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Dissenters’ Digest for 2012

Dissenters’ Digest takes a look at last year’s top stories covering whistleblowers, watchdogs, and government accountability.


OSC Finds Retaliation on Air Force Base. The Office of Special Counsel submitted a report to the Air Force alleging that four whistleblowers at the Dover Air Force Base mortuary were retaliated against for disclosing mishandling of troop remains. OSC gave the Air Force the opportunity to review the report and respond. “If the Air Force does not respond or responds in a way that OSC finds insufficient or unreasonable, OSC can pursue disciplinary action against civilian employees before the Merit Systems Protection Board,” OSC said.


FDA E-mail Monitoring Causes Stir. Congressional representatives objected to allegations that whistleblowers at the Food and Drug Administration were subjected to electronic surveillance that captured their communications with Congress and the Office of Special Counsel. Senator Chuck Grassley and Rep. Darrell Issa asked the Special Counsel to investigate. OSC, which had been investigating allegations of retaliation against some of the FDA whistleblowers, expanded its investigation.


Congressional Appearances. MSPB Chair Susan Grundmann and Special Counsel Carolyn Lerner appeared before a Senate committee to discuss progress and challenges in their respective organizations. In a separate hearing, MSPB Member nominee Mark A. Robbins appeared headed for confirmation.


Torture Legality Questioned by State. The National Security Archive uncovered a 2006 State Department memo casting doubt on Justice Department arguments approving the CIA’s “enhanced interrogation techniques.” The author of that memo, Philip Zelikow, was a counselor to Secretary of State Condoleezza Rice. It is believed that the Bush Administration attempted to destroy all copies of the memo.

DOJ Coverup Exposed. The Department of Justice failed to notify defendants or their attorneys of possibly exculpatory evidence of flawed forensic procedures for years. FBI whistleblower Dr. Frederic Whitehurst disclosed improper procedures in the FBI crime lab almost 20 years ago, which led to a nine-year DOJ task force to determine if any defendants were wrongfully incarcerated. The DOJ task force “operated in secret and with close oversight by FBI and Justice Department brass–including [then-Attorney General Janet] Reno and [FBI Director Louis] Freeh’s top deputy–who took steps to control the information uncovered by the group.”


FAA Oversight Failures. In a rare move, the Office of Special Counsel combined seven whistleblower disclosures from FAA employees into one report to the President and Congress, citing an ongoing series of troubling safety disclosures by air traffic controllers and other FAA employees” which have not been rectified by the Department of Transportation.


Beyond Reproach. Efforts to pass the Whistleblower Protection Enhancement Act came under scrutiny after it was disclosed by the lead lobbyists that the bill would not contain jury trial provisions, a long-sought reform. The admission came after the Make It Safe Campaign Steering Committee objected to grassroots attempts to publicize an open letter to Congress which highlighted flaws in the bill. Moreover, these grassroots efforts noted that the Steering Committee had failed to engage the whistleblower community and the public in its lobbying activities, as well as practice transparency and accountability, the values it publicly champions.

Looking Backwards. President George W. Bush ignored a number of the CIA’s pre-9/11 warnings, according to new FOIA documents declassified and revealed this month.

Consciousness of Guilt. The Office of Special Counsel released a memo this month to the federal government urging agencies not to spy on whistleblowers, following allegations of improper surveillance by the FDA. Doing so, the memo said, might lead OSC to conclude that retaliation is afoot.


FDA Hit Piece. The Food and Drug Administration engaged in a classic character assassination campaign against the ringleader of the FDA 9, a group of scientist/whistleblowers who have been targeted for spying and harassment. The New York Times published what has been received as a biased, personality-focused hit piece, but not before the editorial board criticized the FDA for engaging in the spying.


Political Assylum. Ecuador President Rafael Correa granted Julian Assange asylum.

Looking Forward. The Justice Department ended its investigation into Bush-era torture with no charges.


National Security Creep. The month began with a setback for federal employees with a ruling by the Federal Circuit that allows agencies to designate employees’ positions as “non-critical sensitive” and thereby strip away any civil service protections.

House Passes WPEA. The House of Representatives passed the Whistleblower Protection Enhancement Act by unanimous consent. The measure did not protect national security whistleblowersprovide jury trials, or protect whistleblowers terminated under the Bush and Obama administrations. These provisions were under serious consideration, and some of them were even passed by the Senate in May, but lack of fearless, transparent advocacy by the lead lobbyists was to blame for a bill that fell short of what’s needed. Further, efforts to raise awareness among the federal whistleblower community about the lobbyists’ questionable tactics largely fell on deaf ears, raising questions about the extent to which the liberal good government establishment has “cornered the market” by co-opting its victims and suppressing dissent.


Paper Protections For Intelligence Employees. President Obama signed a presidential policy directive extending whistleblower protections to national security and intelligence employees.  The directive–which does not grant employees any new rights–instructs agencies to establish a review process, within 270 days, that allows employees to appeal actions in conflict with the directive that affect their access to classified information.

MSPB Regulatory Review. The Merit Systems Protection Board finalized a massive rule change. Among the changes was the regulatory codification of 5 U.S.C. 7121(g), a provision Congress passed in 1994 that limits whistleblowers’ rights. That provision forces whistleblowers who suffer retaliation to choose between fighting the adverse personnel action directly at MSPB or filing a complaint with the Office of Special Counsel and giving up some rights.


WPEA Becomes Law. After a 13-year run of last-minute stumbles, backroom negotiations, unnecessary compromises, and a mounting heap of ruined federal careers, whistleblowers will have marginally better protections for blowing the whistle on fraud, waste, and abuse in the federal government. The law lags behind private sector counterparts, which allow whistleblowers to challenge retaliatory conduct before a jury of one’s peers. The law does call for the Government Accountability Office to study the need for jury trials, in two years. Other provisions include strengthening the ability of the Office of Special Counsel to bring disciplinary actions against retaliators.


Kafkaesque Gag Order. The Office of Special Counsel alleged in an administrative court that top officials in the Commerce Department Office of Inspector General threatened subordinate employees with negative performance reviews if they did not sign non-disclosure agreements that barred them from exercising their rights to blow the whistle and petition Congress. “Because the act of disclosing the gag provision may itself be prohibited by the harsh terms of the agreements, OSC is protecting the employees’ identities,” it said.

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