I did not publish it but I’m glad it was published:
Based on what’s happening privately I’m not even sure this letter will make a difference. One day the facts will become public. In the meantime OSC’s statutory commitment to “act in the interests of employees who seek assistance from [it]” is being tested. I don’t expect it to be met. The usual OSC secrecy, bureaucracy, and paternalism reigns. Not much has changed, at bottom.
Note that all references in the letter to June should read January instead.
2. Here Dr. Murtagh is featured in a GAP video (scroll to bottom) with then-GAP Executive Director Mark Cohen, who is now the Principal Deputy Special Counsel at the U.S. Office of Special Counsel (and onetime lawyer for Murtagh’s colleague Linda Lewis).
3. One of Dr. Murtagh’s former lawyers is F. Doug Hartnett, who at one point worked (and may still work) at the U.S. Office of Special Counsel under Carolyn Lerner. Hartnett is also a former GAP staffer and former associate of the DC-based employment law firm Passman & Kaplan, P.C.
4. Another of Dr. Murtagh’s former lawyers is Mick Harrison of Bloomington, Indiana. Harrison had some affiliation with GAP. Harrison worked with Richard Condit (now of GAP) on the Teresa Chambers v. U.S. Park Police case of the mid 2000′s. Condit is listed as a reference for Harrison.
5. Currently, Dr. Murtagh is represented by Steven Dennison Smith of Blacksburg, Virginia, against Clark Baker of Los Angeles, California, where I’m listed as a witness. Some of the details of that suit are available here. Attorneys Smith and Harrison previously represented Virginia physician Lokesh Vuyyuru, who had his medical license revoked and who was declared a vexatious litigation for abusing the legal process one too many times. Along the way, Attorney Smith was sanctioned for failing to adequately inquire into his client’s case before bringing suit. At one point, Richard Condit of GAP appealed one of Vuyyuru’s lawsuits all the way up to the U.S. Supreme Court, with no success. Mark Cohen’s email was used for the Supreme Court docket.
6. Dr. Vuyyuru showed up to accompany Dr. Murtagh and their mutual colleague and attorney Steven D. Smith on December 6, 2013, when Dr. Murtagh attempted to criminally enjoin Clark Baker in a Los Angeles court from publicizing his litigation history on jamesmurtaghmd.com. The judge had to give Dr. Murtagh a lecture on the scope of the Bill of Rights and to tell him to take his concerns to civil court instead.
7. Murtagh’s civil lawsuit against Baker is currently pending, where a key issue is whether any of his perceived claims of privilege and confidentiality are legitimate and not contrived schemes for the purposes of silencing or extorting disfavored persons.
The following has not been made officially public:
1. On November 15, 2013, Dr. James Murtagh, a longtime GAP associate and lackey, sued Clark Baker of the Office of Medical and Scientific Justice in California state court for tortious interference with business relationships. The claim is that Baker used confidential information belonging to Murtagh to blacklist him in the temporary physician community. I, along with two other whistleblowers, was named as someone who owed and breached a duty of confidentiality to Murtagh. I was not named as a defendant, and both claims are false.
2. In characteristic fashion, Dr. Murtagh is attempting to cloak his lawsuit in secrecy, filing a motion to seal the entire record. I understand that a hearing on that motion is scheduled for Tuesday, March 18, 2014 at 9am in room 731 of the Stanley Mosk courthouse, in Los Angeles. The docket number is BC527716. Dr. Murtagh is represented by Steven Dennison Smith of Blacksburg, Virginia, and Lurie & Associates of Los Angeles. Mr. Baker is represented by Mark Weitz of Austin, Texas, and Etan Lorant of Los Angeles.
3. In the first week of January 2014, I reviewed over 8,000 emails and narrowed down my production (pursuant to a subpoena from Baker’s attorneys) to over 2,800+ relevant emails and documents. I also drafted a 22-page timeline to recount the relevant events. Dr. Murtagh’s attorneys should now be in possession of this production. (Murtagh’s lawyer sent me a litigation hold notice in December but never followed up with a subpoena.)
4. My understanding is that the Government Accountability Project received a subpoena from Baker’s attorneys around January 12, 2014, but objected on technical and alleged relevance grounds. Their involvement will become apparent over time, if it hasn’t already.
5. I have nothing, absolutely nothing to hide, and I would reveal all 2,800+ emails and the timeline today if it were up to me.
6. That said, I did withhold a number of emails from my production and timeline to prevent further frivolous, derivative litigation. Upon consent or a court order, this information too will become available. This should not be construed as an admission or concession that the information is, indeed, privileged.
