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The Office of Special Counsel (OSC) has been working to investigate claims of retaliation and get favorable actions for many of the VA whistleblowers who have come forward. Since April 2014, the OSC has successfully obtained corrective actions for over 25 whistleblowers.[7] But the OSC still has over 100 pending VA reprisal cases to investigate, among the highest of any government agency, according to Special Counsel Carolyn Lerner.[8] Although the VA has been cooperative with the OSC and their recommendations, merely addressing isolated incidents is not enough.[9] The VA has been struggling with a culture problem for decades and something more must be done.

VA employees who have concerns about management or fear retaliation are supposed to be able to turn to the VA’s Office of Inspector General (OIG). But whistleblowers have come to doubt the VA IG’s willingness to hold wrongdoers accountable. Since 2014, the IG Office has not yet publically released any investigation into employee retaliation, making it difficult to assess how seriously the IG’s office is taking this issue. Furthermore, the VA IG’s office issued an administrative subpoena to POGO in May 2014 that was little more than an invasive fishing expedition for whistleblowers. The IG demanded “All records that POGO has received from current or former employees of the Department of Veterans Affairs, and other individuals or entities.”[10] Though POGO did not comply with the subpoena, such an action was cause for concern for many of the whistleblowers who had shared information with us. POGO remains concerned that there is not a permanent VA IG in place and that the position has been vacant for over a year.[11] Our own investigations have found that the absence of permanent leadership can have a serious impact on the effectiveness of an IG office.[12] Acting IGs do not undergo the same kind of extensive vetting process required of permanent IGs, and as a consequence usually lack the credibility of a permanent IG. Acting IGs also often seek appointment to the permanent position, which can compromise their independence by giving them an incentive to curry favor with the White House and the leadership of their agency.[13] Perhaps most worrisome, given the significant challenges facing the VA IG, a 2009 study found that vacancies in top agency positions promote agency inaction, create confusion among career employees, make an agency less likely to handle controversial issues, result in fewer enforcement actions by regulatory agencies and decrease public trust in government.[14]

It appears the VA IG may be subject to this dangerous lack of independence. For example, the VA OIG has failed to release the results of 140 health care investigations since 2006.[15] Furthermore, the Department of Treasury IG sent a letter to this Committee just last month raising concerns about another VA IG investigation. After speaking to witnesses familiar with the situation, the Treasury IG concluded that their testimony, “calls into question the integrity of the VA OIG’s actions in this particular manner.” The Treasury IG’s investigation also found that multiple witnesses stated a VA employee boasted about his ability to influence the VA OIG’s investigations.[16]

In POGO’s 2014 letter, we recommended concrete steps for incoming VA Secretary McDonald to take in order to demonstrate an agency-wide commitment to changing the VA’s culture of fear, bullying, and retaliation. Neither Acting Secretary Sloan Gibson nor Secretary McDonald have responded to our multiple requests for a meeting. Clearly, an important first step will be for the President to nominate a permanent IG for the VA. Hopefully strong and committed leadership in that office will correct its current course. POGO recommended that Secretary McDonald make a tangible and meaningful gesture to support those whistleblowers who have been trying to fix the VA from the inside. Once the OSC has identified meritorious cases, Secretary McDonald should personally meet with those whistleblowers and elevate their status from villain to hero. These employees should be publicly celebrated for their courage, and should receive positive recognition in their personnel files, including possibly receiving the types of bonuses that have been provided to wrongdoers in the past. Retaliation against whistleblowers is already a prohibited personnel practice, but it will be up to the senior-most VA leadership to ensure that this rule is enforced by the agency. This should not be an isolated event done in response to recent criticisms but an ongoing effort. Whistleblowing must be encouraged and celebrated or wrongdoing will continue.

