The Project On Government Oversight (POGO) Blog

Northrop Wins KC-X Tanker Competition

In an upset victory over odds-on-favorite Boeing.  More undoubtedly to come.

-- Nick Schwellenbach

"Straddling the Barbed Wire Fence"

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 bad news.

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 effectiveness.

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.  Those replies form the backbone of POGO's report, and they reveal sometimes surprising information and insight.

Attorney Urges End to Investigation Into Coast Guard Whistleblower

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.

To read the letters, click here.

To learn more, see "POGO Criticizes Lack of Accountability in Coast Guard Program and Scurrilous Investigation of Whistleblower" or "Coast Guard Deepwater Program Whistleblower Suffers Retaliation."

-- Beth Daley

DOJ in Doghouse Over Anti-Fraud Lawsuits Filed by Government Employees

Yesterday, the Senate Judiciary Committee held a hearing on S. 2041, legislation to strengthen the False Claims Act, a law that allows citizens to file suit to challenge fraud against the federal government and which has recovered $20 billion since it was strengthened in 1986.

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.

A New Take on Congressional Oversight

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.

-- Michael Smallberg

Exchange Between Senator McCaskill and Marine Commandant Conway on Franz Gayl

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.

-- Nick Schwellenbach

Say It Ain't So Conway...

Do what's right for our uniformed men and women...

-- Nick Schwellenbach

POGO Seeks to Intervene on Behalf of Wikileaks

The American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF) filed a motion this week on behalf of POGO to intervene in a lawsuit that resulted in the shutdown of Wikileaks, an anti-corruption website where whistleblowers can anonymously upload documents.  A similar motion was filed by Public Citizen and the California First Amendment Coalition.   

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

An amicus 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 the world."

A hearing on the Wikileaks case is scheduled for tomorrow.  In the meantime, you can still access the site at wikileaks.ws, wilileaks.be, and wilileaks.cx.

-- Michael Smallberg

Line Up: DOE Hearings in a Town Near You

Thanks to our friends at the National Resources Defense Council (NRDC) for reminding us to spread the word that throughout March, the National Nuclear Security Administration (NNSA)--a semi-autonomous agency within the U.S. Department of Energy (DOE)--will be holding public hearings across the U.S. on the Draft Complex Transformation Supplemental Programmatic Environmental Impact Statement (Draft Complex Transformation SPEIS, DOE/EIS-0236-S4).

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 nudging.

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.

-- Ingrid Drake

No, We're Not Entering the Debate on Immigration--This Is About Whistleblowing

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 sentence.

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."

Unfortunately, no one plans to be a whistleblower, and every case is different, but we recommend that public employees check out The Art of Anonymous Activism: Serving the Public While Surviving Public Service.  Click here to read Chapter 1, "Blowing the Whistle May Be Hazardous to Your Professional Health."   

-- Michael Smallberg

Consumer Product Safety Commission & Whistleblower Protections

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.

-- Marthena Cowart

Senators: Review of Pentagon-Wide Rapid Acquisition Failures Needed

Here's the pdf of the letter from today. These Senators should be commended for exercising their constitutional obligation to oversee the executive branch during this time of war, when hard questions are needed most. And the Senate Armed Services Committee needs to take the next step and ratchet up the heat by investigating these issues, so we can avoid these fatal mistakes in the future.

-- Nick Schwellenbach