That's the way one longtime
Inspector General (IG) described his job--the fact that an IG has a dual
responsibility, to report both to his agency head and also to Congress, can
frequently put him in an uncomfortable position. Then-State Department IG
Sherman Funk told Congress in 1988 that's the way he felt, and it seems not much
has changed since. Another IG told POGO that whenever he walks into a meeting
at his agency, everybody groans, because they know they're going to hear some
As if it isn't bad enough being the
proverbial skunk at the picnic, IGs also are forced to accomplish their
near-impossible missions with few of the tools they need to get the job done.
That's the basic conclusion of a new report from POGO, part one of a major study
of the federal Inspector General system. This first report--which has been covered in Government Executive and the Washington Post--focuses on issues of
independence, and what happens when IGs don't have it. A second, later report
will address questions of IG accountability, performance and
This first part points out that an
IG without independence is an impostor: "Calling someone who lacks independence
of agency leadership an 'Inspector General' not only confuses the press and
public, but can also create pitfalls for potential whistleblowers. The sincere…whistleblower may believe he or she is approaching an independent arbiter and
end up sadly mistaken."
POGO began its project with a
questionnaire to all the IGs who fall under the 30-year-old Inspector General
law, and received responses from 49 of the 64. Thosereplies form the backbone
of POGO's report, and they reveal sometimes surprising information and
In a series of letters issued this week,
Attorney Debra Katz urged the Coast Guard and the Department of Homeland
Security Inspector General to end a 5-month investigation into Coast Guard
whistleblower [redacted]. The basis for the
investigation had been on whether [redacted]
improperly disclosed information to the public. However, the information [redacted] disclosed was provided by the Coast Guard
to the Project On Government Oversight in response to a
Freedom of Information Act request.
Much of the first panel of the hearing concerned Senators'
pointed consternation with the Department of Justice's (DOJ) long-standing
position that government employees should not be allowed to file such suits. DOJ
has been particularly hostile to cases filed by government employees, refusing
to intervene in almost all of them and often filing court motions to have them
dismissed. For example, the DOJ refused to intervene in the case of Department
of Interior auditor Bobby Maxwell which resulted in a $7.5 million jury verdict against Kerr-McGee but which has been appealed.
Despite DOJ's position on this issue, several Federal
Circuit Courts have held that the plain language of the statute does not
preclude federal employees from filing suit and has allowed qui tam cases filed
by government employees to go forward. The result is that there is widespread
confusion about the viability of these cases and what the proper procedures
should be if a government employee chooses to file such a suit. As the comments
below reflect, S. 2041 outlines a reasonable process but provides a way for
whistleblowers to fight fraud when the government fails to do so.
EPA Deputy Administrator Marcus Peacock wrote an interesting blog post this week on the importance of congressional hearings. It pretty much goes without saying that congressional hearings benefit Congress and the American public. Yet, as Peacock points out, hearings can be a useful exercise for agency officials as well.
The process of preparing testimony for a hearing often forces Executive Branch officials like Peacock to examine their agency in a new light. For instance, while preparing testimony for a recent hearing before the House Appropriations Committee, Peacock learned for the first time that Congress had moved $2 million away from the EPA Superfund's emergency response and federal facilities programs, and that 92% of the EPA's senior managers will be eligible for retirement in 2013.
Peacock compares the process to cleaning your house when guests come to visit:
"Not all hearings are of the same quality, but if agency officials do it
right, preparing for a hearing can be an excellent way to make sure the
house is in order."
It is worth noting that Peacock's views are unfortunately rare among Executive Branch officials, who generally consider hearings to be pesky at best.
Read this exchange closely from yesterday between Senator Claire McCaskill and Marine Corps Commandant James Conway regarding Marine Corps science advisor Franz Gayl, who has disclosed problems with the Marine Corps' ability to rapidly procure equipment requested by marines in Iraq and Afghanistan. Conway basically promises to Senator McCaskill that the Marines will try to find a way to screw over Gayl, hence the immediate follow-up letter from Senators McCaskill and Kennedy we posted last night defending him. Check out the italicized text in particular:
McCaskill: I know that Senator Kennedy talked about the MRAP problems in terms of availability. I’m concerned about the whistleblower. I’m concerned about Franz Gayl. I would like some reassurance from you that Mr. Gayl is not going to face any adverse employment decisions or actions because of his whistle blowing in regard to the study that was done that has now come out as part of the public discourse.
Conway: Ma’am, he works for the Marine Corps. I’ve purposefully stayed at arms length from that discussion. I have never met Major Gayl. I can say there is an investigation underway to determine whether or not he has complied with the guidance that was given to him by his boss. We are making every overture to ensure that we don’t violate any aspect of his whistleblower status. But if it’s determined that Mr. Gayl has done something other than what his leadership and his bosses have instructed him to do, then that outcome will have to be determined as to what happens to Mr. Gayl.
McCaskill: Well I know that General Magnus recently referred him to the Office of the DoD IG, which I think is an appropriate move. I know how hard it is internally to be careful in this regard, and I know there are some whistleblowers who have not followed direct instructions and who have gotten out in ways that maybe they shouldn’t have, but the impact that dealing negatively with whistleblowers has on the entire operation is something that we really need to avoid. Whistleblowers are so important to accountability regardless of whether we’re talking about a bureaucratic agency that’s dealing with the taxpayers or whether we’re talking about the military. I just want to make sure that I didn’t leave this hearing without expressing to you how strongly I feel, and how closely I’ll be watching to make sure that any whistleblower, and this whistleblower in particular, is treated with respect and deference and under the letter of the law, in terms of any potential adverse consequences because of what he did. I think it’s tremendously important and I didn’t want to leave without expressing this.
