The Project On Government Oversight (POGO) Blog

Whistleblower Case Raises Questions about Security of Classified Info in Hands of Contractors

By BRYAN RAHIJA

A previously nonpublic Defense Department (DoD) Inspector General (IG) report obtained by POGO raises questions about the government's effectiveness in overseeing the security of classified material in the hands of defense contractors. Get the full scoop on the report, which involves whistleblower retalation, allegations of an illegal "classified technology library," and the second largest defense contractor, the Boeing Company, over on POGO.org.

Bryan Rahija contributes to POGO's blog.

Finally Some Justice for a Defense Contractor Whistleblower

By SUZANNE DERSHOWITZ

The Department of Defense (DoD) Inspector General (IG) recently validated a contractor whistleblower reprisal for the first time in six years. The IG was able to side with the whistleblower in this special case because the complaint was related to a defense contract involving American Recovery and Reinvestment Act (ARRA) funds. The Recovery Act has excellent protections for employees who face retaliation after blowing the whistle on waste, fraud, and abuse related to stimulus funds.

Unfortunately, that is not the case for other federal contractors and grantee whistleblowers.  Some defense contractors have limited protections, but they are not sufficient. The DoD IG told POGO, "With respect to recent 2409 cases, one was substantiated in 2006. Our records indicate the agency resolution of that case included a payment to the complainant of $25,000." The fact that there hasn’t been a substantiated claim of retaliation in six years (see exhibit on pg. 12) is strong evidence that defense contractor employees face far too much risk when they blow the whistle.

According to the latest DoD IG’s semiannual report to Congress, the complainant in this case was fired for repeatedly disclosing information to government officials—information he reasonably believed was evidence of a violation of law, rule, or regulation related to a defense contract involving ARRA funds.  The employee was retaliated against for blowing the whistle, and the law allowed for the IG to rightly substantiate the reprisal. The June DoD IG newsletter says the government ordered the contractor to reimburse the complainant nearly $60,000 in back-pay.

This company forced employees to sign a statement promising never to disclose certain issues to the government and to only raise such issues internally. However, the rights covered under ARRA’s whistleblower protections may not be swept aside by any agreement, policy, or condition of employment. Other existing DoD contractor whistleblower protections lack that key provision, but the reforms proposed in the Non-Federal Employee Whistleblower Protection Act of 2011 (S.241) and Sec. 844 in the National Defense Authorization Act (S.3254) passed by the Senate Armed Services Committee last month do contain that provision.

OSC Treating Dover Whistleblowers Like the Heroes They Are

By ANDREA ACOSTA

The Office of Special Counsel's (OSC) presentation of Public Servant of the Year awards to three whistleblowers last week represented a turning-point event for the organization and its mission. Following a history of problems, but under new leadership, the OSC made significant progress towards restoring the agency. This event hopefully symbolized a culture-changing statement by publicly awarding those individuals who are so often persecuted for speaking out against wrongdoing.

James Parsons, Mary Ellen Spera, and William Zwicharowski, the whistleblowers honored at today’s event, were recognized for their choice to take a stand against the gross mishandling of soldier remains in the U.S. Port Mortuary in Dover, Delaware. They risked their jobs, their reputations, and their very livelihoods in deciding to blow the whistle, but, as Senator Tom Carper (D-Del.) put it during the ceremony, this particular whistleblower story “is a story that ends well.” Thanks to these three individuals and the work of the OSC, procedures at the U.S. Port Mortuary are being addressed and improved. It’s important that the families of our fallen soldiers can have confidence knowing that their  loved one’s remains will be handled with care and respect. It’s gratifying that the whistleblowers that put themselves at risk have been honored.

The award event featured remarks from the entire congressional delegation of Delaware. Senators Carper and Coons and Representative John Carney each spoke of the selfless courage the whistleblowers demonstrated in placing the public good above their own personal concerns. Sen. Coons, for instance, pointed out how they had “chosen integrity” over what was easy. Sen. Carper echoed this sentiment with his definition of true leadership, learned from his veteran father: “true leaders,” he said, “are those who possess the courage to keep out of step when everyone else is playing the wrong tune.” In addition, Sen. Carper offered his heartfelt thanks to Parsons, Spera, and Zwicharowski for “speaking truth to power.” Rep. Carney found himself “humbled by the courage of the individuals here who did a great service for our country.”

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.”

