Government Whistleblowers

The debate over whistleblower protection shifted to the impeachment trial, where another attempt was made to reveal the name of a person some think is the Ukraine Whistleblower.But, an important disclosure didn’t get much attention during the partisan sparring at this week’s House Oversight Committee hearing on whistleblower protections.

The Department of Defense is rejecting

Wednesday’s Congressional hearing on whistleblower protection for federal employees went a little off track at times.

Whistleblower advocates, including David Colapinto, general counsel for National Whistleblower Center, testified about the need for greater protections. Two inspectors general — including Michael Horowitz of the Department of Justice — talked about how the process works.

But, at moments, observers could be forgiven for thinking they had walked into the wrong hearing. Republican Rep. Jim Jordan of Ohio, who is not on the House Committee on Oversight and Reform, was invited to sit in on the hearing. He spent most of his time questioning Horowitz about a completely different topic — inaccuracies Horowitz identified in the FBI’s application for a wiretap of a Trump aide during the 2016 campaign.

Even when the questioning stayed on topic, the cracks in traditionally bipartisan support for whistleblowers were showing. Democrats asked how they could improve protections. Some Republicans challenged why whistleblowers need to be anonymous and accused the Democrats of “weaponizing” the whistleblowing process. The debate frequently returned to the Ukraine whistleblower.

“For decades, Congress has worked on a bipartisan fashion to protect these whistleblowers,” said Gerald Connolly, the Virginia Democrat who chairs the Government Operations Subcommittee.

The hearing was designed to “address some of the challenges to our current protections that have been brought to life by our recent circumstances,” he said.
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Edward Snowden, the noted NSA whistleblower, last night spoke up in defense of his partner in…crime? Concern is growing that journalists who use leaked documents are starting to be pursued more aggressively as criminals.

Snowden fled the country after he revealed the National Security Agency’s mass surveillance program. Glenn Greenwald worked with Snowden, wrote about the leaks for the Guardian in 2013 and won a Pulitzer. See the whole thing play out in the documentary, CitizenFour. That won an Oscar.

Head shot Glenn Greenwald
Glenn Greenwald / Wikimedia Commons

Greenwald is an American based in Brazil, where he writes for The Intercept Brazil. Last week, prosecutors in Brazil charged him with cybercrimes for publishing information from government cell phone messages. He joins Julian Assange of Wikileaks in facing criminal charges not for leaking information, but for distributing it.

In a Washington Post column posted Sunday, Snowden argues:

The legal theory used by the Brazilian prosecutors — that journalists who publish leaked documents are engaged in a criminal “conspiracy” with the sources who provide those documents — is virtually identical to the one advanced in the Trump administration’s indictment of WikiLeaks’ founder Julian Assange in a new application of the historically dubious Espionage Act.

 The Obama administration was willing to go after whistleblowers, but not reporters, he writes.

 When I came forward in 2013 to reveal the global mass surveillance scandal, I understood these unwritten rules. As the same Glenn Greenwald patiently listened to me explain the classified evidence detailing the government’s crimes, everyone in the room knew — or we thought we knew — that as the original source of these disclosures, the consequences for our little truth-telling project would be mine alone.


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“This all supposedly started because of a whistleblower,” President Trump’s attorney Jay Sekulow said Tuesday during the first day of the Senate impeachment trial. “Where is that whistleblower?” he added as he closed his notebook and walked away from the Senate podium.

Whether you think that’s blaming the messenger or not, the reality is the Ukraine whistleblower’s job is done. The whistleblower, is however, still a target. Over the weekend, another of the president’s lawyers, Pam Bondi, said the whistleblower is “not a real whistleblower,” but an informant and leaker.

Whistleblowers, including this one, have been called worse. White House counselor Kellyanne Conway described the whistleblower as “more blowhard than whistleblower.” The president and others like to refer to the “so-called” whistleblower. Fox News correspondent Geraldo Rivera called the whistleblower a rat and a snitch. Rush Limbaugh also called the whistleblower a leaker.

So, we return to the question — What’s wrong with being a leaker? Are all leaks illegal? Can you be a whistleblower and not be a leaker? All this came up in 2017 when President Trump called former FBI chief James Comey a leaker.

NWC chair Stephen M. Kohn clarified the difference in this Washington Post video, where he states that criticism of some leakers “might be valid…but the real motive here is to scare people, to discriminate and distract.”  He points out that there are ways to blow the whistle and disclose information lawfully,


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Just before the holiday, the American Bar Association published a statement on its “Legal Fact Check” webpage concluding that the whistleblower’s identity is NOT Protected by the law.

Stephen M. Kohn

The lawyer for the White House whistleblower has asked that the person’s identity be kept anonymous for the protection

It may be the end of the year for the rest of the world, but the fiscal year ended in October. As we wait for the Department of Justice to crunch its numbers for the year end report on False Claims Act collections, we look back on this year’s reports from other federal programs.