But it’s not just the VA Secretary who can work to fix this problem. Congress should enact legislation that codifies accountability for those who retaliate against whistleblowers. The definition of “wrongdoing” must include retaliation. The cultural shift that is required inside the Department of Veterans Affairs must be accompanied by statutory mandates that protect whistleblowers and witnesses inside the agency from retaliation. Legislation should ensure that whistleblowers are able to be confident that stepping forward to expose wrongdoing will not result in retaliation, and should provide a system to hold retaliators within the VA accountable. Congress should also extend whistleblower protections to contractors and veterans who raise concerns about medical care provided by the VA. POGO’s investigation found that both of these groups also fear retaliation that prevents them from coming forward. While federal employees working at the VA enjoy whistleblower protections, contractors do not. Congress should extend the same protections to contractors in order to promote internal oversight in an increasingly contractor-heavy landscape.

In addition, a veteran who is receiving poor care should be able to speak to his or her patient advocate without fear of retaliation, including a reduction in the quality of health care. Without this reassurance, there is a disincentive to report poor care, allowing it to continue uncorrected. Congress should extend whistleblower protections to veteran whistleblowers. The VA and Congress must work together to end this culture of fear and retaliation. Whistleblowers who report concerns that affect veteran health must be lauded, not shunned. And the law must protect them.

Under pressure from Congress, and in the wake of revelations that agency management influenced the IG’s final report, Obama appointed Linick as the State Department’s permanent IG in June 2013, less than a month after CBS broke the news about the IG cover-up. Congress confirmed him three months later. Linick launched a new investigation, and in October 2014 the IG confirmed that at least three DSS investigations were blocked by top State Department officials, including the probe involving the ambassador. While the new IG’s report was critical of management’s efforts to block the DSS investigations, it was silent on whether its own office bowed to the pressure.

Part One: IGs form front line of war on waste and fraud, but weak links remain By Mark Flatten | 12/01/14 05:00 AM Whistleblowers routinely say inspectors general failed to investigate their charges of wrongdoing. Read More…

Coming up Thursday: Few fixes available for problem IGs

"Although NSA lost access to the bulk metadata from 26 March 2004 until the order was signed, the order essentially gave NSA the same authority to collect bulk internet metadata that it had" previously, the NSA IG report reads, "except that it specified the datalinks from which NSA could collect, and it limited the number of people that could access the data."The surveillance Comey and his colleagues – including Mueller, the FBI director he is nominated to replace – objected to had merely been paused and rerouted under a new legal basis. Comey remained at the Justice Department as deputy attorney general until August 15, 2005.

NSA Has Hidden Its Most Radical Surveillance Operations … Even from People Like Snowden Who Had General “Code Word” Clearance WASHINGTON’S BLOG: Glenn Greenwald – supposedly, in the next couple of days or weeks – is going to disclose, based on NSA documents leaked by Snowden, that the NSA is spying on all sorts of normal Americans … and that the spying is really to crush dissent.  [Background here, here and here.] Does Snowden even have documents which contain the information which you’ve seen? RUSSELL TICE:  The answer is no. WASHINGTON’S BLOG: So you saw handwritten notes. And what Snowden was seeing were electronic files …?

RUSSELL TICE: Think of it this way.  Remember I told you about the NSA doing everything they could to make sure that the information from 40 years ago – from spying on Frank Church and Lord knows how many other Congressman that they were spying on – was hidden? Now do you think they’re going to put that information into Powerpoint slides that are easy to explain to everybody what they’re doing? They would not even put their own NSA designators on the reports [so that no one would know that] it came from the NSA.  They made the reports look like they were Humint (human intelligence) reports.  They did it to hide the fact that they were NSA and they were doing the collection. That’s 40 years ago.  [The NSA and other agencies are still doing "parallel construction", "laundering" information to hide the fact that the information is actually from mass NSA surveillance.] Now, what NSA is doing right now is that they’re taking the information and they’re putting it in a much higher security level.  It’s called “ECI” - Exceptionally Controlled Information  – and it’s called the black program … which I was a specialist in, by the way. I specialized in black world – DOD and IC (Intelligence Community) – programs, operations and missions … in “VRKs”, “ECIs”, and “SAPs”, “STOs”. SAP equals Special Access Program. It’s highly unlikely Mr. Snowden had any access to these. STO equals Special Technical Operations  It’s highly unlikely Mr. Snowden had any access to these.

