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In the spring of 2014, the Project On Government Oversight (POGO) put out the call to whistleblowers within the Department of Veterans Affairs (VA) to provide an inside perspective on the issues the Department was facing. In our 34-year history, POGO has never received as many submissions on a single issue. Nearly 800 current and former VA employees and veterans from 35 states and the District of Columbia contacted us. POGO reviewed each of the submissions, and found that concerns about the VA go far beyond long or falsified wait times for medical appointments; they extend to the quality of health care services veterans receive. A recurring and fundamental theme became clear: VA employees across the country fear they will face repercussions if they dare to raise a dissenting voice. POGO wrote a letter to Acting VA Secretary Sloan Gibson in July last year, highlighting three specific cases of current or former employees who agreed to share details about their personal experiences of retaliation.[1] In California, a VA inpatient pharmacy supervisor was placed on administrative leave and ordered not to speak out after protesting “inordinate delays” in delivering medication to patients and “refusal to comply with VHA regulations.” In one case, he said, a veteran’s epidural drip of pain control medication ran dry, and another veteran developed a high fever after he was administered a chemotherapy drug after its expiration point.

In Pennsylvania, a former VA doctor told POGO that he had been removed from clinical work and forced to spend his days in an office with nothing to do. This action occurred after he complained that, in medical emergencies, physicians who were supposed to be on call were failing or refusing to report to the hospital. The Office of Special Counsel (OSC) shared his concerns, writing “[w]e have concluded that there is a substantial likelihood that the information that you provided to OSC discloses a substantial and specific danger to public health and safety.”[2] In Appalachia, a former VA nurse told POGO she was intimidated by management and forced out of her job after she raised concerns that patients with serious injuries were being neglected. In one case she was reprimanded for referring a patient to the VA’s patient advocate after weeks of being unable to arrange transportation for a medical test to determine if he was in danger of sudden death. “Such an upsetting thing for a nurse just to see this blatant neglect occur almost on a daily basis. It was not only overlooked but appeared to be embraced,” she said. She also pointed out that there is “a culture of bullying employees….It’s just a culture of harassment that goes on if you report wrongdoing,” she said.

That culture doesn’t appear to be limited to just one or two VA clinics. Some people, including former employees who are now beyond the reach of VA management, were willing to be interviewed by POGO and to be quoted by name, but others said they contacted us anonymously because they are still employed at the VA and are worried about retaliation. One put it this way: “Management is extremely good at keeping things quiet and employees are very afraid to come forward.” This kind of fear and suppression of whistleblowers who report wrongdoing often culminates in the larger problems, as the VA is currently experiencing. By now it is well known that employees who recently raised concerns about veteran wait times faced reprisal. But whistleblower retaliation in the VA is nothing new. In 1992 a congressional report detailed the experiences of VA employees who were harassed or fired after reporting problems.[3] Throughout the 1990s there were several congressional hearings conducted on the quality of care at VA hospitals and on reprisal against VA employees who exposed inadequate care.[4] Despite then-Secretary Togo D. West’s declaration that such reprisals would not be tolerated, a House hearing in 1999 found that the reprisal problems still existed.[5] A Government Accountability Report from 2000 found that many VA employees were unaware of their rights to protections against retaliation for blowing the whistle on wrongdoing.[6] The report also found that the majority of employees feared retaliation and were therefore unwilling to report misconduct.

Daniel Kaye, the United Nations’ Special Rapporteur for Freedom of Expression, recently submitted a report to the General Assembly on the protection of whistleblowers and sources. The report highlights key elements of protections for whistleblowers, and is based in part on participation by 28 States as well as individuals and non-governmental organizations (NGOs). Among a host of best-practice protections featured in the report, the Special Rapporteur focuses particular attention on national security whistleblowers and sources, those whistleblowers who are often subject to criminal prosecution for exposing serious problems. Notably, the report recommended a public interest balancing test for disclosures in the national security field that could be used to claim protection from retaliation or as a defense when facing prosecution. This balancing test would promote disclosures where the public interest in the information outweighs any identifiable harm to a legitimate national security interest, and requires that the whistleblower disclose no more information than reasonably necessary to expose wrongdoing. A defense for blowing the whistle in the national security field would be a welcome one, as these whistleblowers often face prosecution under the Espionage Act, which could mean years of costly litigation for simply trying to expose practices that make us less secure. This balancing test is similar to one proposed last year by Yochai Benkler, a law professor and co-founder of the Berkman Center for Internet and Society, and supported by the Project On Government Oversight. The full report contains many best-practice recommendations that our Congress should consider to strengthen whistleblower protections domestically.