7. Despite GAP’s and its cronies’ sub rosa intimidation efforts since January, I will continue to provide testimonial assistance, and all will be revealed in time.
P.S. Also, this. Ask me someday why that letter was necessary.
Can you be an effective advocate for whistleblowers’ rights if you don’t believe retaliation is immoral?
Readers of this website know that I am not a fan of Tom Devine, Legal Director at the Government Accountability Project. I believe that he possesses/possessed far too much influence in whistleblower circles, given that (a) at bottom he does not believe in the rule of law (by his own admission to me), and (b) he does not believe that retaliation is immoral, by his own words to the public just last month. Take a look:
“I don’t even think of retaliation as immoral, at this point.” -Tom Devine, Legal Director at the Government Accountability Project, speaking at Harvard Law School in October 2013 at a program organized by Ralph Nader
Fuller video/context for fact-checkers here.
I’m not going to belabor the point. I’m just going to put this out there: would a so-called abolitionist have been taken seriously in the 1800′s if he didn’t see slavery as an immoral institution? Would a suffragist be taken seriously at the turn of the 20th century if she didn’t see disenfranchisement as immoral? Would a civil rights activist in the 1960′s be taken seriously if he didn’t see segregation as immoral?
Is retaliation for speaking the truth a lesser form of struggle than the above?
Were slavery, disenfranchisement, and segregation not also defended on naturalist, universal, and timeless grounds before this fallacy was exposed for the power-entrenching excuse that it is?
If one doesn’t believe in the rule of law or the immorality of retaliation (or injustice and denial of due process), and one holds a large degree of influence over the development of whistleblower rights for 30+ years, what is the likely degree of health and vitality of those rights, 30 years out?
Despite what my detractors say, my objections with Devine are rooted in the fundamental difference that retaliation is not a natural part of life that we must resign ourselves to and accept. It’s a social norm that can be regulated and abolished. And it is this difference that colors my ethics and motives, as well as his.
An article about professional activism in the environmental movement on PopularResistance.org resonates with what I know and write about the professional whistleblower community. There are many similarities and universal themes. The author has a fluency with the language of decolonization that currently eludes me, so I will simply let the excerpted article speak for itself and let the reader draw his or her own conclusions and insights.
It’s disconcerting to find so few faces in the prominent ranks of the environmental movement that reflect the realities and experiences of those bearing the brunt of climate collapse. Estimates show that since 1990 more than 90% of natural disasters have occurred in poor countries and that, globally, communities of color have been disproportionately impacted by air, soil and water pollution. Numbers also demonstrate that low-income households are hit the hardest by disasters, due to factors such as poor infrastructure and economic instability.
Yet those making strategic decisions are sitting in air-conditioned board rooms, hoping their conversations will pave the way for profound systemic change. Those most impacted by socioeconomic ills and environmental degradation are rarely present at those tables. This disconnect is quite alarming. Those of us frustrated with this scenario have turned to a deeper analysis and framework over the last decade—that of climate justice. Defining climate justice is a work in progress; honoring and integrating it are lifelong struggles.
These are the unsung faces of the resistance. The warriors whose lived experiences and very survival should not only drive the direction of our movements, but will inevitably determine the success of our struggle for collective liberation.
Instead, within the existing mainstream culture, while organizing has shifted to career-based models, anti-oppression work has become fashionable, and even worse, fundable. Through trainings, some may have learned the politically correct language to use, but much of the “anti-oppression” process has remained superficial, void of a real consideration for intersections of race, class and gender. This has resulted in a few token organizers of color hired into the ranks of respectable positions in big non-governmental organizations, with an unspoken expectation that they will be speaking for other brothers and sisters of color. Meanwhile, for those coming from low-income households or without a college education, the doors of opportunity within the environmental and climate movement are almost always out of reach.
For a person once seduced by an organizing career and its false promises of liberation, it was a rude awakening. As a brown migrant woman, often tokenized as the “good kind of Arab,” if I wanted a meaningful voice in this movement, I was going to have to take up space for myself, much like many had done before me. That also meant taking responsibility for my own layers of privilege, like my college education and access to resources, that most in my family aren’t privy to.
The professionalization of change-making has created a non-profit industrial complex (NPIC) which hinders rather than promotes liberationist movements. At Power Shift 2011, a national climate conference bringing together thousands of youth, there was a literal physical divide between the workshop spaces for the college students (mostly white middle-class) and the front-line communities (low-income, mostly youth of color). Since they were assigned different training tracks and curriculum, one of the only overlaps was during keynote speeches.