Now in that world – the ECI/VRK world – everything in that system is classified at a higher level and it has its own computer systems that house it.  It’s totally separate than the system which Mr. Snowden was privy to, which was called the “JWICS”: Joint Worldwide Intelligence Communications System.  The JWICS system is what everybody at NSA has access to.  Mr Snowden had Sys Admin [systems administrator] authority for the JWICS. And you still have to have TS/SCI clearance [i.e. Top Secret/ Sensitive Compartmented Information - also known as “code word” - clearance] to get on the JWICS. But the ECI/VRK systems are much higher [levels of special compartmentalized clearance] than the JWICS. And you have to be in the black world to get that [clearance]. ECI = Exceptionally Controlled Information. I do not believe Mr. Snowden had any access to these ECI controlled networks). VRK = Very Restricted Knowledge. I do not believe Mr. Snowden had any access to these VRK controlled networks. These programs typically have, at the least, a requirement of 100 year or until death, ’till the person first being “read in” [i.e. sworn to secrecy as part of access to the higher classification program] can talk about them.  [As an interesting sidenote, the Washington Times reported in 2006 that – when Tice offered to testify to Congress about this illegal spying – he was informed by the NSA that the Senate and House intelligence committees were not cleared to hear such information.]

It’s very compartmentalized and – even with stuff that they had – you might have something at NSA, that there’s literally 40 people at NSA that know that it’s going on in the entire agency. When the stuff came out in the New York Times [the first big spying story, which broke in 2005] – and I was a source of information for the New York Times –   that’s when President Bush made up that nonsense about the “terrorist surveillance program.” By the way, that never existed. That was made up. There was no such thing beforehand. It was made up … to try to placate the American people. The NSA IG (Inspector General) – who was not cleared for this – all of a sudden is told he has to do an investigation on this; something he has no information or knowledge of. So what they did, is they took a few documents and they downgraded [he classification level of the documents] – just a few – and gave them to them to placate this basic whitewash investigation.

Snowden’s Failure To Understand the Most Important Documents RUSSELL TICE: Now, if Mr. Snowden were to find the crossover, it would be those documents that were downgraded to the NSA’s IG. The stuff that I saw looked like a bunch of alphanumeric gobbledygook.  Unless you have an analyst to know what to look for – and believe me, I think that what Snowden’s done is great – he’s not an intelligence analyst.  So he would see something like that, and he wouldn’t know what he’s looking at. But that would be “the jewels”. And the key is, you wouldn’t know it’s the jewels unless you were a diamond miner and you knew what to look for. Because otherwise, there’s a big lump of rock and you don’t know there’s a diamond in there. I worked special programs. And the way I found out is that I was working on a special operation, and I needed information from NSA … from another unit. And when I went to that unit and I said “I need this information”, and I dealt with [satellite spy operations], and I did that in the black world. I was a special operations officer. I would literally go do special missions that were in the black world where I would travel overseas and do spooky stuff.

Cheney Was Running the Show WASHINGTON’S BLOG: You said in one of your interviews that Dick Cheney ordered the intercepts that you found in the burn bags [the bags of documents which were slated to be destroyed because they were so sensitive]. Is that right … and if so, how do you know that? RUSSELL TICE: I did not know one way or the other until I talked to a very senior person at NSA who – much later – wanted to have a meeting with me. And we had a covert, clandestine style meeting. And that’s when this individual told me that the whole thing was being directed and was coming from the vice president’s office … Cheney, through his lawyer David Addington. WASHINGTON’S BLOG:  It sounds like it wasn’t going through normal routes?  It’s not like Cheney or Addington made formal requests to the NSA … through normal means? RUSSELL TICE: No, not normal at all. All on the sly … all “sneaky pete” under the table, in the evening when most NSA employees are gone for the day. This is all being done in the evenings … between like 7 [at night] and midnight.

