Whistleblower Protection Blog

IG report says IRS Whistleblower Office falls short and resists audit

Richard Renner — Wed, 16 May 2012 06:41:54 -0500

The Treasury Inspector General for Tax Administration (TIGTA) issued a report that criticizes the Internal Revenue Service (IRS) for dragging its feet in processing whistleblower claims. The report follows up on TIGTA's 2009 report and found, "deficiencies in the IRS’s internal controls and timely resolution of whistleblower claims." Now, three years later, the IRS still has "not fully and adequately" addressed those concerns. Meanwhile, last August the General Accounting Office (GAO) issued a report making recommendations for improvements at the IRS Whistleblower Office. IRS management has promised to implement those recommendations and make a report by October 12, 2012.

In 2009, TIGTA found that the Whistleblower Office was tracking its inventory on three different systems. In response, the IRS had employees manually transfer the data to a single system. However, the IRS did not audit the data to discover and reconcile errors. IRS management responds that no errors have been identified. Readers may wonder, though, if that is because no one looked for errors. IRS management did not allow the TIGTA direct access to the information system, even though the 1978 law creating the TIGTA gives it "authority to access all records, reports, audits, reviews, documents, papers, recommendations, or other material . . .." The 2009 report identified 1,973 claims for which TIGTA wanted to review the tracking data. Without direct access to management's database, TIGTA could not determine how many of these claims are correctly logged into the information system.

Also, TIGTA found that the Whistleblower Office has not yet fully developed standards for timeliness in processing claims. When management trained the staff at the Whistleblower Office, it did not instruct them to check the date a claim was received. According to TIGTA, this point "is critical when reporting business results to internal and external stakeholders."

I find it interesting that the report's chart on page 8 shows that the IRS has no standards for how long it should take to acknowledge receipt of a claim, or for issuing rejection letters to whistleblowers. Under "Steps in the Claims Process," the chart does not even have a line for actual issuance of awards. This blog editor is aware of only one award the IRS has actually made.

The Tax Relief and Health Care Act of 2006 created the mandatory IRS whistleblower award program for tips that lead to recoveries of over $2 million. As a result of the program deficiencies at the Whistleblower Office, the program "is not as effective as it could be" in assisting tax enforcement, reducing the gap between the taxes due and the taxes collected, and in "maintaining the integrity of the voluntary tax compliance system."

The new report is called, Improved Oversight Is Needed to Effectively Process Whistleblower Claims.

Davis wins appeal and appeals court overturns outdated rule to be an "original source"

Richard Renner — Tue, 15 May 2012 11:32:50 -0500

Today, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled in favor of whistleblower Michael Davis and overturned the limitation of that Court's decision in United States ex rel. Findley v. FPC-Boron Employees’ Club, 105 F.3d 675 (D.C. Cir. 1997). In Findley, the Court held that to be an "original source" for a qui tam claim under the False Claims Act (FCA), a whistleblower must make his or her disclosure to the government before there is any public disclosure of the same allegation. Today, the Court recognizes that this holding is inconsistent with the Supreme Court's holding in Rockwell International Corp. v. United States, 549 U.S. 457 (2007). It also recognizes that the Findley holding "bars productive suits." Even where there has been some public disclosure of the alleged fraud against the government, a whistleblower could still come forward with original information that would help the government prove that fraud. Accordingly, it is in the public interest to allow that whistleblower to recover the qui tam award so that other whistleblowers will be encouraged to come forward even after a public disclosure.

Michael Davis used to be an accountant for the District of Columbia. While he was preparing the District's Medicaid claim for special education services rendered in 1998, the District changed accountants. Davis nevertheless completed the claim. He had all the required supporting documentation. However, the District actually submitted a claim prepared by the new accountant without the required documentation. The District collected $10.3 million on that claim. In 2002, the District's Auditor reported that the District had to repay $15 million for three years of overpayments. In 2004, Davis informed the federal government of the District's lack of documentation. The Court recognized that Davis was an original source for the information he disclosed in 2004. However, the Court also held that since the District actually provided the special education services that the Medicaid program paid for, there were no actual damages to the government. Sill, Davis can recover statutory damages for the false certifications about the supporting documentation.

The case is United States ex rel. Davis v. District of Columbia, No. 11-7039 (D.C. Cir. 5-15-2012). Congratulations to Michael Davis and his attorneys Frederick A. Douglas, Curtis A. Boykin and Alex M. Chintella.