Conway: I can assure you that he will be treated in accordance with the law.
A California federal court issued the permanent injunction
a few weeks ago in response to a lawsuit filed by a Swiss bank, Julius Baer
Group. The bank complained that a former employee was uploading confidential records that allegedly contained evidence of the bank's tax evasion and
offshore dealings. Instead of ordering Wikileaks to remove these individual
documents, the judge
ruled that the entire site must be shut down.
The motion filed on behalf of POGO claims that the
injunction violates the public's First Amendment right to "receive information
and ideas." Wikileaks has previously posted documents of great interest to the
public, such as a manual describing the U.S. Army's operations at Guantanamo Bay, Cuba
curiae brief was also filed by a
group of media and public interest organizations, including Harvard Law School's Berkman Center for Internet & Society's
Citizen Media Law Project (CMLP), the Los
Angeles Times, the Associated
Press, and the Society of Professional Journalists. David Ardia,
director of the CMLP, said in a statement
that the court overstepped its boundaries in shutting down a "website that has
been at the forefront exposing corruption in governments and corporations around
Now is the time to speak up if you are concerned by the
expense and risk represented by the draft plan, because NNSA really needs some
With this quote, NRDC shows how little transformation NNSA is
willing to make when it comes to its nuclear sites:
"In 1995, five years after the Cold War
ended, NNSA's operational nuclear weapons complex consisted of eight sites in
seven states. Under its proposed plan, by 2020--25 years later--NNSA's
operational nuclear weapons complex will still consist of the same eight sites
in the same seven states, but it will be maintaining a weapons stockpile that
is likely to be 1/10 - 1/20 the size."
While the draft plan promises to remove weapons-grade
Special Nuclear Material (SNM) from the Lawrence
Livermore National Laboratory (LLNL), as POGO, Congress, government
officials and community groups have been demanding for years, there are still a
lot of reasons for the public to comment.
First, POGO believes the SNM can be removed sooner than
the NNSA's 2012 deadline--more details with our forthcoming report.
Second, tritium (radioactive hydrogen) research will continue,
as will contamination risks to the 7 million people living within the 50-mile
radius of LLNL. Tri-Valley CAREs
is advising that people speak up for a "green lab" and civilian science
missions at Livermore lab.
For sample language on submitting written comments--the
public comment period ends on April 10,
2008--see the action alert from NRDC.
Community groups are also mobilizing events to prepare the
public for the hearings. The City of Santa Fe--whose City Council recently
passed a resolution opposing the expansion of nuclear weapons production at the
Los Alamos National Laboratory (LANL)--Concerned Citizens for Nuclear Safety,
Faithful Security, the New Mexico Conference of Churches, and Nuclear Watch New
Mexico are having an event on March 1st to raise
awareness about how the draft plan expands LANL's mission of producing
plutonium pit "triggers" for nuclear warheads from 20 pits per year (ppy) to up
to 80--which could lead to a 28% increase of airborne pollutants.
ABC's Washington, D.C. affiliate, WJLA (Channel 7), ran a story earlier this
week on Lloyd Miner, a law enforcement veteran of 24 years who is facing time in
a federal prison after blowing the whistle on his former boss at the U.S.
Citizenship Immigration Services.
Miner's former boss, Robert Schofield, was caught
accepting bribes and sexual favors in exchange for green cards and phony visas.
Miner helped to expose Schofield's criminal operations, but he soon
found himself under investigation and surveillance.
Last April, federal agents stormed Miner's home looking
for evidence of a connection to Schofield. After no such evidence surfaced,
they decided instead to arrest his girlfriend, who was living in the U.S. on an expired student visa.
When she was released to Miner after he posted bond for her, officials charged him with harboring an illegal
immigrant. As a result, he could now be facing a 10-year jail
Rosemary Jenks, a lobbyist for tougher immigration laws,
believes that officials are giving Miner an unusually harsh punishment as
retaliation for his whistleblowing:
"We're supposed to be in a war against
terrorism, and they're prosecuting Lloyd Miner for falling in love with an
illegal alien...To be honest with you, the moral of the story: if you work for the government, don't blow the whistle."
The Consumer Product Safety Commission (CPSC) has received a lot of attention in the recent weeks and months. The "little agency that couldn't and wouldn't" has inspired the Senate's Commerce Committee to include "best practices whistleblower protections" in a bill written to strengthen the CPSC. The whistleblower provision in S. 2663 provides equivalent witness protection fights for citizens defending America against unsafe products as those given to individuals who challenge security threats in the ground transportation industries approved almost unanimously last year in the 9/11 law.
Congressman Dingell's Energy and Commerce committee inexplicably left this provision out of the House bill. The CPSC has a proven track record of always favoring industry concerns over public safety. Given the public's outrage with the CPSC, it will be hard for the Chairman to justify this action.
A diverse group of good government and consumer protection organizations sent a letter of support to the Senate for S. 2663. As the groups note, whistleblower protection is a necessary enforcement cornerstone for the promise of reform to be realized most effectively.