NSA Is Spying On CONTENT as Well as Metadata WASHINGTON’S BLOG: And from what you and others have said, it’s content as well as metadata? RUSSELL TICE: Of course it is. Of course. [Background. But see this.] NSA Spying On Journalists, Congress, Admirals, Lawyers … RUSSELL TICE: In 2009, I told [reporters] that they were going after journalists and news organizations and reporters and such. I never read text of Congressman’s conversations. What I had was information – sometimes hand-written – of phone numbers of Congressmen, their wives, their children, their staffers, their home numbers, their cellphone numbers, their phone numbers of their residence back in Oregon or whatever state they’re from, and their little offices back in their state. Or an Admiral and his wife, and his kids and his staffers …

The main thing I saw more than anything else were lawyers and law firms. I saw more lawyers or law firms being wiretapped than anything else. These are the phone numbers I saw written. And then I would see those numbers incorporated into those lists with the columns of information about the phone number, and the serial number and the banks of recorders and digital converters and the data storage devices. I could see handwritten phone numbers and notes, sometimes with names, sometimes not.

Another committee member, Sen. Ron Wyden, D-Ore., and some civil rights groups called for a fuller investigation. The demands clashed with a desire by President Barack Obama, other lawmakers and the CIA to move beyond the controversy over the “enhanced interrogation program” after Feinstein releases her committee’s report, which could come as soon as next weekMany members demanded that Brennan explain his earlier denial that the CIA had accessed the Senate committee database.“Director Brennan should make a very public explanation and correction of what he said,” said Sen. Carl Levin, D-Mich. He all but accused the Justice Department of a coverup by deciding not to pursue a criminal investigation into the CIA’s intrusion.

“I thought there might have been information that was produced after the department reached their conclusion,” he said. “What I understand, they have all of the information which the IG has.”He hinted that the scandal goes further than the individuals cited in Buckley’s report.“I think it’s very clear that CIA people knew exactly what they were doing and either knew or should’ve known,” said Levin, adding that he thought that Buckley’s findings should be referred to the Justice Department.A person with knowledge of the issue insisted that the CIA personnel who improperly accessed the database “acted in good faith,” believing that they were empowered to do so because they believed there had been a security violation.“There was no malicious intent. They acted in good faith believing they had the legal standing to do so,” said the knowledgeable person, who asked not to be further identified because they weren’t authorized to discuss the issue publicly. “But it did not conform with the legal agreement reached with the Senate committee.”

Feinstein called Brennan’s apology and his decision to submit Buckley’s findings to the accountability board “positive first steps.”“This IG report corrects the record and it is my understanding that a declassified report will be made available to the public shortly,” she said in a statement.“The investigation confirmed what I said on the Senate floor in March _ CIA personnel inappropriately searched Senate Intelligence Committee computers in violation of an agreement we had reached, and I believe in violation of the constitutional separation of powers,” she said.It was not clear why Feinstein didn’t repeat her charges from March that the agency also may have broken the law and had sought to “thwart” her investigation into the CIA’s use of waterboarding, which simulates drowning, sleep deprivation and other harsh interrogation methods _ tactics denounced by many experts as torture.