This Week on Honesty Without Fear

Lindsey Williams — Tue, 15 May 2012 09:29:50 -0500

Tune in today at 1:00pm EDT to Honesty Without Fear on Progressive Radio Network.

We invited candidates from one of the most hotly-contested House races, incumbent Michael Grimm and Mark Murphy, to come on the show to discuss the Grimm Act (H.R. 2483) with host Steve Kohn. The Grimm Act would reverse the corporate whistleblower protections passed in the Dodd-Frank Wall Street Reform Act. Congressman Grimm did not respond to the interview request, but candidate Murphy discusses his position on the Grimm Act and whistleblower protections.

Additionally, whistleblower Eugene Ross and attorney Jordan Thomas will join Steve to weigh in on how the Grimm Act will impact corporate culture. Eugene Ross blew the whistle on corporate fraud at Bear Stearns, and Jordan Thomas is partner at Labaton Sucharow and former SEC official who worked on drafting the SEC rules for Dodd-Frank.

Submit Your Question to be asked on air during the show or call in to 1-888-874-4888.

Missed last week's episode?? You can listen to the podcast.

Whistleblower Kenneth Jones wins appeal and forces Harvard to trial for research fraud

Richard Renner — Tue, 08 May 2012 12:19:49 -0500

Whistleblower Dr. Kenneth Jones and his wife Priscilla Jones won an appeal yesterday in the U.S. Court of Appeals for the First Circuit. In vacating a summary judgment, the Court held that Jones presented sufficient evidence of fraud to require a jury trial. Dr. Jones claims that Drs. Marilyn Albert and Ronald Killiany fudged brain scans in a project studying Alzheimer's Disease (AD) to support continued federal funding of their research. There project was one of the largest Alzheimer's Disease research grants awarded by the National Institutes of Health (NIH). After the study failed to show positive results, Dr. Killiany re-traced certain areas of selected brain scans to get the positive results they were seeking. They further reported that their data exceeded reliability measures without disclosing that those measures applied to the negative results, not the positive results that came from the retracings. Finally, defendants made a false certification that they complied with the regulations governing investigations into scientific misconduct (42 C.F.R. § 50.103(c)(3)). The case is US ex rel. Jones v. Brigham and Women's Hospital and Harvard University.

Dr. Jones was the chief statistician for the NIH grant. He blew the whistle after realizing that measurements used to demonstrate the reliability of the study had been secretly altered. Without these alterations, Dr. Jones explained, there was no statistical significance to the major findings of the study. After Dr. Jones insisted that the altered measurements be subjected to a reliability study and that the results could not be presented as part of a $15 million federal grant extension application, he was terminated and his career came to an end.

The First Circuit overturned a summary judgment. The First Circuit found that the lower judge had abused his discretion in failing to consider substantial evidence of fraud. This evidence established that Harvard knew of the falsifications and failed to take action to correct or disavow the data. Dr. Jones presented testimony from three experts: a statistician who confirmed that the alterations were responsible for the statistical significance of the study results, a medical researcher who identified that the altered results could not be justified and were changed to establish a predetermined outcome, and a third expert who confirmed that NIH would not have funded the study had the falsity of the data been revealed during the application process and that Harvard failed to adequately investigate allegations of research fraud. The published First Circuit opinion concludes:

the essential dispute is about whether Killiany falsified scientific data by intentionally exaggerating the re-measurements of the EC to cause proof of a particular scientific hypothesis to emerge from the data, and whether statements made in the Application about having used blinded, reliable methods to produce those results were true.

"This is a major breakthrough holding universities accountable for the integrity of reported research results," explained Michael D. Kohn, one of the lead attorneys for Dr. Jones. "Fraud committed to obtain NIH funding not only robs taxpayers, but also sets back long-term medical research goals. The facts of this case indicate that the report of false data misdirected research efforts at other institutions."

Kohn, who also serves as President of the National Whistleblowers Center, continued:

This is a potent example of how employees who risk their careers to do the right thing can hold even the most powerful and prestigious institutions accountable. Bullying and blacklisting scientists by the likes of Harvard to cover-up research fraud represents a terrible disservice to society as a whole.

Congratulations go to Dr. Jones' legal team, including Jeremy L. Friedman, William D. Hughes and Michael Kohn.

Whistleblowers Spur $1.5 Billion Off-Label Marketing Settlement

Owen Dunn — Mon, 07 May 2012 14:56:56 -0500

Whistleblowers have succeeded in a $1.5 billion off-label marketing case against Abbott Laboratories Inc., the Department of Justice announced today. Combined, the $700 million criminal fines and $800 million civil fines are the second largest government recovery from a drug company in history.