Office of Whistleblower Protection Programs Needs Sufficient Funds to Realize Government Savings

By SUZANNE DERSHOWITZ

On June 11th, POGO signed onto a letter with Government Accountability Project (GAP) and other allies demanding adequate funding for the Office of Whistleblower Protection Programs (OWPP) at the Labor Department's Occupational Safety and Health Administration (OSHA). OWPP enforces the whistleblower provisions of 21 statutes protecting over 65 million U.S. employees, safeguarding the rights of those who report abuses running the gamut from consumer product violations to fraud in the financial reform sector. The letter went out to the Chairs and Ranking Members of the House and Senate Appropriations Committees and Subcommittees on Labor, Health and Human Services, Education and Related Agencies.

In the last 12 years, Congress has passed 12 new whistleblower protection laws requiring OWPPto conduct initial investigations, but OWPP has not had a meaningful increase in funding corresponding with their new enforcement duties. The Labor Department requested $20.379 million for OSHA’s whistleblower protection programs (an increase of $4.8 million from the FY 2012 appropriated level), and POGO urges Congress to authorize at least that amount in full.

At present, the whistleblower protection program is unable to satisfactorily investigate complaints in a timely manner, and the backlog is growing. This means that individuals who try to blow the whistle on waste, fraud, and abuse have cases that are collecting dust. The Department of Labor’s Office of Inspector General estimated that OSHA needs 45-55 additional full time employees to handle cases within the 90-120 day timeframe required by law. The FY 2013 budget request for OSHA’s whistleblower program would allow OSHA to allocate 37 additional staff, which is a modest increase based on the IG’s estimate of need.

The bottom line: the program needs more resources to protect newly covered workers.

But not everyone agrees that OWPP deserves more funding. According to a Bloomberg BNA article, Chairman of the House Education and the Workforce Committee Representative John Kline (R-MN) opposes the proposed boost for whistleblower enforcement at OSHA.

Study Crushes One Argument for Rep. Grimm's So-Called Whistleblower "Improvement" Act

By DANA LIEBELSON

Rep. Michael Grimm's (R-NY) whistleblower bill—which incinerates the whistleblower protections included in the financial reform act, Dodd-Frank—appeals to businesses that worry employees will go straight outside the company to report wrongdoing. But a new study shows that those fears are largely unfounded. Will Rep. Grimm and the U.S. Chamber of Commerce actually listen?

The report by the Ethics Resource Center, “Inside the Mind of a Whistleblower,” shows that only two percent of employees would report wrongdoing solely outside the company without going to their employer. Additionally, very few employees (about one in 20) said they were motivated to report outside the company by a monetary reward. Other factors, like the seriousness of the crime, carry far more weight in a would-be whistleblower’s decision.  

The Ethics Resource Center surveyed 4,700 working employees in mid-September 2011 for the study, according to The Wall Street Journal.

This report blasts giant holes through the underlying argument behind Rep. Grimm’s Whistleblower Improvement Act of 2011 (H.R. 2483), which requires a whistleblower to first report information relating to misconduct internally before going to a regulatory agency like the Securities and Exchange Commission (SEC).

The argument that is being made for the bill, according to a press release on Rep. Grimm’s website, is that “Dodd-Frank undermines [internal compliance programs] by incentivizing whistleblowers to go directly to the SEC.”

Oh but wait, according to the study, whistleblowers do prioritize reporting internally—84 percent of whistleblowers who reported externally only did so after trying to report internally first. And it’s not as if the SEC is trying to change that fact: the whistleblower program is designed so that a whistleblower is eligible for an award if he or she reports internally.

Lt. Col. Daniel Davis to Speak at Hill Press Conference and Panel Discussion

Lt. Col. Daniel Davis served two deployments in Afghanistan.

By BRYAN RAHIJA

Lieutenant Colonel Daniel Davis, the man who risked his career to raise credible challenges about the Pentagon's rosy depictions of progress in the Afghan war, finally has an opportunity to speak to Congress and the public. The 17-year Army veteran and Ridenhour award-winner is set to give his analysis to Members of Congress today at a 2:00 p.m. press conference and panel discussion.

In his prepared remarks, Davis asked why congressional leaders had not done more to get to the bottom of what conditions were like in the war-torn country:

With all appropriate respect and honor to this body, I must again ask: how could it be that not one committee or sub-committee chairman or chairwoman in the entire United States Congress finds the matter of sufficient importance that they will take action to ascertain the truth?