Buckley’s findings clashed with denials by Brennan that he issued only hours after Feinstein’s blistering Senate speech.“As far as the allegations of, you know, CIA hacking into, you know, Senate computers, nothing could be further from the truth. I mean, we wouldn’t do that. I mean, that’s _ that’s just beyond the _ you know, the scope of reason in terms of what we would do,” he said in an appearance at the Council on Foreign Relations.White House Press Secretary Josh Earnest issued a strong defense of Brennan, crediting him with playing an “instrumental role” in the administration’s fight against terrorism, in launching Buckley’s investigation and in looking for ways to prevent such occurrences in the future.Earnest was asked at a news briefing whether there was a credibility issue for Brennan, given his forceful denial in March.“Not at all,” he replied, adding that Brennan had suggested the inspector general’s investigation in the first place. And, he added, Brennan had taken the further step of appointing the accountability board to review the situation and the conduct of those accused of acting improperly to “ensure that they are properly held accountable for that conduct.”

The allegations and the separate CIA charge that the committee staff removed classified documents from the secret CIA facility in Northern Virginia without authorization were referred to the Justice Department for investigation.The department earlier this month announced that it had found insufficient evidence on which to proceed with criminal probes into either matter “at this time.” Thursday, Justice Department officials declined comment.

In her speech, Feinstein asserted that her staff found the material _ known as the Panetta review, after former CIA Director Leon Panetta, who ordered it _ in the protected database and that the CIA discovered the staff had it by monitoring its computers in violation of the user agreement.The inspector general’s summary, which was prepared for the Senate and the House intelligence committees, didn’t identify the CIA personnel who had accessed the Senate’s protected database.Furthermore, it said, the CIA crimes report to the Justice Department alleging that panel staffers had removed classified materials without permission was grounded on inaccurate information. The report is believed to have been sent by the CIA’s then acting general counsel, Robert Eatinger, who was a legal adviser to the interrogation program.“The factual basis for the referral was not supported, as the author of the referral had been provided inaccurate information on which the letter was based,” said the summary, noting that the Justice Department decided not to pursue the issue.

Christopher Anders, senior legislative counsel with the American Civil Liberties Union, criticized the CIA announcement, saying that “an apology isn’t enough.”“The Justice Department must refer the (CIA) inspector general’s report to a federal prosecutor for a full investigation into any crimes by CIA personnel or contractors,” said Anders.

Indeed, Binney makes it very clear that the government will use information gained from its all-pervasive spying program to frame anyone it doesn’t like.

President Obama for his repeated misrepresentations about the bulk collection program (calling the wiretap court "transparent" and saying "all of Congress" knew "exactly how this program works") while in effect acknowledging the public value of the Edward Snowden leaks by ordering the long-overdue declassification of key documents about the NSA's activities, and investigations both by a special panel and by the Privacy and Civil Liberties Oversight Board. The PCLOB directly contradicted the President, pointing out that "when the only means through which legislators can try to understand a prior interpretation of the law is to read a short description of an operational program, prepared by executive branch officials, made available only at certain times and locations, which cannot be discussed with others except in classified briefings conducted by those same executive branch officials, legislators are denied a meaningful opportunity to gauge the legitimacy and implications of the legal interpretation in question. Under such circumstances, it is not a legitimate method of statutory construction to presume that these legislators, when reenacting the statute, intended to adopt a prior interpretation that they had no fair means of evaluating." (p. 101)

Even an author of the Patriot Act, Rep. Jim Sensenbrenner (R-WI), was broadsided by the revelation of the telephone metadata dragnet. After learning of the extent of spying on Americans that his Act unleashed, he wrote that the National Security Agency "ignored restrictions painstakingly crafted by lawmakers and assumed plenary authority never imagined by Congress" by cloaking its actions behind the "thick cloud of secrecy" that even our elected representatives could not breech. Clapper recently conceded to the Daily Beast, "I probably shouldn't say this, but I will. Had we been transparent about this [phone metadata collection] from the outset … we wouldn't have had the problem we had." The NSA's former deputy director, John "Chris" Inglis, said the same when NPR asked him if he thought the metadata dragnet should have been disclosed before Snowden. "In hindsight, yes. In hindsight, yes." Speaking about potential (relatively minimal) changes to the National Security Agency even the president acknowledged, "And all too often new authorities were instituted without adequate public debate," and "Given the unique power of the state, it is not enough for leaders to say: Trust us. We won't abuse the data we collect. For history has too many examples when that trust has been breached." (Exhibit A, of course, is the NSA "watchlist" in the 1960's and 1970's that targeted not only antiwar and civil rights activists, but also journalists and even members of Congress.)

