The Project On Government Oversight (POGO) Blog

Wyden Pumps the Brakes on Anti-Leaks Legislation

By SUZIE DERSHOWITZ and ANGELA CANTERBURY

Senator Ron Wyden (D-Ore.) is holding firm on free speech rights. Last week, the Intelligence Authorization Act for Fiscal Year 2013 (S. 3454) was “hotlined”—the first step in clearing a bill for unanimous consent in the Senate. Usually, if there are no objections to the hotlined bill within a given amount of time, and leadership agrees, it is passed. But Wyden put the brakes on this legislation due to his concerns about the bill’s so-called anti-leak provisions.

Many of the provisions in Title V of the bill would reduce access to information the public has a right to know, put whistleblowers in jeopardy, and threaten government accountability. Thanks to Wyden’s objection, the Senate was unable to fast-track this far-reaching bill. In June, the Project On Government Oversight and more than 25 of our allies sent a letter to the House and Senate Intelligence Committees objecting to the bill’s anti-speech provisions, which diminish government transparency and jeopardize whistleblowers’ rights. The letter states:

While we recognize that leaks of appropriately and properly classified information are a serious problem, the American public requires access to some information about government conduct in order to foster an informed and meaningful national discussion, particularly about such issues as the use of drones to kill American citizens and other persons.

POGO and our allies in the government accountability community are currently organizing another letter thanking Senate leadership for delaying action on the bill until these concerns can be fully addressed. Any legislation intended to stop leaks of classified information should be carefully considered through an open process that provides ample opportunity for engaging in debate.

Victory for National Security and Intelligence Community Whistleblowers

By ANDRE FRANCISCO

On Wednesday, President Obama issued a Presidential Policy Directive expanding whistleblower protections to national security and intelligence community (IC) whistleblowers.

The directive is a huge step towards accountability in the intelligence community and is welcome protection for national security whistleblowers who are too often punished for reporting fraud, waste, and abuse.

POGO’s Director of Public Policy, Angela Canterbury, praised the directive in a statement:

The President deserves tremendous credit for going above and beyond his commitments to support legislation and explore ways to better protect whistleblowers. When implemented properly, this policy should provide for more balance between guarding precious rights and legitimate secrets while ensuring more disclosures of wrongdoing necessary for a more accountable IC. Today, President Obama delivered on protections for whistleblowers and taxpayers. 

Senate Investigation Found DHS Intelligence Centers Wasted Money and Violated Civil Liberties

By MIA STEINLE

Updated October 5, 2012.

A Department of Homeland Security effort to improve the sharing of terrorism-related intelligence among state and local governments and with officials in Washington has yielded “shoddy” information and civil liberties violations, according to a Senate investigation.

The two-year bipartisan investigation by the Senate’s Permanent Subcommittee on Investigations found that the Department of Homeland Security’s poor oversight of “fusion centers”—local intelligence-sharing hubs it created in response to the terrorist attacks of 9/11—led to “hundreds of millions of taxpayer dollars” being wasted.

“The investigation found that top DHS officials consistently made positive public comments about the value and importance of fusion centers’ contributions to federal counterterrorism efforts, even as internal reviews and non-public assessments highlighted problems at the centers and dysfunction in DHS’ own operations,” the report said.

Up to $1.4 billion of federal funds has been spent on fusion centers since 2003, according to the investigation.

“But the report documents spending on items that did little to help share intelligence, including gadgets such as ‘shirt button’ cameras, $6,000 laptops and big-screen televisions. One fusion center spent $45,000 on a decked-out SUV that a city official used for commuting,” The Washington Post reported.

Intelligence Chief Uses Unreliable Lie Detector Technology to Plug Media Leaks

Actor Mandy Patinkin, portraying a ficitional CIA agent in Showtime's Homeland series, undergoes a polygraph exam (photo by CBS Broadcasting)

By DANA LIEBELSON and ADAM ZAGORIN

The late William Safire, conservative columnist and veteran of the Nixon White House, called the lie detector test a “form of torture” that “breeds the opposite of security.” Writing in The New York Times a decade ago, he said “the hit-and-miss machine” had been thoroughly “discredited.”