The Department of Justice intervened after four whistleblowers filed suit against the company. These plaintiffs provided original information to prove that Abbott marketed a drug called Depakote for controlling agitation and aggression in elderly dementia patients and to treat schizophrenia. However, the FDA had never approved Depakote for either use, and Abbott-sponsored studies showed that the drug was both ineffective in these areas and also potentially dangerous.

“Not only did Abbott engage in off-label promotion, but it targeted elderly dementia patients and downplayed the risks apparent from its own clinical studies,” said Acting Associate Attorney General Tony West. “As this criminal and civil resolution demonstrates, those who put profits ahead of patients will pay a hefty price.”

The fines from these suits are hefty, indeed. Government recoveries are three times the amount of the fraud. Since many crimes are never discovered, though, companies still see an incentive to commit fraud. The Department of Justice's visible and successful cooperation with whistleblowers will force companies to reevaluate their cost-benefit analyses. It is clear, then, that this $1.5 billion settlement is a win for accountability and a win for American health and safety.

Wal-Mart. Whistleblower. Whitewash. Talk Amongst Yourselves.

Donna Boehme — Fri, 04 May 2012 09:57:35 -0500

By Guest Columnist: Donna Boehme
Principal at Compliance Strategists LLC and editor of the weekly CS Newsflash (and former chief compliance and ethics officer at two leading multinationals)

Holy Wal-Mart Whitewash, Batman! Without a doubt, the unfolding Wal-Mart bribery scandal in Mexico (coming soon to a business school case study near you) is ripe for “lessons learned” for governance experts everywhere. But it is also illuminating to drill down a little further and examine the implications from a whistleblower point of view.

It’s true that only some of the facts are known so far, revealed in an exhaustive New York Times 8,000+ word investigative report. But those reported facts are not boding well for the giant retailer. This we know: 1) in 2005, a whistleblower with intimate knowledge of a Mexican bribery scheme (to secure permits and rapidly expand the market share) sent an email raising the flag to the international general counsel 2) although that international GC strongly recommended an expanded independent investigation, she was overruled (and ultimately resigned) 3) the top GC, CEO and “a small group of executives” decided to refer the investigation to the very Mexican GC who authorized the bribes in the first place, who then 5) promptly closed the matter with a finding of “nothing to see here” 6) Wal-Mart decided to “self-report” only after learning of the soon-to-be newspaper expose and 7) none of the execs or legal counsel involved in the handling of the matter have been fired or disciplined, and a few have even been promoted. Whew!

As this tale of corporate whistleblower woe publicly unfolds, what have we learned? Early observations from the whistleblower standpoint:

All internal reporting systems are not created equal.

Why would a widespread bribery scheme, reportedly well-known to Wal-Mart employees and managers in Mexico, fail to be detected and raised to the highest governing authority through existing reporting mechanisms? We now know that the whistleblower first notified the legal department through email. But what about all the other employees “in the know” in Mexico and elsewhere in Wal-Mart? Did none of them trust the internal mechanisms enough to raise the alarm? Or if they did, what happened? And where was the chief compliance officer? So far it is alleged that the 2005 complaint was “hushed up” by the General Counsel and senior execs, and never made it to the boardroom. That’s alarming indeed, but not surprising.

Creating and maintaining an internal reporting system requires a lot more than hiring a third party vendor, turning on the phone lines and hanging posters. Yet I continue to be amazed by the number of Boards and senior management teams who live with a false sense of security simply because they have a hotline or other employee reporting mechanism in place. (See my open letter to boards on this point.) Beyond the initial set-up, companies that are serious about compliance establish and enforce strict protocols for managing internal reports from initial intake to final consequences, whether discipline or process improvement. And this is where the rubber meets the road, as powerful company forces often resist the very processes required for an objective, independent investigation. As I have written elsewhere, Wal-Mart is Exhibit A, B and C for an independent chief compliance officer (i.e. not beholden to the General Counsel or any other corporate officer) who can oversee, among other things, the integrity of the investigation and the overall internal reporting system. See “The Real ‘Happy Marriage’ Between the GC and the Compliance Officer.” An independent CCO with a seat at the table would have been a cautionary voice in the exec decision-making process, and would have had direct, unfiltered access to report the matter to the board. If I were asked to advise a friend or a family member on how to raise a concern, I would recommend that they look carefully at the independence and rigor of a compliance program and internal reporting mechanism before ever pulling the trigger internally.