The Archive established the not-so-coveted Rosemary Award in 2005, named after President Nixon's secretary, Rose Mary Woods, who testified she had erased 18-and-a-half minutes of a crucial Watergate tape — stretching, as she showed photographers, to answer the phone with her foot still on the transcription pedal. Bestowed annually to highlight the lowlights of government secrecy, the Rosemary Award has recognized a rogue's gallery of open government scofflaws, including the CIA, the Treasury Department, the Air Force, the FBI, the Federal Chief Information Officers' Council, and the career Rosemary leader — the Justice Department — for the last two years. Rosemary-winner James Clapper has offered several explanations for his untruthful disavowal of the National Security Agency's phone metadata dragnet. After his lie was exposed by the Edward Snowden revelations, Clapper first complained to NBC's Andrea Mitchell that the question about the NSA's surveillance of Americans was unfair, a — in his words — "When are you going to stop beating your wife kind of question." So, he responded "in what I thought was the most truthful, or least untruthful, manner by saying 'no.'"

After continuing criticism for his lie, Clapper wrote a letter to Chairman of the Senate Select Committee on Intelligence Dianne Feinstein, now explaining that he misunderstood Wyden's question and thought it was about the PRISM program (under Section 702 of the Foreign Intelligence Surveillance Act) rather than the telephone metadata collection program (under Section 215 of the Patriot Act). Clapper wrote that his staff "acknowledged the error" to Senator Wyden soon after — yet he chose to reject Wyden's offer to amend his answer. Former NSA senior counsel Joel Brenner blamed Congress for even asking the question, claiming that Wyden "sandbagged" Clapper by the "vicious tactic" of asking "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" Meanwhile, Steve Aftergood of the Federation of American Scientists countered that "it is of course wrong for officials to make false statements, as DNI Clapper did," and that in fact the Senate Intelligence Committee "became complicit in public deception" for failing to rebut or correct Clapper's statement, which they knew to be untruthful. Clapper described his unclassified testimony as a game of "stump the chump." But when it came to oversight of the National Security Agency, it appears that senators and representatives were the chumps being stumped. According to Representative Justin Amash (R-Mich), the House Intelligence Committee "decided it wasn't worthwhile to share this information" about telephone metadata surveillance with other members of Congress. Classified briefings open to the whole House were a "farce," Amash contended, often consisting of information found in newspapers and public statutes.

The Emmy and George Polk Award-winning National Security Archive, based at the George Washington University, has carried out thirteen government-wide audits of FOIA performance, filed more than 50,000 Freedom of Information Act requests over the past 28 years, opened historic government secrets ranging from the CIA's "Family Jewels" to documents about the testing of stealth aircraft at Area 51, and won a series of historic lawsuits that saved hundreds of millions of White House e-mails from the Reagan through Obama presidencies, among many other achievements.

Director Clapper joins an undistinguished list of previous Rosemary Award winners: 2012 - the Justice Department (in a repeat performance, for failure to update FOIA regulations for compliance with the law, undermining congressional intent, and hyping its open government statistics) 2011- the Justice Department (for doing more than any other agency to eviscerate President Obama's Day One transparency pledge, through pit-bull whistleblower prosecutions, recycled secrecy arguments in court cases, retrograde FOIA regulations, and mixed FOIA responsiveness) 2010 - the Federal Chief Information Officers' Council (for "lifetime failure" to address the crisis in government e-mail preservation) 2009 - the FBI (for having a record-setting rate of "no records" responses to FOIA requests) 2008 - the Treasury Department (for shredding FOIA requests and delaying responses for decades) 2007 - the Air Force (for disappearing its FOIA requests and having "failed miserably" to meet its FOIA obligations, according to a federal court ruling) 2006 - the Central Intelligence Agency (for the biggest one-year drop-off in responsiveness to FOIA requests yet recorded).   ALSO-RANS The Rosemary Award competition in 2013 was fierce, with a host of government contenders threatening to surpass the Clapper "least untruthful" standard. These secrecy over-achievers included the following FOI delinquents:

