Why Did Congress Add an Intelligence Community Loophole to the Contractor Whistleblower Protections in NDAA Bill?

1000px-Seal_of_the_United_States_Congress.svgThe National Whistleblowers Center is on record that Department of Defense contractors already had access to jury trials, and that Section 827(e) of the NDAA Bill, the IC loophole, (now codified at 41 U.S.C. 4712(e)) was a new provision that did not previously exist in the law.

So why did it get tacked on to a bill supposedly enhancing rights for government contractors who blow the whistle?

Here’s a relevant timeline of events related to NDAA lobbying:

  • Fourth Quarter of 2012: The Government Accountability Project lobbies Congress for passage of H.R. 4310 (the NDAA bill).
  • Monday, Dec. 10, 2012: Via email, GAP solicits signatures for an organizational petition letter (.docx).
  • Monday, Dec. 17: GAP emails the signatories to the petition letter, saying that “[t]he following has not been publicly announced yet, but we have been informed that the federal contractor provision – through our advocacy and staff negotiations – has overcome opposition.” (Emphasis added.)
  • Tuesday, Dec. 18: A House/Senate conference approves section 827(e), stripping protections for intelligence community contractors.
  • Wednesday, Dec. 19: GAP asks the signatories to hold off on publicizing the petition letter.
  • Wednesday, Dec. 19: NWC issues a “Take Action” alert, both via email and a website announcement, for the public to “urge Congress to protect National Security Whistleblowers.”
  • Friday, Dec. 21: Congress passes the NDAA bill with the loophole intact.
  • Friday, Dec. 21: GAP praises Congress for its action but also criticizes the House Permanent Select Committee on Intelligence for insisting on inclusion of the loophole.
  • Monday, Dec. 24: GAP emails members of the whistleblower community with news of the bill’s passage.
  • Wednesday, Jan. 2: President Obama signs the NDAA bill, issues a signing statement that concerns some members of Congress and divides GAP.

Please note: this bill would not have protected Edward Snowden, even assuming the loophole was not enacted and he used approved channels, because the bill takes effect only on July 1, 2013 (see Sec. 827(i)) and applies to contracts and task orders entered on or after that date.

But this bill also does nothing to protect others who are concerned, as Snowden was.

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Firedoglake: Can It Be Both a ‘Progressive News Site’ and an ‘Action Organization’ in Its Present State?

Allow me to juxtapose some notions and statements that may not be compatible.

From the Society of Professional Journalists’ Code of Ethics:

Journalists should:

— Avoid conflicts of interest, real or perceived.
— Remain free of associations and activities that may compromise integrity or damage credibility.
— Disclose unavoidable conflicts.

From a Dissenter post titled “Independent Journalists Lead Way in Covering and Bringing Transparency to Bradley Manning’s Court Martial“:

“Journalists and media organizations (including this journalist)…”

“The few independent, alternative and newswire reporters that have been covering each day of the proceedings are: independent journalist Alexa O’Brien, Courthouse News’ Adam Klasfeld, Nathan Fuller of the Bradley Manning Support Network and reporters from the Associated Press and Agence France Presse wire services. (I have also attended every single day of [the Bradley Manning] proceedings since December 2011 except for his one-day arraignment hearing in February 2012.)”

From a Dissenter post titled “A Shame There Aren’t More Journalists Covering Bradley Manning’s Court Martial“:

That statement (“And I have to say that from what I’ve seen of Alexa’s work and Kevin’s – in terms of their straight reporting, they get it right”) means everything. It means everything because if bias or sympathy toward Manning is ever used to deride, demean or discredit the reporting I do or the work that O’Brien does we can ask in response, “Do you find the bias gets in the way of us reporting what is actually happening during proceedings? Have you ever read what is reported and thought details were being hidden or embellished because of a lack of objectivity?”

And the following exchange on The Dissenter, back in October 2012:

[MSPB Watch:] Don’t hold your breath on Kiriakou’s lawyer, Jesselyn Radack, making hay of the human rights NGO veal pen cabal.

She works for one of the NGOs that wrote the book on suppressing dissent and exploiting whistleblowers, the Government Accountability Project, which describes its mission as “protecting whistleblowers, advancing occupational free speech, and empowering citizen activists.”

Follow the money for both NGO communities and you’ll likely end up with the same corporate foundations.

[Kevin Gosztola:] You don’t even know who Kiriakou’s lawyers are. Radack is not a lawyer for Kiriakou. And, if she was, he would be in better shape than he is now with his case.

I’ve met Radack, talked with her and can say she would not ever consider a plea deal.