The Inspector General (IG) of the Intelligence Community, Michael K. Atkinson, called whistleblowers the agency’s  “first responders” in his semi-annual report to Congress. In April, the office issued a report entitled “Whistleblowing Works.”

The Commodity Futures Trading Commission awarded more than $75 million in FY 2019 to five whistleblowers  “who voluntarily provided original information or analyses that led to successful enforcement actions.” This total includes the program’s largest-ever award of approximately $30 million.

SEC

The Securities and Exchange Commission reported that it awarded approximately $60 million in awards to eight people  “whose information and cooperation assisted the Commission in bringing successful enforcement actions.” This included a $37 million award to a whistleblower who supplied information that led to a settlement against JPMorgan Chase & Co. over claims the company was not transparent with investors about conflicts of interest.

The most recent report from the IRS came out in February and reported that whistleblowers helped the agency collect more than $1.4 billion in criminal fines, and civil forfeitures in fiscal year 2018. Since 2007, the program has made more than $800 million in whistleblower awards based on the collection of $5 billion.


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Two pieces of note for whistleblowers and their supporters from Government Executive.

One reported on a survey that posed this question, which was answered by nearly 700 federal workers.

Please complete the following sentence: “The attacks on the whistleblower by President Trump and various Congressional Republicans have made it ________ likely that I will report

  • A round up of recent news begins with a link to a new piece in The Hill by the founders of the NWC. They ask “(N)ow that the impeachment case is clearly headed to a Senate trial, what will become of the whistleblower?”
  • Time magazine declared public servants the “Guardians of the Year.” Whistleblowers expect blowback. But paranoia about a “deep state” conspiracy has brought much wrath upon those professionals. Previously they were seen, at worst, as bureaucratic or boring. So, a tribute is in order.

There are 363,000 federal workers in the greater Washington, D.C., area. In the first week of September, history turned in the office of one of them. The intelligence analyst who blew the whistle on President Donald Trump had just gotten off the phone with the Inspector General’s office.

The piece quotes NWC chair Stephen Kohn on how the intelligence community statutes were designed to protect both classified information and the whistleblower.

“That’s what’s so significant about the Ukrainian case,” says whistle-blower attorney Stephen Kohn. “Congress specifically said, If you want to be protected under this law, you raise your concerns this way.”


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Michael Horowitz, DOJ IG

Justice Department Inspector General Michael Horowitz was on Capitol Hill Wednesday to talk about his report on the FBI’s investigation into Russian interference in the 2016 election. The debate over the whistleblower complaint about President Trump and the Ukraine was playing out elsewhere. But Senator Dianne Feinstein of California took the opportunity to ask Horowitz about whistleblower protection.

From The Hill:

“Whistleblowers have a right to expect complete, full confidentiality in all circumstances,” Horowitz said, calling it a “very important provision.”

Horowitz added that “any politically motivated investigation undermines the rule of law.”

His support of whistleblowers is well established. Horowitz was joined by about 60 inspectors general in an October letter to the Department of Justice lawyers. They note that the DOJ decision to essentially overrule the Intelligence Community Inspector General over the Ukraine call whistleblower complaint set a bad precedent.

Whistleblowers play an essential public service in coming forward with such information, and they should never suffer reprisal or even the threat of reprisal for doing so. For over 40 years, since enactment of the Inspector General Act in 1978, the IG community has relied on whistleblowers, and the information they provide, to conduct non-partisan, independent oversight of the federal government. Because the effectiveness of our oversight work depends on the willingness of government employees, contractors, and grantees to come forward to us with their concerns about waste, fraud, abuse, and misconduct within government, those individuals must be protected from reprisal.


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Two whistleblowers are scheduled to testify on Capitol Hill this morning. Both hearings begin at 10 a.m.and will be broadcast live.

Coast Guard Lt. Cmdr. Kimberly Young-McLear will testify about retaliation she faced after complaining about bullying and harassment at the Coast Guard Academy.  In 2018, the Department of Homeland Security inspector general confirmed her complaints. From the New London Day. (The academy is based in the Connecticut city.)

Young-McLear says she endured four years of abuse at the academy, including her supervisor making belittling comments toward her, using her as a scapegoat and undermining her work. She said she exhausted the complaint process, making reports to her Coast Guard chain of command, including senior leadership at the academy and the commandant, and through the Coast Guard and Department of Homeland Security’s civil rights reporting processes.

“They all failed me. The reporting systems that we have in place failed, and I was retaliated against,” said Young-McLear, who left the academy this summer for a cybersecurity fellowship under the Department of Homeland Security.

Coast Guard officials say they have addressed Young-McLear’s concerns but problems at the Coast Guard persist.


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