percent as part of a price to win strategy. This strategy lowered the fringe costs by more than $12 million and helped the company win the contract, according to the lawsuit.

After award, the company began billing the higher fringe rate as “unplanned increases in the Fridge rates via Variance Rate Revenue charges, which the U.S. Government paid,” according to the lawsuit.

The Cody’s lawsuit alleges that ManTech billed the government an extra $9.2 million from December 2012 to September 2013 so it could recoup its indirect costs.

But these allegations were never brought to trial and were dropped by the Codys, according to ManTech’s statement.

When the Cody’s raised these issues, the company retaliated against them, first with demotions and finally by firing them.

Under the False Claims Act, the couple sued for wrongful termination and had a civil trial last week in U.S. District Court in Alexandria, Va. The trial lasted for five days.

They were represented by The Employment Law Group, which specializes in cases involving discrimination and illegal treatment of employees including those facing retaliation for reporting wrongdoing and whistleblowers.

“The jury’s verdict on Friday was a strong endorsement of the protections offered by the False Claims Act to good-faith whistleblowers such as the Codys and a cautionary tale for employers who believe they can get away with retaliation,” said R. Scott Oswald, managing principal at the law firm, in a statement.

Again, I want to note that ManTech says they plan to appeal the verdict. This one might not be over yet.”

https://washingtontechnology.com/blogs/editors-notebook/2016/11/mantech-false-claim-suit.aspx

 

No Protection for IC Whistle Blower Contractors

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(Photo: Mike Mozart / Flickr)

“POGO”

“The restoration of Intelligence Community (IC) contractor whistle blower rights would help safeguard billions of taxpayer dollars in government contracts, grants, and reimbursements annually.

“Snowden:  “I had read the laws. I knew that there were no whistle blower protections.”

Snowden’s disclosure to the media is a perfect example of why intelligence contractors need a mechanism to safely disclose suspected waste, fraud, and abuse.

Three years after Edward Snowden’s leaks, it appears that everyone has an opinion about him—traitor, hero, or somewhere in between. However, there is one undeniable fact surrounding Snowden’s circumstances that has been misreported by Congress and the Executive Branch far too many times: the Intelligence Community (IC) contractor would have had almost no protections had he come forward through proper channels.

Sure, Snowden could have gone to his supervisors and disclosed his concerns. However, had that supervisor retaliated against Snowden by firing him or demoting him, he would have had no protections because he was an IC contractor. In the absence of adequate protections, IC contractors have only two alternatives to almost certain retaliation: 1) remain silent observers of wrongdoing, or 2) make anonymous leaks.

This has not always been the case though. In fact, IC contractors enjoyed the gold standard of whistleblower protections for four years, between 2008 and 2012.

The NDAA for fiscal year 2008 contained temporary provisions that allowed all Department of Defense (DoD) contractors, including those at the National Security Agency (NSA), to enforce their whistleblower rights through district court jury trials. Additionally, in 2009, comprehensive whistleblower protections were enacted for all government contract employees paid with stimulus funds, including other IC agencies like the Central Intelligence Agency. Contrary to predictions that contractor whistleblowers would flood the courts, only 25 cases were filed from 2008 through 2012 under the DoD contractor provision (including from the intelligence community).

This whistleblower shield was so successful in deterring contractor waste and abuse that the Council of Inspectors General for Integrity and Efficiency proposed a permanent expansion for all government contractors. In 2012, McCaskill introduced a whistleblower protection amendment for all government contractors that won bipartisan Senate approval in the fiscal year 2013 NDAA.

However, during that NDAA’s closing conference committee negotiations, whistleblower rights were extended only to contractors outside of the intelligence community. Preexisting rights for IC contractors were also removed, despite a proven track record that the law was working as intended and no evidence that the law had any adverse impacts on national security during its five-year lifespan.

To better protect taxpayer dollars, our country and Americans’ privacy, Congress must restore whistleblower protections for intelligence contractors and stop feeding the false narrative that such protections exist.”

http://www.pogo.org/blog/2016/09/protect-whistleblowers-ic-contractors.html

 

 

Reporting Wrongdoing in the Intelligence Community (IC)

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“POGO”

“The White House announced an addition to the National Intelligence Professional Awards program to recognize and reinforce the value of reporting wrongdoing in the Intelligence Community (IC).