Admiral William McRaven, head of the Special Operations Command for the raid that killed Osama Bin Laden, who purged his command's computers and file cabinets of all records on the raid, sent any remaining copies over to CIA where they would be effectively immune from the FOIA, and then masterminded a "no records" response to the Associated Press when the AP reporters filed FOIA requests for raid-related materials and photos. If not for a one-sentence mention in a leaked draft inspector general report — which the IG deleted for the final version — no one would have been the wiser about McRaven's shell game. Subsequently, a FOIA lawsuit by Judicial Watch uncovered the sole remaining e-mail from McRaven ordering the evidence destruction, in apparent violation of federal records laws, a felony for which the Admiral seems to have paid no price. Department of Defense classification reviewers who censored from a 1962 document on the Cuban Missile Crisis direct quotes from public statements by Soviet Premier Nikita Khrushchev. The quotes referred to the U.S. Jupiter missiles in Turkey that would ultimately (and secretly) be pulled out in exchange for Soviet withdrawal of its missiles in Cuba. The denials even occurred after an appeal by the National Security Archive, which provided as supporting material the text of the Khrushchev statements and multiple other officially declassified documents (and photographs!) describing the Jupiters in Turkey. Such absurd classification decisions call into question all of the standards used by the Pentagon and the National Declassification Center to review historical documents.

Admiral William McRaven memo from May 13, 2011, ordering the destruction of evidence relating to the Osama bin Laden raid. (From Judicial Watch)

The Department of Justice Office of Information Policy, which continues to misrepresent to Congress the government's FOIA performance, while enabling dramatic increases in the number of times government agencies invoke the purely discretionary "deliberative process" exemption. Five years after President Obama declared a "presumption of openness" for FOIA requests, Justice lawyers still cannot show a single case of FOIA litigation in which the purported new standards (including orders from their own boss, Attorney General Eric Holder) have caused the Department to change its position in favor of disclosure.

The Archive appealed the lower court's decision, and with representation from the distinguished firm of Skadden Arps Meagher Slate & Flom, brought the case to the D.C. Circuit, with oral argument in December 2013. The National Coalition for History, including the American Historical Association and other historical and archival professional organizations, joined the case with an amicus curiae brief authored by the Jones Day law firm arguing for release of the volume. Titled "CIA's Internal Investigation of the Bay of Pigs Operation," Volume V apparently contains Pfeiffer's aggressive defense of the CIA against a hard-hitting 1961 internal review, written by the agency's own Inspector General, which held the CIA singularly responsible for the poor assumptions, faulty planning and incompetence that led to the quick defeat of the paramilitary exile brigade by Fidel Castro's military at the Bahia de Cochinos between April 17 and April 20, 1961. The Archive obtained under FOIA and published the IG Report in 1998. The CIA has admitted in court papers that the Pfeiffer study contains "a polemic of recriminations against CIA officers who later criticized the operation," as well as against other Kennedy administration officials who Pfeiffer contended were responsible for this foreign policy disaster. In the dissenting opinion from the D.C. Circuit's 2-1 decision yesterday, Judge Judith Rogers (appointed by Bill Clinton) identified multiple contradictions in the CIA's legal arguments. Judge Rogers pointed out that the CIA had failed to justify why release of Volume V would "lead to public confusion" when CIA had already released Volumes I-IV. She noted that neither the CIA nor the majority court opinion had explained "why release of the draft of Volume V 'would expose an agency's decision making process,'" and discourage future internal deliberations within the CIA's historical office any more than release of the previous four volumes had done.