How a company reacts to internal whistleblowers is a good barometer of corporate culture.

That the Wal-Mart whistleblower tip may have been “whitewashed” in an allegedly sham investigation, underscores one of the prime reasons employees consistently give for not reporting perceived misconduct: the belief that nothing will be done.

Forget codes of conduct, training, CEO speeches and awards for “most ethical company in the universe.” If you really want a good barometer of a company’s culture, and the priority it places on accountability, transparency and ethical leadership, look no further than how internal whistleblower reports are treated. This is tough business for organizations because the natural human reaction to whistleblowers is usually “seek and destroy.” As in:“I’m all for openness and transparency and for blowing the whistle on wrongdoing. Except if the guy is on my team, and then he’s a no good traitor.” The enormous challenge for companies is how to turn this human knee-jerk response into a safe, transparent environment where internal reporting is valued (and not merely tolerated) and tips are expeditiously, confidentially and professionally investigated. Potential whistleblowers are nothing if not observant. Just as they notice misconduct, they also see what happens to those around them who raise their hands. According to the New York Times, after finding the company’s initial interest in his complaint fade away, the Wal-Mart whistleblower said “I thought nobody cares about this. So I left it behind.” How companies react when whistleblowers come forward drives the organizational culture in a direct and lasting way.

Wal-Mart, Dodd Frank aftermath and the Grimm Act: Another bite at the apple?

How Wal-Mart botched the internal whistleblower’s claim is an ironic postscript to the 2011 Dodd Frank whistleblower debate.

Not too long ago, a long list of veritable who’s who in Corporate America, led by the Chamber of Commerce (of which Wal-Mart is a prominent member), lobbied hard against the then-pending Dodd Frank whistleblower rules, in particular against the provision that permitted employees to go directly to the SEC without reporting internally first. The main objection was that the potentially enormous rewards (10-30% of penalties over $1M) would incentivize employees to bypass internal reporting systems, undermine company compliance programs and otherwise cause the sky to fall. See “The Sky Has Not Yet Fallen.” In a smart balancing act, the SEC rejected those objections, but created incentives to encourage internal reporting. Now one year later, that same corporate lobby is attempting another bite at the apple through Grimm Act (House Bill 2483), which would amend the Dodd-Frank whistleblower rules in a second attempt to require internal reporting as a condition to access to the law’s protections and financial rewards.

The Wal-Mart headlines should give legislators considering the Grimm Act serious pause. One of the disconnects in this debate has always been the divergent views on the effectiveness of internal reporting systems. As noted in a 2011 RAND Symposium report on the topic, the corporate lobbyists based their arguments on the premise that these reporting mechanisms were working just fine, thank you very much, and that Dodd-Frank was going to ruin years, even decades, of all that good work. In stark contrast, whistleblower advocates argued that many internal reporting programs might look good on paper, but in reality are so flawed that they fail in their mission. Judging by reports so far, Wal-Mart could well be the poster child for the latter view.

It will be worth revisiting this list of takeaways as more details reach the public domain. At a minimum, the impact of the Wal-Mart spectacle on current efforts to curtail both the Dodd-Frank whistleblower rules and the Foreign Corrupt Practices Act will be interesting to follow. But for now, it’s safe to say that companies may have a lot more work to do on their internal reporting systems, and the controls surrounding investigations and reporting up the chain, before crying “the sky is falling” about the Dodd Frank whistleblower program.

This Week on Honesty Without Fear

Lindsey Williams — Fri, 04 May 2012 09:29:20 -0500

Tune in Tuesday at 1:00pm EDT to Honesty Without Fear on Progressive Radio Network.

Guest Host Dr. David Lewis interviews fellow EPA whistleblower William Sanjour about his recent article "Designed to Fail: Why Regulatory Agencies Don't Work" in Independent Science News. Mr. Sanjour uses his 30 years of experience at the EPA to not only explain the problem, but also to offer some solutions. One of those solutions is to better protect the whistleblowers who raise concerns. Listen to Lewis and Sanjour discuss why administrative regulations are broken and why they failed to prevent events like the BP Oil Disaster.

You can take action to protect whistleblowers by signing the petition.

Submit Your Question to be asked on air during the show or call in to 1-888-874-4888.

Missed last week's episode?? You can listen to the podcast.