But this week, the nation’s top intelligence official announced that the government is expanding its use of the polygraph to expose federal employees who leak classified information to the media.

The testing could put intelligence workers at risk of being falsely stigmatized, jeopardizing their careers and their ability to contribute to the national security. It also could have a chilling effect on employees considering blowing the whistle on government wrongdoing, whistleblower advocates said.

“It is clearly at odds with everything we learned in our report,” said Stephen E. Fienberg, a professor of statistics and social science at Carnegie Mellon University who led a 2003 National Research Council study of the use of polygraphs in security screenings.

Briefing a Senate committee on the study in 2003, Fienberg put it this way: “Unfortunately tests that are sensitive enough to spot most violators will also mistakenly mark large numbers of innocent test takers as guilty.”

Monitoring Government Employee Email Could Lead to Repercussions for Whistleblowers

By DANA LIEBELSON 

Let’s say that you work for a government agency, and happen to witness fraud, waste or abuse—but you know that your employer is reading your email, and might use the information to retaliate against you. Would this affect your decision to blow the whistle?

That’s the concern Special Counsel Carolyn Lerner raised in a memorandum sent last week to government agency heads and general counsels. The Office of Special Counsel (OSC)—which is responsible for investigating whistleblower claims—asked agencies in the memorandum to evaluate their monitoring practices to ensure employees are not discouraged from exercising their legal rights to disclose wrongdoing.

From the memorandum:

Agency monitoring specifically designed to target protected disclosures to the OSC and Inspectors General is highly problematic. Such targeting undermines the ability of employees to make confidential disclosures…The same risk is presented by an employing agency’s deliberate targeting of an employee’s emails or computer files for monitoring simply because the employee made a protected disclosure.

According to The Washington Post, the memorandum comes five months after the paper reported that “the Food and Drug Administration secretly monitored the personal e-mail of a group of scientists who warned Congress and others that the agency was approving medical devices they considered dangerous.”

Lerner and the OSC should be lauded for taking action on this important issue. POGO Director of Public Policy Angela Canterbury said, “This is an extremely important reminder of whistleblower rights and strong recommendation for agencies heads to rein in managers who may be intimidating whistleblowers or violating the law. It is especially welcome given the new directive to amp up monitoring for leaks in the intelligence community.”

Intelligence Community No Longer Stiff-Arming Congressional Watchdogs

By BRYAN RAHIJA

Steve Aftergood reports that the watchdogs at the Government Accountability Office (GAO) have made progress in reclaiming their authority to conduct oversight of the intelligence community.

According to Aftergood, the GAO has completed a classified review of FBI counterterrorism programs, and is currently investigating the role of contractors in intelligence agencies. 

As POGO has noted in the past, the GAO has long had the statutory authority to conduct oversight of the intelligence community. The intel community, however, has historically resisted the GAO's gumshoeing. 

So what's the cause for the recent turnaround? Aftergood points to a May 2011 directive issued by Director of National Intelligence James Clapper:

That DNI directive appears to have broken the logjam of agency resistance, and at least some parts of the intelligence community that previously rebuffed GAO inquiries have become completely cooperative, congressional officials said.

The DNI directive was born out of a requirement in the Intelligence Authorization Act for FY 2010.

POGO strongly supported an amendment to the Act that would have crystallized the GAO's authority to conduct oversight of the intelligence community. But the amendment disappeared from the final legislation without a trace, and in its place was the instruction to the DNI. We were skeptical that this would result in allowing Congress to fully assert its power, but it seems at least now there is some oversight, which we welcome.  

SUNSHINE WEEK: Wonks, Journos, Former Feds Talk Government Secrecy

By BRYAN RAHIJA

Who needs college basketball when you could be debating government accountability? All eyes at POGO HQ this afternoon were fixed not on bracket-busting underdogs, but on a Sunshine Week panel moderated by POGO head honcho Danielle Brian on the balance between protecting national security and maintaining an open and accountable government.  

The all-star panel touched on over-classification of government records, congressional oversight, whistleblower protections, the proliferation of security clearances, and contractors' increasing role in core government activities.  