Prior to yesterday's decision, the Obama administration had bragged that reducing the government's invocation of the b-5 exemption was proof of the impact of the President's Day One commitment to a "presumption of disclosure." Instead, the bureaucracy has actually increased in the last two years its use of the b-5 exemption, which current White House counselor John Podesta once characterized as the "withhold if you want to" exemption. The majority opinion also left two openings for transparency advocates. It invites Congress to set a time limit for applying the b-5 exemption, as Congress has done in the Presidential Records Act. Second, it concludes that any "factual material" contained in the draft should be reachable through Freedom of Information requests.

Five Agency employees, two attorneys and three information technology (IT) staff members, improperly accessed or caused access to the SSCI Majority staff shared drives on the RDINet Accessing another part of the shared network/drive by using someone else's credentials is low-level hackery, but not the first thing that springs to mind when someone says "impersonation." A supposed firewall test would be the perfect cover for sniffing around previously off-limits areas. Much of what has come to light about the agency's actions hints at low-level espionage. There's still more buried in the IG report that the agency is actively trying to keep from being made public. Just because these activities didn't specifically "target" Senate work material, it was all there and able to accessed. It doesn't really matter what the CIA says it was looking for. The fact that it was done at all, and done with such carefree audacity, is the problem. There are presumably ways to perform these checks that don't involve Inspector Generals, damning reports and multiple hacking accusations.

Judge Vinson’s resistance led Congress to enact, in August 2007, the Protect America Act, a temporary law permitting warrantless surveillance of foreigners from domestic network locations. The next year, Congress replaced that law with the FISA Amendments Act.Last month, as a result of separate Freedom of Information Act lawsuits by The Times and the Electronic Frontier Foundation, the government declassified the identities of the judges who disagreed in early 2007 and several court filings from that episode. But it remained unclear what the N.S.A. had done in June and July of 2007.The newly declassified report said Judge Vinson issued an order on May 31, 2007, that allowed existing surveillance to continue by approving collection on a long list of specific foreign phone numbers and email addresses. But after that, when the agency wanted to start wiretapping an additional person, it had to ask the court for permission.The report said that “the rigorous nature of the FISA Court’s probable cause review of new selectors submitted to the various FISA Court judges following Judge Vinson’s May 31, 2007, order caused the N.S.A. to place fewer foreign selectors under coverage than it wanted to.” That and other factors “combined to accelerate the government’s efforts” to persuade Congress to enact the Protect America Act.

I think it can be said that readers of Consortiumnews.com may be unusually well equipped to understand the anatomy of FBI-gate as well as Russia-gate.  Listed below chronologically are several links that might be viewed as a kind of “whiteboard” to refresh memories.  You may wish to refer them to any friends who may still be confused. 2017 Russia-gate’s Mythical ‘Heroes’ June 6, 2017 The Democratic Money Behind Russia-gate Oct. 29, 2017 The Foundering Russia-gate ‘Scandal’ Dec. 13, 2017  What Did Hillary Clinton Know? Dec. 25, 2017 2018 The FBI Hand Behind Russia-gate Jan. 11, 2018 Will Congress Face Down the Deep State? Jan. 30, 2018 Nunes Memo Reports Crimes at Top of FBI and DOJ Feb. 2, 2018 ‘This is Nuts’: Liberals Launch ‘Largest Mobilization in History’ in Defense of Russiagate Probe Feb. 9, 2018 Nunes: FBI and DOJ Perps Could Be Put on Trial Feb. 19, 2018 ‘Progressive’ Journalists Jump the Shark on Russia-gate March 7, 2018 Intel Committee Rejects Basic Underpinning of Russiagate March 14, 2018 McCabe: A War on (or in) the FBI? March 18, 2018 Former CIA Chief Brennan Running Scared March 19, 2018