DOJ Backs Ink Company Whistleblower

Owen Dunn — Thu, 03 May 2012 16:04:13 -0500

Last week the U.S. Department of Justice announced that it has intervened in a whistleblower lawsuit brought against an ink manufacturer for skirting the payment of import duties. The case against Toyo Ink is still in its early stages, but government intervention is a significant victory for the whistleblower, John Dickson.

When employees are harassed or fired for reporting misconduct, fighting and paying for a whistleblower lawsuit can look seem like an insurmountable challenge. When you imagine this battle of David versus Goliath, you can start to grasp how big this news is for Mr. Dickson's case.

Government funds are, of course, limited. The benefits of False Claims Act investigations like this one, however, are well worth the cost. If the Department of Justice can demonstrate that Toyo Ink did, in fact, cheat its way out of paying import duties on its ink, the company will be forced to pay back the costs threefold. That money pays for the investigation, and it serves as a powerful deterrent to other would-be fraudsters.

Cases like these are great examples of how whistleblowing works. Mr. Dickson's courage to step forward has been recognized with this government assistance. Hats off to the Department of Justice for stepping up to bat for this whistleblower–another American hero.

MSPB holds it can address due process in security clearance cases

Richard Renner — Thu, 03 May 2012 10:54:27 -0500

In two landmark decisions last week, the federal Merit System Protection Board (MSPB) held that it does have the authority to enforce the procedural protections for federal employees who suffer adverse employment actions as a result of issues with their security clearances. The MSPB recognizes that it does not have authority to review the security determinations themselves, respecting the Supreme Court's decision in Department of Navy v. Egan, 484 U.S. 518 (1988). Still, federal employees are "entitled to constitutional due process when the agency indefinitely suspend[s] [them] from federal employment based on a suspension of access to classified information." McGriff v. Department of the Navy, 2012 MSPB 62 (April 26, 2012), p. 12. Special Counsel Carolyn Lerner submitted a most helpful amicus brief urging the MSPB to reach this result. In Buelna v. Department of Homeland Security, 2012 MSPB 63 (April 26, 2012), the Board reached the same result for a federal air marshal working at the Transportation Security Administration (TSA) by applying the agency's Management Directive (MD) No. 1100.75-3. I reported in a 2009 blog post about a federal court decision concluding that Bunny Greenhouse could pursue a claim for her supervisor's refusal to submit her request for a security clearance. The new MSPB decisions represent a significant advance for national security whistleblowers who face shenanigans with their security clearances in reprisal for making lawful disclosures of misconduct by their agencies. Now they have recourse for violations of their due process rights, even if they cannot challenge a security decision about their clearance.

Congratulations to Corry McGriff's attorneys Laura O'Reilly and Neil Bonney of Virginia Beach, Virginia, to Alexander Buelna's attorney, Jeffrey Jacobsen of Tucson, Arizona, and the Special Counsel Carolyn Lerner and her legal staff, including Bruce Fong and Elisabeth Brown.

"Designed to Fail: Why Regulatory Agencies Don't Work"

Lindsey Williams — Tue, 01 May 2012 16:35:43 -0500

Today, Independent Science News published an article by William Sanjour, an EPA whistleblower and NWC Board Member.

In “Designed to Fail: Why Regulatory Agencies Don’t Work,” Mr. Sanjour uses his 30 years of experience at the EPA to not only explain the problem, but also to offer some solutions. One of his suggested solutions is to better protect whistleblowers.

“Congress ought to consider not merely protecting whistle blowers, but rewarding them. When a whistle blower’s charges prove correct, they should be given a cash reward in proportion to the importance of the revelation. Whistle blowers cost much less and are far more effective than salaried government enforcement officials.”

Mr. Sanjour’s article does a great job of explaining why administrative regulations are broken and why they failed to prevent the BP Oil Disaster and the loss of 25 miners’ lives in West Virginia.

“Compare this [EPA enforcement procedures] with what happens when you park under a “No Parking” sign. A policeman writes a ticket, and you can either pay the fine or tell it to the judge. If the EPA wrote the rules for parking violations, the officer would first have to determine if there were sufficient legal parking available at a reasonable cost and at a reasonable distance, and would then have to stand by the car and wait until the owner showed up so that he could negotiate a settlement agreement.”

Mr. Sanjour points out what we know to be true. Employees are the number one way to detect and deter fraud. Therefore, to find fraud you have to protect employees.

Please take a few minutes to read Mr. Sanjour’s article. It will be time well spent.