Jeffrey H. Smith, former general counsel of the CIA, said that the best solution for the current lack of congressional oversight is simply that Congress needs to use more of the powers it already has. 

Dana Priest, the Washington Post reporter behind the "Top Secret America" series and the book of the same name, pointed out that part of the reason for the massive expansion of the contracting community surrounding intelligence agencies was that Congress gave the agencies billions of dollars to ramp up their activities—but with an understanding that agencies wouldn't make the government any bigger.  

Drug Busts, Hurricanes, and Torture, Oh My! 10 Key Inspector General Investigations

By DANA LIEBELSON

With the release of POGO's new Inspector General (IG) vacancy tracker, we've sparked discussion about the important role IGs play in government oversight. We've also encouraged President Obama to appoint IGs in a timely manner, and asked the Senate to consider nominees promptly.

But let’s get real—the work of federal watchdogs isn’t exactly sexy. I’d wager you could walk from one end of the National Mall to the other and not pass a single person who could identify an Inspector General by name. However, recently, IGs are behind some of the biggest headlines and savings in U.S. government. Ever heard of the numerous scandals involving Solyndra? Bernie Madoff? Hurricane Katrina? Then you’ve probably run across a case that your trusty federal IG helped shed light on. Read on to learn more about ten of these important cases.    

>> >> Click Here to See 10 Key Inspector General Investigations << <<

TORTURE	DEEPWATER	HURRICANES	PATRIOT ACT	HUMVEES
DRUGS AND OIL	BERNIE MADOFF	$6.6 BILLION	SOLYNDRA	FOOD SAFETY

 

Dana Liebelson is POGO's Beth Daley Impact Fellow.

Follow @dliebelson

Issa Pledges to Pass Whistleblower Protections for Intelligence Community

By ANDRE FRANCISCO

A key House leader said he intends to advance whistleblower protection legislation before the end of the year.

"Our intention is to move something that is either identical or compatible with the SSCI [Senate Select Committee on Intelligence] solution and it is my intention to move that, with or without the support of the Select Intelligence Committee in the House," said Representative Darrell Issa (R-CA) at an October 6 Transparency Caucus meeting. That solution--protections for intelligence community whistleblowers who use safe, legal channels to disclose wrongdoing--is currently part of the Senate version of the Whistleblower Protection Enhancement Act [WPEA], S. 743.

Issa was answering a question from Shanna Devine, the Legislative Campaign Coordinator for the Government Accountability Project (GAP).

Rep. Issa and Rep. Michael Quigley (D-IL), co-chairs of the Transparency Caucus, discussed a number of transparency bills including the WPEA and the DATA Act (which POGO also supports). WPEA would modernize and expand protections for federal workers who blow the whistle on waste, fraud and abuse. It has come close to being law numerous times, but last year it died on the very last day of the 111th Congress after inaccurate connections with the Wikileaks controversy and a secret hold from an anonymous senator.

“I was deeply disappointed we almost or didn’t quite get through in the last Congress. So, we will get it through in this Congress,” Issa said. Importantly, Issa is chairman of the House Oversight and Government Reform Committee, which has jurisdiction over WPEA.

From Akaka to Amey: 6 Quotable Quotes on Contracting in the Intelligence Community

By DANA LIEBELSON

Yesterday, the Senate Committee on Homeland Security and Governmental Affairs held a hearing on a hot topic that's only getting hotter: the cost of contractors. In this case, the hearing focused specifically on contractors in the intelligence community (IC). Among those who testified was POGO's own General Counsel, Scott Amey. For readers who didn't have the time or inclination to watch the entire hearing (which has been posted online here), we have collected some quotable quotes—and of course, check out POGO’s new contracting report if you haven’t done so already. 

 

Scott Amey, General Counsel, POGO “In POGO’s recent Bad Business report, many of the job classifications we analyzed are commercial. However in 2008, the government outsourced approximately 28 percent of its intelligence workforce and paid contractors 1.6 times more than government employees. POGO’s analysis supports those findings.”