[MSPB Watch:] Kevin, I mean this with all due respect for your work: please keep an open mind to the possibility that Radack, GAP, or anyone else in the whistleblower community is, or may be capable of, engaging in the behavior exemplified by the 10 human rights community members you speak of. I noticed you linked to Sibel Edmonds’ site, boilingfrogspost.com. She has similar anecdotes about GAP as I do. As does the National Whistleblowers Center.

That said, notice I didn’t say anything about Radack’s legal chops, but her propensity (or lack thereof) to expose/advocate against veal pen-ism to the detriment of whistleblowers. She’s not just a lawyer but an advocate. It is the latter role that I’m speaking about. . . .

And this past week’s blow-up with Mr. Gosztola that called his objectivity and independence into question: here, here, and here.

And finally, The Dissenter‘s about page and Firedoglake’s about page.

Some questions:

  • Is there a firewall in place to ensure FDL’s news site isn’t swayed by its mission of “hard-hitting activism”?
  • Am I the only one who sees the lack of objectivity at The Dissenter as a problem?
  • Should The Dissenter act as a PR firm of the Government Accountability Project, defending its employees, looking askance at allegations against it, and questioning the motives of those who step forward? If so, shouldn’t that association be stated upfront in any posts discussing GAP’s clients or employees, per the SPJ code of ethics?
  • Is FDL exempt from journalistic codes of ethics? If so, why?

“Truth never damages a cause that is just” -Gandhi

Firedoglake’s Kevin Gosztola helpfully opined yesterday that

I see what you are doing as being more divisive to the cause of fighting the war on whistleblowing. You have not demonstrated to me that what you are doing is about more than having some kind of beef with Jesselyn [Radack]. It seems like you have an agenda – like you are upset GAP gets so much attention and that overshadows what you do in some capacity. If I have this wrong, I apologize and welcome a rebuttal that shows I am wrong to have this perception.

Gosztola came to this conclusion despite the fact that he admitted that he did not “have time” to review my allegations. My rebuttal (linked above) was that my complaints are about issues of public import. I provided him with numerous links. I know others in the community have stepped forward to supplement my concerns or offer ones of their own that show the extent of the dysfunction and disenfranchisement in the whistleblower community.

Putting aside the propriety of journalists jumping to conclusions, is the sentiment even valid? That being a dissenter (heh) in the whistleblower community who brings allegations (which have not been rebutted by GAP, mind you) is “divisive”? It may reveal who cares about truth and true accountability and who ultimately doesn’t. But is that something to avoid?

I remind Mr. Gosztola that it was his employer, Jane Hamsher at Firedoglake, who coined the term “veal pen” to describe entities within the liberal establishment that are actually harmful to progressive values.

Fact Check Update: NSA Whistleblower Thomas Drake All But Concedes GAP NDAA Amicus Was Premised on False Statement

In a Firedoglake discussion, NSA whistleblower Thomas Drake said the following:

During the 2001-2006 timeframe, OSC was not in a position to properly process the very sensitive (and even highly classified disclosures I made to Congress and later to the Department of Defense Office of Inspector General) involving intelligence activities and programs at the NSA. In addition, OSC had no jurisdiction regarding those particular disclosures.

Given the more recent leadership changes at OSC, their ability to process disclosures from any government employee (including classified disclosures) and make proper referrals where they do not currently have jurisdiction, my own direct communication with their leadership, and the changes already in progress I am encouraged by their direction and engagement, while also recognizing that there is much history requiring attention and restoration of the rights and protections we must afford and provide federal employees, including those who become whistleblowers.

In December, I quoted the following language from a GAP amicus brief that utilized Drake’s and Jesselyn Radack’s experiences:

[W]histleblowers in the intelligence community . . . are limited to internal administrative avenues. The Intelligence Community Whistleblower Protection Act of 1998 (“ICWPA”) is toothless and creates bureaucratic procedures that makes blowing the whistle an exercise in futility. [Emphasis added.]

I then argued that

This particular claim is false. By law, all executive branch employees have the right to make disclosures of classified (or unclassified) information externally–to the Office of Special Counsel. See 5 U.S.C. § 1213(a)(2). The exemption of intelligence workers from protections against reprisal, found in 5 U.S.C. § 2302(a)(2)(C)(ii), does not affect their right to make disclosures to the Office of Special Counsel.

As such, the ICWPA is not the only avenue to blow the whistle in the intelligence community. Though the WPA does not provide protections against reprisal to intelligence community employees, it does guarantee confidentiality and an unfiltered channel to the National Security Advisor and relevant intelligence committees in Congress for intelligence-related disclosures. See 5 U.S.C. §§ 1213(h), (j).