Chicago Ethics Task Force calls for protecting whistleblowers

Richard Renner — Mon, 30 Apr 2012 15:01:24 -0500

The City of Chicago Ethics Task Force released a report today that recommends that the City strengthen protections for whistleblowers. Mayor Rahm Emanuel appointed the Task Force to improve the City's notorious record on ethics. Cindy Canary of the Illinois Campaign for Political Reform chairs the Task Force.

On page 29, Recommendation 16 notes that the City's Ethics Ordinance does not include "a generally applicable whistleblower provision." It notes that Chicago does have a more general whistleblower protection at 2‐152‐171(b)(1)‐(2), and the Task Force recommends that this ordinance be moved to the Ethics Ordinance. Merely moving the whistleblower provision, however, will not strengthen it. The Task Force cites a 2009 survey by the Ethics Resource Center that found that 60% of City employees did not report misconduct out of fear of retaliation. The Task Force asked the City to publicize its whistleblower protection.

I can also suggest that the City's ordinance expand the scope of protected activity to include any lawful act taken to raise a concern about misconduct, and any refusal to comply with an order to engage in misconduct. The City's current whistleblower protection only protects disclosures to government agencies. Effective whistleblower remedies will include awards of compensatory damages, exemplary damages, attorneys fees and costs, and injunctive relief including reinstatement, expungement and posting.

Recommendation 15 could also become a concern for whistleblowers. The Task Force wants the City Council to require that all employees report all misconduct they observe. This type of requirement can be used by managers to punish whistleblowers. They could say that the employee did not report the misconduct fast enough, or through the right channels. If the City Council considers this recommendation, it should be mindful that the better policy will always leave every door open to those who want to raise their concerns.

Missouri House passes "Whistleblower's Protection Act" that would actually lessen whistleblower protections

Richard Renner — Fri, 27 Apr 2012 11:22:33 -0500

Yesterday, the Missouri House of Representatives passed a bill called the "Whistleblower's Protection Act," H.B. 2099. This bill is actually an attempt to weaken the protections Missouri courts already afford to whistleblowers. Like courts in most states, Missouri courts recognize a common law tort claim for employees discharged in violation of a clear public policy. See Entwistle v. Missouri Youth Soccer Association, Inc., 259 S.W.3d 558, (Mo.2008). The Republican controlled legislature passed a similar bill earlier in the year, but Democratic Governor Jay Nixon vetoed it. According to an Associated Press (AP) story, the present bill is slightly less severe than the prior bill.

Still, H.B.2099 would limit punitive damages, exempt governmental agencies, and prohibit courts from expanding protections under the common law. The bill's definition of a "protected person" does not make clear that employees would be protected if they raise a concern based on a reasonable belief of a violation. Courts might require employees to actually prove the violation to receive any protection. The bill also fails to specify a protection for those employees who raise concerns based on health, safety and environmental issues. The bill offers no assurance that employees could reach the courthouse if their employer uses forced arbitration agreements. The bill makes no provision for awards of attorneys fees, litigation costs and expert witness fees.

The bill's sponsor, Rep. Kevin Elmer, told the AP that his bill would provide clarity for businesses. He tacitly concedes that his bill does more than clarify existing law. "We're trying to balance the rights of individuals and the right to earn a living," said Elmer. Any "balancing" that wants to protect the public from frauds and dangers would make sure that all whistleblowers are fully protected. It remains to be seen if the bill can pass the Missouri Senate, and override an expected veto. We could also advance the cause of "clarifying" whistleblower protections for businesses by having the federal Congress pass a gold standard whistleblower protection for all employees.

The Growing Power of the NSA

Owen Dunn — Thu, 26 Apr 2012 08:37:49 -0500

We may be much closer to living in an Orwellian state than many think, suggests William Binney, a National Security Agency (NSA) whistleblower. Binney served as an NSA employee for almost 40 years, including time as technical director of the NSA’s World Geopolitical and Military Analysis Reporting Group, before leaving his post in October of 2001. In his first interview since he quit his job because of the domestic surveillance program, he sat down with Democracy Now! to discuss the NSA’s colossal power to spy on Americans.

Binney interviewed with two other individuals who have been frequent targets of government surveillance: Laura Poitras, an Oscar nominated documentary filmmaker, and producer and Jacob Appelbaum, a computer security researcher and Wikileaks volunteer. Both have been interrogated and regularly detained upon entrance into the United States. Their computers, cameras, and cell phones have been seized and presumably copied.