In 2013 a contract employee at the Los Alamos National Laboratory found himself stripped of his security clearance and suspended from his job shortly after he published an article arguing the benefits of getting rid of nuclear weapon stockpiles. This month he begins mediation with the lab after his second whistleblower claim was accepted by the National Nuclear Security Administration. Dr. James Doyle worked at the Los Alamos lab, one of the laboratories in the Department of Energy nuclear complex, for 17 years. Prior to submitting his article for publication, he had it reviewed by a classification analyst at the lab, met with the director of the security office to address any concerns, and made it clear in the article that he was providing his own opinion as an individual and not as an Energy Department employee. But just two days after the article was published by the International Institute for Strategic Studies, Dr. Doyle was accused of disclosing classified information. Lab officials searched his personal computer, retroactively classified the article, and suspended his security clearance. Dr. Doyle was understandably confused and filed a complaint alleging that lab officials were retaliating against him for expressing unpopular opinions in the article. After filing the complaint, Dr. Doyle was fired from his position at the lab and his whistleblower complaint was rejected. While the Department maintains that his termination was due to budget cuts, Dr. Doyle believes it was due to his push-back against the retroactive classification of his article.

Several nuclear watchdog groups, including the Project On Government Oversight, rallied around Dr. Doyle, sending a letter in 2014 to the Secretary of Energy and the Inspector General urging a review of his case. Dr. Doyle filed a second complaint because he was fired before his first complaint was resolved. The Nuclear Security & Deterrence Monitor reported last week in an article titled “NNSA Accepts Second Whistleblower Claim From Laid-Off Los Alamos Analyst” (behind a paywall) that this claim was accepted in late 2014 and that Dr. Doyle began mediation with the lab this month. This is a step in the right direction, and one step further than his first complaint ever got.

In a $100 million lawsuit that has garnered virtually no public attention, five National Security Agency (NSA) whistleblowers are accusing the federal government of illegally retaliating against them for alerting the NSA and Congress to a waste of taxpayer funds that benefitted a well-connected contractor.The lawsuit tells the story of the infancy of the NSA’s efforts to surveil the Internet. Back then, there were two programs for the spying agency to choose from — and the first was called ThinThread. It had been developed internally, was comparatively inexpensive, had been tested and proven to be effective, and included safeguards preventing the spying on Americans without a court warrant. The other was called Trailblazer. It did not include such safeguards, had not yet been shown to be effective, and cost 1,000 times more than ThinThread. Instead of being developed internally, it was to be outsourced to Science Applications International Corporation (SAIC), a politically connected contractor.The NSA chose Trailblazer.

In response, four NSA employees who had worked on ThinThread, as well as a congressional staffer, alerted Congress and the Office of the Inspector General of the NSA that the agency was wasting taxpayer funds. That is when their troubles began, according to the lawsuit.It alleges that the defendants, which include the NSA, FBI, and the Department of Justice, as well as individuals associated with them, “knowingly and intentionally fabricated” a claim that the plaintiffs leaked classified information to New York Times reporters Eric Lichtblau and James Risen.“[The defendants] used this fabricated claim for retaliation, illegal searches and seizures, physical invasion of their residences and places of business, temporary false imprisonment, the confiscation of their property, cancellation of security clearances leading to the loss of their jobs and employment, intentional infliction of emotional distress, harassment and intimidation,” the lawsuit alleges.It also states that the defendants should have known that the plaintiffs were not the leaks because the NSA “was tracking all domestic telephone calls for the supposed purpose of protecting national security.”