Essentially, Drake is conceding that the amicus statement was, indeed, false. If OSC–an external, independent agency–is able “to process disclosures from any government employee (including classified disclosures) and make proper referrals where they do not currently have jurisdiction,” then intelligence community whistleblowers are not, in fact, “limited to internal administrative avenues.”

At the time, GAP counsel Reem Salahi, along with Jesselyn Radack, tried to dodge the issue in an ugly fashion.

Implications.

First, some predicate facts:

  • As stated by Drake, OSC was incapable of accepting highly sensitive disclosures in the time frame 2001-2002, maybe even sooner.
  • During this time, Clinton-appointee Elaine Kaplan was Special Counsel (1998-2003).
  • GAP did not conduct oversight to ensure that OSC would be a safe haven for whistleblowers like Drake by being able to accept his disclosures (if it did, why say this in Oct. 2010?)
  • GAP gave Kaplan an award in 2003 for having ”served the highest ideals of public service.”
  • OSC now says it is able to accept highly sensitive disclosures.
  • No laws have changed that would allow for this to happen only now.
  • Drake is defending GAP to this day.

What this shows is that:

  • OSC was a fraud in Kaplan’s days.
  • GAP let down whistleblowers doubly, by neglecting oversight of OSC and by giving an award to someone who let whistleblowers twist in the wind.
  • OSC is now doing its job because the cost of not doing so is too high, as evidenced by a particularly painful decade of scandal-prone lawlessness and episodes of whistleblower retaliation.
  • Drake’s continued defense of GAP defies logic.

And, most importantly,

  • Given that the new normal is for OSC to actually follow the law, GAP will try to avoid having to answer for its role in OSC being a fraud for so long.

Firedoglake’s Kevin Gosztola has time to transcribe conversations, but not to fact check them

The fine journalistic ethos at Firedoglake apparently amounts to this:

You think [Jesselyn Radack] has spread misinformation, intentionally or unintentionally? What? You send me to a list of posts that I can on my own time read through. I don’t have time for this. I have work on a wide array of civil liberties/national security issues to do for FDL.

Here’s my evidence showing instances where Radack has been less than forthright. However, here are a number of Mr. Gosztola’s posts where he has quoted Ms. Radack.

Now if only there was a post where Mr. Gosztola prided himself on his journalistic ethics…

Letter from Loretto: John Kiriakou Blows the Whistle on Compromised Washington Watchdogs

Now this is tricky, because these groups helped him navigate the treacherous waters of the mainstream media, with mixed results, during his prosecution and through his send-off to prison. So for John Kiriakou to say the following about groups like the Project on Government Oversight (and implicitly the Government Accountability Project), when they expect loyalty in return (Washington being a transactional town and all), is nothing short of astounding:

No one knows this better than John Kiriakou, the CIA agent who reported to federal prison two weeks ago for blowing the whistle on the agency’s use of torture. During an interview at an Arlington, Va., coffee shop, Kiriakou said the time has come for Washington watchdog groups—organizations like Public Citizen, Project on Government Oversight, Citizens for Responsibility and Ethics in Washington, and others—to admit that President Obama hasn’t come close to making good on his promise to make government more transparent and accountable.

“Dan Ellsberg. He called me again last night,” said Kiriakou, referring to the man who in 1971 leaked the Pentagon Papers and opened the world’s eyes to the United States’ long involvement in Vietnam. “We talk about this all the time. He keeps asking me, ‘Where is the outrage? If this were a Republican administration, people would be in the streets, right? We would be marching in the streets. But people cut Obama a break to the point of irrationality.’ ”

This comes just a few days after this author sent Mr. Kiriakou a letter* urging him to consider who should speak on his behalf. Where it gets complicated is that GAP currently manages his legal defense fund, which is helping to support his family. That should continue unabated, regardless what insights Mr. Kiriakou shares with the world that prove uncomfortable for GAP and its cohorts.

*This author does not take any credit for this development. From his perspective, it is just a welcome coincidence.

My Letter to John Kiriakou

As I see it, certain elements within the whistleblower community are a detriment to whistleblowers acting out of conscience. Mr. Kiriakou will have to make a choice about what kind of person he wants to be after repaying his debt to society. At the very least, such a choice should be an informed one.

A Few Questions for Filmmaker James Spione about SILENCED

SILENCED, a new film about whistleblowers by filmmaker James Spione, is currently in post-production. The film features three GAP clients (Thomas Drake, John Kiriakou, and Peter Van Buren) and one GAP employee (Jesselyn Radack). Here is the trailer.