William Binney began the conversation discussing the role of the NSA and how its operation drastically changed post 9/11. After the 2001 attacks, the NSA began collecting roughly 320 million records of US –to- US citizen communication from commercial companies, largely AT&T. After this occurred, Binney “knew [he] could not stay there” and “had to leave.” Not only did this collection infringe upon constitutional rights, it also violated the Pen Registry Act, the Stored Communications Act, the Electronic Privacy Act, and the Intelligence Acts of 1947 and 1978.

With knowledge of the illegal data collection that was occurring, Binney and a few colleagues filed a DOD-IG report to the Pentagon and Inspector General reporting on the corruption, waste, fraud, and abuse that was occurring at the NSA. Because his signature was on this document, his home was raided on July 26, 2007, with his family present. Roughly a dozen FBI Agents entered his residence with guns drawn. He was separated from his family and interrogated.

Binney believes that the US government has copies of many or almost all e-mails sent in the United States. He also mentioned that surveillance has increased under the Obama administration. In his own assessment, Binney estimates that 20 trillion transactions between US citizens have been accumulated. This only accounted for phone calls and emails, no credit card transactions, online searches, etc.

The NSA is quietly building the largest spy center in the country in Bluffdale, Utah. This facility will become a bottomless database of information stored by the agency, including private emails, cell phone calls, google searches, and other personal data. Binney was a key source of James Bamford’s recent exposé in Wired Magazine’s article surrounding the Bluffdale center.

Laura Poitras reports in her interview that she has been detained a staggering 40 times at the U.S. border. This detention began in 2006 when she started working on a series of films reflecting upon the U.S. post 9/11. Similarly, Jacob Appelbaum has been searched and detained at the border since 2010. He tells Democracy Now! that he has been interrogated about a dozen times. On one occasion, Appelbaum had his laptop and cell phone confiscated. When asked to further explain the situation and enlighten the audience as to why these items were seized, Appelbaum stated that he could not talk about that situation because “we don’t live in a free country.”

National security whistleblowers have a rocky road ahead of them after they blow the whistle. They have very few, if any rights. National security whistleblowers risk losing their security clearance and under the current administration, they risk criminal prosecution under the Espionage Act (see our blog posting on Thomas Drake to find out more on this issue).

If Americans want to know what abuses are occurring within the intelligence community, we must pass strong, sustainable whistleblower protection rights for national security employees. Those uncovering the waste and fraud must have a secure avenue to report violations that harm the public and waste taxpayer money.

*Intern Kara Gleason contributed this article

This Week on Honesty Without Fear

Lindsey Williams — Tue, 24 Apr 2012 08:57:00 -0500

Tune in today at 1:00pm EDT to Honesty Without Fear on Progressive Radio Network.

In the first half hour, Michael Kohn interviews Jim Bobreski, an Instrument and Control Technician who blew the whistle on the District of Columbia's water department for intentionally disabling the safety alarms on chlorine tanks kept within a mile of the U.S. Capitol. In 2005, a Department of Labor judge ruled that Mr. Bobreski was illegally fired, and that the District's Water and Sewer Authority was responsible for causing his discharge. Hear about his struggle to protect public health and safety.

In the second segment, Richard interviews Robert M. Danno, a whistleblower at the National Park Service (NPS). Mr. Danno is a decorated Park Ranger whose career was stunted after objecting to the destruction an NPS forest just to give Redskins owner Dan Snyder a better view of the Potomac River from his luxury home in Maryland. Mr. Danno discusses his experience, which is the subject of his new book, Worth Fighting For: A Park Ranger's Unexpected Battle against Federal Bureaucrats & Washington Redskins Owner Dan Snyder. Read a review of the Mr. Danno's book by the Association of National Park Rangers.

You can take action to protect whistleblowers by signing the petition.

Submit Your Question to be asked on air during the show or call in to 1-888-874-4888.

Missed last week's episode?? You can listen to the podcast.

Dr. Frederic Whitehurst and the Failed FBI Crime Lab

Owen Dunn — Tue, 17 Apr 2012 16:01:43 -0500

Washington Post readers found out this morning that the Justice Department has been withholding information for years about hundreds or even thousands of cases that were tainted by faulty forensic work in the FBI Crime Lab. The front-page feature was based in large part on the work of Dr. Frederic Whitehurst, an NWC Board Member who was one of the FBI’s top scientists during the period of misconduct.

For those of you just now learning about Dr. Whitehurst, I highly recommend the following clip from CBS News, recorded in 1998:

CBS News recorded this piece just after the Justice Department Inspector General validated Dr. Whitehurst’s concerns of Crime Lab misconduct. The Inspector General report could have settled the issue, but the problems that Dr. Whitehurst reported, starting with his first whistleblower disclosures over 20 years ago, unfolded into the deep, drawn-out tragedy described in today’s Washington Post.