Meanwhile, NGOs are competing for membership and campaign victories, racing for measurable results that will prove to their funders that they deserve yet more money. In a nine-year period, big greens received over $10 billion in funding, with only 15% of grants (between 2007-2009) allotted to marginalized communities. This discrepancy is appalling, especially given the fact that more money means more institutional costs and infrastructure, which often translates to compromises and watered-down actions. This top-down funding strategy ignores the history of resistance—that large-scale social change stems from the grassroots and a sturdy leadership from the oppressed peoples who have a vested interest in fighting for freedom.
It’s hard to imagine a popular uprising being initiated by those relying on the comforts of paychecks and organizational stability, so those voices shouldn’t dominate the narrative. Often it’s professional activists heard shouting into megaphones, calling for escalation and taking it to the streets. As economies crash, natural disasters multiply, and countries are torn apart by war, that call rings true.
From Naomi Klein to Van Jones, from organizers of the ’99 WTO protest to blockaders of the Keystone XL pipeline in Texas, a similar message resonates: the non-profit industrial complex needs to deepen its class analysis, tackle white supremacy within its own institutions, and dump the colonialist “savior” syndrome. Professional activists must challenge institutionalized and structural privilege within their own organizations, in terms of air time, resources, influence, and how much space they take up.
What can professional activists do to decolonize the mainstream movement? Make financial resources available to those communities that need it most, rather than filling the bank accounts of multi-million-dollar organizations. Open up seats at the decision-making table for the freedom fighters on the front lines, rather than inviting them for the photo op once all the strategy has been laid out. Get out of the way when those whose stories must be told are speaking up, rather than writing up studies about their experience. Take the time to learn and practice genuine allyship that doesn’t translate to condescending tokenism.
To reflect integrity, this process cannot be driven by the need for personal and organizational recognition. Challenging our own internalized -isms is a constant work in progress, one that can take a lifetime. From the jungles of Mexico, the Zapatistas wisely remind us of the longevity of this process, that we must walk on asking questions—”preguntando caminamos.”
“Whistleblower organizations are actively sought out, and bought off, by the influential corporate foundations almost as soon as they appear.”
It’s evident that, for whatever reason, the Transparency Establishment will probably continue to take an artificially narrow view of democracy-sustaining laws that impact millions of people. For this reason, I will accelerate my foray into FOIA law in the likely-mistaken belief that this will make the slightest bit of difference with the professional class. A kitchen-sink approach of historical (but still very relevant) FOIA documents can be found here, and a more organized compendium of resources will be available here.
Obviously, the Special Counsel has a role to play in enforcing FOIA violations. Perhaps not every time, and perhaps only in egregious occasions, but her role is there. The starting point is the law and the status quo. If we as a society are to change it, and to claim there’s a problem with enforcement of this law, an honest assessment would ask if the law as written is being enforced as intended. This should begin before we pile on more resources to OGIS or create a FOIA appeals council.
If we decide that the Special Counsel should not have a say in enforcing FOIA, well that’s a decision that should be debated in the light of day, especially if one carries the mantle of transparency and openness.
OSC was not, in fact, brought up in the FOIA Summit. OSC’s role in FOIA oversight is discussed here, here, and here. Asking why it wasn’t brought up is the same question as why some of the groups involved don’t seek additional funding for OSC, or inquire about its performance or MSPB’s performance.
It’s ironic that for all the discussions and plans to add processes and councils and such, an agency with the decades-old ability to strike fear into the hearts of bureaucrats is being overlooked by the transparency establishment. After all, FOIA law requires agencies to reveal their own dirty laundry themselves, and the element of blind trust in government is baked into that law.
I guess acknowledging that that trust is regularly abused is beyond the scope of the FOIA summit.
A few weeks ago, the Senate confirmed the nomination of OPM general counsel/acting OPM director/former Special Counsel Elaine Kaplan to the little-known U.S. Court of Federal Claims. The Court of Federal Claims hears government contracts cases, vaccination fund claims, and other odd legal bits and ends. Past alumni from this court have gone on to the nation’s federal courts of appeals, but this is by no means a guarantee. In fact, since 1982, when this court was created, only one nominee faced opposition in the Senate. Until Kaplan, that is.
On September 17, 2013, the Senate held a vote (itself a rare feat for such nominees), and approved Kaplan’s nomination by 64-35, with 1 abstention. The 35 opponents were all Republicans – a mix of Tea Party and establishment pols, including Mitch McConnell and the whistleblower-friendly Chuck Grassley. No Democrat voted against Kaplan, and 11 mainstream Republicans voted in favor.
Why did they vote this way?
Continue reading at Firedoglake.