The film’s promotional material states it will be “offering an analysis, along with a number of independent experts and thinkers, of what [the whistleblowers’] chilling ordeals mean for the future of our country.”

There is no doubt the individuals involved had good intentions when they blew the whistle on various government wrongdoing. There are, however a few wrinkles in several of their stories that I hope will be explored by the independent expert and thinkers, if not Mr. Spione himself.

For instance, concerning Ms. Radack’s account, will the film explore the fact that the emails she believed to have been purged and denied from the court were, in fact, submitted and denied to John Walker Lindh under the court’s protective order?

Will the film explore the fact that Ms. Radack apparently did not make her disclosure concerning Lindh’s allegedly unconstitutional treatment to the U.S. Office of Special Counsel, which could have accepted her dislcosure confidentially, thus preventing any breach of the attorney/client privilege?

Will the film explore the fact that Ms. Radack did not, for some reason, appeal her termination with either the Office of Special Counsel or the U.S. Merit Systems Protection Board, as had been her right as a Department of Justice employee (over which both OSC and MSPB exercise jurisdiction), where no statute or executive order bars such jurisdiction?

Will the film explore Ms. Radack’s stated interest in ensuring that the Office of Special Counsel “scrupulously and fully comply with its statutory obligations to protect federal employees from [prohibited personnel practices],” given OSC’s “immense importance to national security,” before apparently neglecting this interest upon taking a job with the Government Accountability Project?

Will the film explore the fact that Mr. Drake could have, at least under the law, submitted his disclosures to the Office of Special Counsel for referral to Congress, but did not do so, choosing to go to the media with all of the attendant consequences that followed?

Will the film explore the fact that even if the government’s prosecution of Mr. Kiriakou for his admitted violation of the Intelligence Identities Protection Act of 1982 was motivated by his public interviews about the CIA’s torture techniques, the government had legally justified grounds to do so, given that whistleblowing is not a shield against misconduct?

Let me clarify: there is no excuse for government torture, wiretapping, or denial of rights. This is, or is supposed to be, a nation of laws. And that applies equally so to whistleblowers who seek to bring misconduct to light. Good government activists, advocates, and filmmakers do the public no favors by presenting one-sided accounts that omit, distort, or mischaracterize the rights and responsibilities that face whistleblowers in the course of committing the truth. I hope this film does nothing of the sort.

Fact Check Update: How Detailed Are Presidential Signing Statements?

Not very.

Yesterday, the Government Accountability Project issued what can only be interpreted as a clarification on where it stands with regards to President Obama’s signing statement on the whistleblower protections in H.R. 4310, the National Defense Authorization Act of 2013. Initially, GAP was of two minds on the statement (captured here), alternatively downplaying its ramifications while also condemning it for gutting the law, as channeled by its employees Tom Devine (downplaying) and Jesselyn Radack (condemning). The clarification seems to fall on the Radack side of the issue.

While reasoned and carefully measured, it did say that

From GAP’s perspective, it is important to note that there are no references in the signing statement language to restricting the new protections outlined in the law, nor are any enforcement penalties detailed.

However, prior whistleblower-related signing statements were similarly vague in nature, neither “restricting . . . new protections” nor detailing enforcement penalties.

For instance, President George H.W. Bush issued the following statement upon signing the Whistleblower Protection Act of 1989:

Several provisions of the bill must be construed carefully in order to avoid constitutional problems. Among these is new section 1217 of title 5, United States Code, which provides that information transmitted by the Special Counsel to the Congress “shall be transmitted concurrently to the President and any other appropriate agency in the executive branch.” New section 1213(j) similarly provides that certain information that comes into the hands of the Special Counsel shall be transmitted to the President’s National Security Advisor as well as specified committees in the Congress. I do not interpret these provisions to interfere with my ability to provide for appropriate prior review of transmittals by the Special Counsel to the Congress. [Emphasis added.]

President Bill Clinton stated the following in 1994 upon signing H.R. 2970, which amended the WPA:

I have been advised that one provision in this bill (section 9), which concerns the apparent authority of an arbitrator to discipline a Federal employee who was not a party to the original action, raises serious constitutional questions. Accordingly, I am directing the agencies to follow appropriate procedures to protect the constitutional rights of such Federal employees and to consider the need for remedial legislation. [Emphasis added.]

GAP ended its statement by pledging to “stand[] at the ready to publicly praise or criticize such actions in the name of the public.”

MSPB Watch is here to make sure that it does.