Whistleblowers receive recognition for their bravery in reporting wrongdoing.

The Project On Government Oversight (POGO) has long advocated for the recognition of whistleblowers and the creation of incentives for them to come forward. We are encouraged by the creation of this new award program and by the IC’s commitment to encourage whistleblowers.

The awards program was announced in the government’s self-assessment of its Third Open Government National Action Plan as part of an initiative to increase access to information. The Office of the Director of National Intelligence will encourage whistleblowers to use authorized channels to report their concerns of potential misconduct and will “use the National Intelligence Award program to recognize that activity.”

It is high time that IC whistleblowers received recognition for their bravery in reporting wrongdoing.”

http://www.pogo.org/blog/2016/09/intelligence-community-whistleblower-award-ic.html

 

 

 

 

How the System Went After A Military Hero

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WAR ON THE ROCKS”  ~ AND

“Lt. Col. Jason Amerine earned a Bronze Star with a V device and Purple Heart for his heroic actions…

Amerine was told to report to Army Criminal Investigation Command.His alleged crime? He had spoken to a Member of Congress about the U.S. government’s broken and dysfunctional hostage recovery process.

He’s a Green Beret who was a guest of President George W. Bush at the State of the Union Address in 2002. He taught at West Point and even inspired the Army to create an action figure in his likeness.

His heroic actions during the 2001 invasion of Afghanistan in a battle that were immortalized in a best-selling book, The Only Thing Worth Dying For.

It was a textbook example of retaliation against someone who had spoken the truth and, in doing so, had embarrassed government officials.

We met Amerine in February when he was already under investigation for having talked to Rep. Duncan Hunter (R-CA). He wanted to expose and correct the ultimately fatal bureaucratic infighting over hostage recovery between the FBI, Army, Department of Defense, State Department, and CIA. He was still active duty, but his security clearance had been suspended, he had been stripped of his duties, and he was forced to spend his days doing nothing.

It was clear the systems set up to both protect whistleblowers and enhance congressional oversight were failing him. What we did not know at the time was that this was just the beginning of a long ordeal over several months that would get much worse before it got better.

Working behind the scenes

Our organization, the Project On Government Oversight, was founded by Pentagon whistleblowers concerned about wasteful spending and weapons that did not work. Over the years, our mission has evolved, but we remain devoted to our roots, protecting brave truth-tellers inside the federal government. When Amerine came to us for help, we were vaguely aware of his storied career. We knew there was a book about his experiences as a warrior, but we decided we had better not read it — we needed to help him win his battles here in Washington, and that would have been a lot harder if we were treating him as the war hero he is.

We worked with his original and dogged allies, Rep. Hunter and his chief of staff, Joe Kasper, to try to end the retaliatory investigation and allow Amerine to retire with his reputation intact.

At first we tried to bring the Army bureaucracy to its senses behind the scenes, asking them to reconsider their decision to investigate Amerine for making protected disclosures to Congress. Rep. Jackie Speier (D-CA), the Ranking Member of the House Armed Services’ Oversight and Investigations Subcommittee, co-signed a letter with Hunter to the Army challenging this improper interference with a member of the military’s right to speak to Congress and urging the Army to cease its retaliatory investigation. Their pleas were largely ignored.

The House Armed Services Committee had also interviewed Amerine about the hostage recovery mess, but they did nothing to protect their sources, and their right to access information.

We turned next to the Senate.

Help from Sen. Grassley

Sen. Charles Grassley (R-IA), chairman of the Senate Judiciary Committee, has been a dogged protector of whistleblowers for his whole congressional career. When Amerine explained his case to Grassley’s staff, they immediately understood what was going on and offered to help, asking Amerine to write a letter to Grassley formally asking for assistance. Little did we know that this second protected communication would become the subject of a separate retaliatory investigation by the Army.

Amerine’s retirement orders were “deleted” — our first sign that this had turned into a criminal investigation. Rep. Hunter was able to determine how this had started: When the FBI had learned that Amerine was speaking to Congress, they decided he “needed to get back into his lane.” They started a whisper campaign suggesting that Amerine was improperly disclosing classified information, triggering an Army Criminal Investigation Command investigation. His pay was temporarily suspended.