Davis made headlines back in February after the Armed Forces Journal published a bombshell of an op-ed he wrote titled "Truth, lies and Afghanistan." In the piece, Davis argued that the public wasn't getting the full story about Afghanistan:

Senators Demand Answers on Mishandling of Military Whistleblowers

By ANGELA CANTERBURY and DANA LIEBELSON

Earlier this week we learned how the Pentagon watchdog had let military whistleblowers down--now, Senate heavyweights are asking the Department of Defense (DoD) to get its act together.

Senators John McCain (R-AZ) and Carl Levin (D-MI), the Ranking Member and Chairman of the Senate Armed Services Committee, have sent a letter to Defense Secretary Leon Panetta calling the Pentagon’s failure to protect military whistleblowers from reprisal “a matter of grave concern.” The letter comes on the heels of a Pentagon Inspector General internal assessment (obtained by POGO) revealing that its own investigators mishandled more than half of a set of whistleblower reprisal cases.

In the letter, which has been posted by POLITICO’s Morning Defense, Sens. McCain and Levin asked Panetta “to provide us with a copy of the report and advise us of the actions that have been taken and will be taken to address the problems identified in the report—including steps to re-open any reprisal cases that were inadequately investigated or erroneously dismissed.”

Victory for Taxpayers and Truth-Tellers! Senate Passes Whistleblower Protection Enhancement Act

By DANA LIEBELSON

The Whistleblower Protection Enhancement Act of 2011 (WPEA) passed the Senate yesterday with unanimous bipartisan consent. The bill (S. 743) grants federal workers the protections they need to safely report waste, fraud and abuse. This is fantastic news--in part because taxpayers, who rely on whistleblowers to disclose corruption within the government, are now one step closer towards saving billions of dollars.

But the fight isn’t over yet: now, it’s up to the House to grab the bull by the horns and make this law a reality. The WPEA House companion bill has been stalling since the House Committee on Oversight and Government Reform unanimously passed it in November.

“This is a major step forward for this landmark legislation, which my daughter has dubbed the ‘cat bill’ since it seems to have had nine lives.” said POGO Director of Public Policy Angela Canterbury.

Internal Review Shows Gross Mishandling of Military Whistleblower Reprisal Investigations

If you're a military whistleblower, we wouldn't blame you for feeling like your reprisal complaint went into one of these.

By BRYAN RAHIJA

Pentagon investigators mishandled more than half of a set of whistleblower reprisal cases, according to a damning internal assessment report obtained by the Project On Government Oversight. 

The Washington Post and iWatch News published stories on the assessment over the weekend. 

As POGO Executive Director Danielle Brian told iWatch's R. Jeffrey Smith and Aaron Mehta, "This devastating report proves one of our worst fears—that military whistleblowers have systematically been getting a raw deal."

The assessment evaluates 156 of cases from fiscal year 2010 handled by the Department of Defense office tasked with investigating complaints of military whistleblower reprisal, the Office of Inspector General's (OIG) Directorate of Military Reprisal Investigations (MRI). MRI has since merged with the OIG's Civilian Reprisal Investigations unit to form the Pentagon's Whistleblower Reprisal Investigations unit. 

Among the many reasons that the review team disagreed with MRI's original findings was that it had a broader view of what constituted an unfavorable personnel action against whistleblowers (for example, early redeployment or issuance of letters of counseling) than MRI.

Non-Federal Employee Whistleblower Protection Act Clears Committee

By SUZANNE DERSHOWITZ

On Wednesday, the Senate Homeland Security and Governmental Affairs Committee (HSGAC) passed a bill that would expand much-needed whistleblower protections to all non-federal recipients of federal funds. If passed, it means that any contractor, subcontractor, or grantee who speaks out against the misuse of federal funds may not be discharged, demoted, or otherwise discriminated against as reprisal for blowing the whistle.

POGO has long advocated to protect federal contract whistleblowers and taxpayers, and we have been supporting this legislation since it was first introduced by Senators Claire McCaskill (D-MO) and Jim Webb (D-VA). If passed, the Non-Federal Employee Whistleblower Protection Act of 2011 (S.241) will become one of the most broad-ranging government accountability reforms in history.

“I think we’ve learned over and over and over again that whistleblowers are taxpayers’ best friend,” McCaskill said on the floor on Wednesday, “and we are really missing the boat if we isolate whistleblowers within the government from whistleblowers within the contracting community.”

POGO agrees wholeheartedly.