 

Senator Daniel K. Akaka (D-HI)  “Aloha and thank you for being here…during the current budget pressures, I am concerned about the high cost of IC contractors. A recent study by POGO found that federal employees are less expensive than contractors in 33 out of 35 occupational categories.”

 

Daniel Gordon, Administrator, Office of Federal Procurement Policy [Earlier this month, his office finalized a policy letter titled, Performance of Inherently Governmental and Critical Functions] “We don’t expect to see a widespread shift away from contractors because of the policy letter, but we do think the letter will help agencies do a better job in identifying if and when rebalancing is needed, and take action.”

POGO Obtains Pentagon Inspector General Report Associated With NSA Whistleblower Tom Drake

By NICK SCHWELLENBACH

It's too late to change anything related to the Department of Justice (DOJ) prosecution, which fell apart earlier this month. But it is further vindication for Thomas Drake, the National Security Agency (NSA) whistleblower who had faced five counts of violating the Espionage Act for having unauthorized possession of "national defense information." In the end, Drake ended up pleading to a misdemeanor charge of exceeding the authorized use of a computer.

Many of Drake's allegations of waste and ineffectiveness in an intelligence program at the NSA were backed up in a Department of Defense Inspector General (DoD IG) report, which POGO received today. The report is dated December 15, 2004, and has not been previously been made public in any form until today.

CLICK HERE FOR THE DOD OIG AUDIT REPORT, ENTITLED, "Requirements for the Trailblazer and Thinthread Systems," 05 INTEL 03 (December 15, 2004).

The report, which was heavily redacted, found that “the National Security Agency is inefficiently using resources to develop a digital network exploitation system that is not capable of fully exploiting the digital network intelligence available to analysts from the Global Information Network.” The DoD IG also found, in reference to TRAILBLAZER, that “the NSA transformation effort may be developing a less capable long-term digital network exploitation solution that will take longer and cost significantly more to develop.”

POGO obtained a copy of the DoD IG report through a Freedom of Information Act (FOIA) request.

The U.S. Department of Justice's (DOJ's) prosecution was believed to be an outgrowth of the DOJ’s investigation into disclosures of the NSA warrantless wiretapping to The New York Times and came after Drake blew the whistle on widespread problems with an NSA program called TRAILBLAZER. Most of the Espionage Act charges against Drake dealt with documents associated with his cooperation with this DoD IG audit. However, this month the government's case against Drake fell apart and prosecutors dropped the felony charges.

Nick Schwellenbach is POGO's Director of Investigations.

Portrait of Tom Drake by Robert Shetterly.

Tom Drake Update: DOJ Case Against NSA Whistleblower Narrows

By NICK SCHWELLENBACH

For those that have been following the case of Thomas Drake, the National Security Agency (NSA) whistleblower charged with unauthorized possession of classified information, there may be important new developments.  From the Washington Post's Ellen Nakashima today:

According to people following the case, the government may have to drop two Espionage Act counts that relate to information that Drake submitted to the Defense Department inspector general between 2002 and 2004 to buttress colleagues’ complaints about waste, fraud and abuse of a bungled NSA data-sifting program, Trailblazer. He and his former NSA colleagues thought the complaints were confidential.

The evidence for those two counts is contained in Exhibits 42 and 43, according to the sources. Prosecutor William M. Welch II, in a letter Sunday to Bennett, a U.S. District Court judge in Baltimore, said those exhibits will be withdrawn. The letter was first reported by Politico.

Another exhibit, numbered 41, also consisting of information Drake submitted to the inspector general, is intended to support a third Espionage Act count, which may also be dropped, the sources said. That exhibit will be redacted, the prosecution has said. Two remaining Espionage Act charges relate to information that Drake possessed but that had been published on the NSA’s in-house intranet. Legal experts said Drake could contend that the material was unclassified information that was widely available to tens of thousands of agency employees.

The rest of the charges — one count of obstruction of justice and four counts of making a false statement — are less important, legal experts said. 

We wrote pieces in opposition to the Justice Department's prosecution of Drake yesterday and a few weeks ago (we link to a variety of information in those posts, if you want more). 

Nick Schwellenbach is POGO's Director of Investigations.