The plaintiffs are former NSA employees Thomas Drake, Ed Loomis, J. Kirk Wiebe, William Binney, and former congressional staffer Diane Roark. They seek “punitive damages in excess of $100 million because of Defendants [sic] callous and reckless indifference and malicious acts …” as well as well as an additional $15 million for lost wages and to cover costs.Larry Klayman, the prominent conservative public interest attorney and founder of Judicial Watch, filed the suit on August 20th. However, it is expected to be amended this week, and it is possible that additional publicity for the case will be sought then.

Tomosaitis v. URS Inc.

Plaintiff filed suit against his employer (URS) and the DOE, alleging violations of the Energy Reorganization Act (ERA), 42 U.S.C. 5851(b)(4), whistleblower protection provision, and requested a jury trial. The district court partially dismissed the complaint, denied a jury trial, and granted summary judgment against plaintiff. The court held that before an employee may opt out of the agency process and bring a retaliation suit against a respondent in federal court, that respondent must have had notice of, and an opportunity to participate in, the agency action for one year. In this case, plaintiff's claim against DOE failed for lack of administrative exhaustion. The court concluded that the administrative exhaustion was sufficient as to URS E&C. The court affirmed the district court's dismissal of URS Corp. for lack of administrative exhaustion. The court also concluded that, since plaintiff has shown that his protected activity was a "contributing factor" in the adverse employment action he suffered, he has met his burden for establishing a prima facie case of retaliation under the ERA. Further, the evidence created a genuine issue of fact as to whether plaintiff's compensation, terms, conditions, or privileges of employment were affected by his transfer. The court reversed the grant of summary judgment to URS E&C for ERA whistleblower retaliation. Finally, the court held that plaintiff has a constitutional right to a jury trial for his claims seeking money damages against URS E&C and the court reversed the district court's ruling.

Watchdogs, Lapdogs and Attack Dogs A four-part series by the Washington Examiner examining the state of the inspectors general.

Part Three: Bad things happen to whistleblowers when watchdogs become attack dogs By Mark Flatten | 12/03/14 05:00 AM A whistleblower tried to report wrongdoing to the Veterans Affairs IG — and faced retaliation from administrators. Read More…

Part Two: Temporary IGs subject to agency manipulators covering up waste By Mark Flatten | 12/02/14 05:00 AM Interim IGs have been accused of softening investigative reports under pressure from agency administrators Read More…

Due to carve-outs in federal law, U.S. whistle-blowers who work as contract employees for the intelligence community -- like confessed leaker Edward Snowden -- have virtually no protections.

There is a complex anatomy of whistle-blower protections depending on whether an employee works for an intelligence agency and whether he or she is a contractor or an employee of the government. But nowhere is the difference more stark than in the intelligence community, where contractors lack protections afforded to their government employee counterparts. Whistle-blower advocates actually fear that this lack of protections could lead to more leaks. “I would say that there is a gaping loophole for intelligence community contractors,” said Angela Canterbury, director of public policy at the Project on Government Oversight. “The riskiest whistle-blowing that you can possibly do on the government is as an intelligence contractor.”

Though whistle-blower advocates have actually won increased protections in recent months, intelligence contractors have repeatedly been left out. Intelligence workers are not covered by the Whistle-blower Protection Act. When Congress passed the Whistle-blower Protection Enhancement Act last fall, at the request of the U.S. House Intelligence Committee, the law’s protections didn’t apply to the intelligence community workers -- both contract and government employees. When Congress added whistle-blower protections specifically for contract employees to the National Defense Reauthorization Act of 2013, intelligence contractors were again excluded. To fill the void, President Obama issued Public Policy Directive (PPD) 19 in October 2012 to extend protections to national security workers. However, his directive made no mention of contractors. Because PPD-19 was initially classified and is actually being implemented in secret, advocates are unsure how strong the protections for government intelligence workers actually are. The directive made no mention of contract workers specifically and Canterbury said she would be “actually shocked and astounded” if the directive were interpreted to apply to contractors.