In June, Chairman Ron Johnson (R-WI) invited Amerine to testify at a Senate Homeland Security and Governmental Affairs Committee hearing about weaknesses in whistleblower protections — in Amerine’s case, the utter failure of military whistleblower laws. It almost didn’t happen. In the days before Amerine was scheduled to testify, the Army yet again tried to interfere and nearly convinced some committee staff that he should not be allowed to testify, disingenuously claiming that his testimony would compromise classified information.

Incredibly, the Afghanistan war hero was now being targeted by bureaucracies back in DC. “Worst for me is that the cadets I taught at West Point, now officers rising in the ranks, are reaching out to me to see if I’m OK,” he told the Senate. “I fear for their safety when they go to war, and now they fear for my safety in Washington.”

DoD Inspector General = FAIL

Amerine had earlier filed a complaint with the Department of Defense Inspector General (DoD IG) alleging retaliation for his communications with Congress. We filed an expedited Freedom of Information Act request to the DoD IG for their investigative report. Even though they are supposed to act as a safeguard for whistleblowers, we were pessimistic that they would actually help in Amerine’s case. A POGO investigation had previously found that the DoD IG refused to release investigative reports that would embarrass high-level officials, and whistleblowers within the DoD IG’s own office allege that the office watered down and changed investigative findings to avoid political controversy. We also worried about their basic competence and capacity to do the work. An internal review of the DoD IG’s investigation of military reprisal cases found gross mishandling of the cases, with the IG’s own investigators disputing the dismissal of more than half of the cases they reviewed.

This time the DoD IG’s failure was spectacular, and the story shifted from the bizarre into the absurd. Despite evidence that the Army’s investigation into Amerine was retaliatory, and therefore illegal, the flaccid DoD OIG yet again failed to do their job in protecting a whistleblower.

To make matters even worse, the DoD IG provided a summary of their investigation into the Amerine case — concluding that he had not been retaliated against — to the Army, which promptly leaked it to The Washington Post.Yet, the IG refused to provide the report to any congressional office that requested it, even to staff who had the specific clearances and privacy waivers required to receive it.

Every system was broken.

When September came and Amerine found himself fingerprinted, we could not help but ask ourselves: Will this stop at a court-martial? Could he end up in jail?

The hero was now being treated as a criminal. The white-hot hatred with which institutions attack whistleblowers spares no one — and now it turned toward Amerine, the war hero.

Victory

Amerine had to assemble a “last guerrilla army” of congressional supporters, POGO, lawyers at Katz, Marshall and Banks, and a few courageous military officers acting behind the scenes, to turn it all around. We all pulled so many levers we are still not sure what worked. But only a month after Amerine was “processed” as a criminal suspect, the Army abruptly ended their investigation and awarded him the prestigious Legion of Merit medal for his military service in a private ceremony.

While that battle is over, the war is not. What if a less-celebrated military service member had spoken to Congress about wrongdoing? Would we have seen the same resolution?

Our military whistleblower protections have fundamentally failed. We have a DoD IG that is at best a lapdog for the military services, and at worst a henchman for vindictive bureaucracies. The whisper campaign from the FBI almost succeeded in destroying a hero’s life. We need to completely clear Amerine’s name, and we must fix the laws that apply to military whistleblowers so that they actually work.

Oh, and yes, now we need to read The Only Thing Worth Dying For.

 Danielle Brian is the executive director of the Project On Government Oversight (POGO). Mandy Smithberger is director of POGO’s Center for Defense Information and Straus Military Reform Project.”

How the System Went After a War Hero: Jason Amerine Goes to Washington

 

 

 

Massive Holes in Intelligence Whistle Blower Regulations

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“PEN.ORG”

“PEN’s report demonstrates how gaps in the existing scheme of protections pose high risks for national security workers wishing to expose alleged wrongdoing.

Drawing on interviews with leakers, lawyers, scholars, journalists, and government representatives, Secret Sources: Whistleblowers, National Security, and Free Expression reveals massive holes in the laws and regulations covering whistleblowing by intelligence workers.

It is particularly so when raising valid constitutional or ethical issues about a government action that has been previously authorized by an agency head or Congress as legal. “

http://www.pen.org/whistleblowers