If we want to curb terrorism in the United States, we must stop drone attacks in the Middle East.

It’s a sick myth that Islamic extremists attack the United States or other nations because they “hate our freedom.” They attack us for our foreign policy. In 2006, the United States National Intelligence Estimate reported that the US invasion and occupation of Iraq made the problem of terrorism worse by creating a new generation of terrorists. And since then, top ranking military and counter-terrorism authorities such as General Stanley McChrystal, General Mike Flynn and George W. Bush’s counter-terrorism czar Richard Clarke say that drone strikes in particular are creating more terrorists than they’re killing. If we want to stop terrorist attacks, we should stop the barbaric blind bombings that are fueling radicalization.

“The resentment created by American use of unmanned strikes … is much greater than the average American appreciates,” Gen. McChrystal, who led the US counter-insurgency strategy in Afghanistan, said in 2013. “They are hated on a visceral level, even by people who’ve never seen one or seen the effects of one.” <a href="http://ad.doubleclick.net/N617/jump/defenseone.com/section_ideas;pos=defenseone-instream;sz=600x300;" title=""> <img alt="" src="http://ad.doubleclick.net/N617/ad/defenseone.com/section_ideas;pos=defenseone-instream;sz=600x300;tile=4;"/> </a> <a href="http://ad.doubleclick.net/N617/jump/defenseone.com/section_ideas;pos=contextual-large-rectangle-tablet;sz=700x350;" title=""> <img alt="" src="http://ad.doubleclick.net/N617/ad/defenseone.com/section_ideas;pos=contextual-large-rectangle-tablet;sz=700x350;tile=5;"/> </a> <a href="http://ad.doubleclick.net/N617/jump/defenseone.com/section_ideas;pos=contextual-large-rectangle-mobile;sz=300x150;" title=""> <img alt="" src="http://ad.doubleclick.net/N617/ad/defenseone.com/section_ideas;pos=contextual-large-rectangle-mobile;sz=300x150;tile=6;"/> </a> Gen. Flynn, who until recently was the head of the Defense Intelligence Agency and has become a harsh critic of President Obama’s strategy in the Middle East, has said, “When you drop a bomb from a drone … you are going to cause more damage than you are going to cause good.” Flynn, who has actually backs a more muscular military approach, doesn’t think it should include drones. Clarke has said that when we use unmanned drones to drop bombs which, no matter how hard we try otherwise, inevitably kill innocent people: [Y]ou cause enemies for the United States that will last for generations. All of these innocent people that you kill have brothers and sisters and tribe—tribal relations. Many of them were not opposed to the United States prior to some one of their friends or relatives being killed. And then, sometimes, they cross over, not only to being opposed to the United States, but by being willing to pick up arms and become a terrorist against the United States. So you may actually be creating terrorists, rather than eliminating them,

The head of the U.S. Marshals Service is stepping down later this year, amid heightened scrutiny on the law enforcement agency.Stacia Hylton has served as the director of the agency since January 2011 and had planned to resign since last winter, the agency said in a statement on Tuesday morning.

It has come under new pressure from Congress in recent months, on the heels of separate revelations about its secret use of surveillance devices that scoop up information from people’s cellphones and possible misconduct in hiring and spending money.Sen. Chuck Grassley (R-Iowa), the head of the Senate Judiciary Committee, has been one of the most vocal critics of the apparent misuse of money and employment quid pro quos within the agency, which sits under the umbrella of the Department of Justice. “It’s never good news when the head of an agency needs to step aside in the midst of these kinds of allegations, and it also doesn’t mean the investigations are complete,” he said in a statement on Tuesday, after the announcement from the Marshals Service.“As the Marshals Service moves forward, the next director must be committed to bringing real, positive change to what appears to be a culture corroded by unethical hiring practices, misuse of funds and retaliation against whistleblowers.”Grassley’s committee has begun an investigation into the possible abuse which might continue past Hylton’s tenure, he said.