Read the rest of this post for more details about Dr. Whitehurst’s story and to discover more media coverage from his decades-long attempt to protect American citizens from their government.

Dr. Whitehurst uncovered systemic problems in the FBI Crime Lab in the early 1990s. What he discovered is remarkable—and unsettling. In case after case, the lab’s analysis was not providing accurate results, and these results were used to tip the scales of justice. Nobody, except perhaps the Justice Department, knows how many people were sent to prison based on these mistakes. And the Justice Department has kept its lips sealed.

In theory, the Justice Department knows exactly who has been affected by the Crime Lab errors. In 1996 it formed a Task Force to investigate thousands of potentially-tainted cases, but it never revealed the results. Dr. Whitehurst continued to press the Justice Department to release the results of the Task Force review for years, and he finally succeeded in prying open their tight grasp only after filing a Freedom of Information Act (FOIA) lawsuit.

If the Primetime Live piece whetted your appetite for information about this scandal, there are many more articles and videos out there for you. To get started, check out the NWC's page with more news about Dr. Whitehurst and the New York Times archive of articles about him.

One New York Times piece from 1997 is worth a look. It is aptly titled, “F.B.I. Whistle-Blower Pledges To Correct Mistakes of Justice.” Here we are fifteen years later.

I’ll leave you with this powerful clip from Primetime Live, recorded in 1995. This is fourteen minutes well spent:

NWC to Testify on New York City False Claims Act

Owen Dunn — Fri, 13 Apr 2012 15:56:09 -0500

This Monday, April 16, 2012, NWC Director of Advocacy & Development Lindsey Williams will testify before the New York City Council in support of strengthening whistleblower protections included in proposed legislation, including the local False Claims Act. The hearing will commence at 10:00am in the 16th Floor Committee Room, 250 Broadway, New York, NY.

The City Council will broadcast a live webcast of the hearing.

New York is one of the few cities that has passed its own local False Claims Act in addition to state and federal versions of the law. The local law is up now up for reauthorization, with proposed amendments that would update the definition of an “original source” and also increase the whistleblower’s share of the recovery.

In addition, Council Member Dan Garodnick has sponsored two bills that expand whistleblower rights. His first bill extends whistleblower protection to employees of city contractors, and his second bill requires city contractors to post information about whistleblower protections included in the local, state, and federal False Claims Acts.

Council Member Gardodnick will discuss the bills and the hearing in more detail during an interview on Honesty Without Fear, live this Tuesday, April 17, 2012, at 1:00pm.

We’ll post a round-up of the hearing here on on the Whistleblower Protection Blog, so stay tuned.

RTTV Covers FBI Censorship of Sibel Edmonds

Owen Dunn — Wed, 11 Apr 2012 10:10:04 -0500

NWC Executive Director Stephen Kohn appeared live on RTTV last night to discuss the treatment of national security whistleblowers under the Obama administration. Specifically, RTTV asked him about the FBI's attempts to censor Sibel Edmonds as she attempts to publish a book about her experience blowing the whistle at the Washington Field Office.

How does Obama's record on whistleblowers compare to that of the founding fathers? The answer might not be what you think. Here's the full interview:

FBI Attempts to Hold Sibel Edmonds' Book Hostage

Lindsey Williams — Tue, 10 Apr 2012 09:06:20 -0500

For nearly a year, the FBI has attempted to prevent the publication of whistleblower Sibel Edmonds' new book, Classified Woman: The Sibel Edmonds Story.

On April 26, 2011, Ms. Edmonds followed official procedure and submitted her manuscript to the FBI for pre-publication clearance. Under the terms of her employment agreement and controlling regulations, the FBI was required to review and approve the submission within thirty (30) days. Instead of complying with the law, the FBI intentionally stalled the approval process for over 341 days and has still refused to "clear" the book for publication.

Ms. Edmonds will speak today for the first time about the FBI's attempts to suppress her book. The interview will be aired live at 1:30pm ET on Honesty Without Fear, and the podcast will also be available for download.

Today, the NWC is released documentation confirming that the FBI required employees, including Ms. Edmonds, to sign the illegal contracts that allowed the FBI to censor issues of "public policy" it found embarrassing. According to Ms. Edmonds attorney, Stephen M. Kohn, "the controlling law strictly limits government's ability to censor its employees. Agencies like the FBI may require pre-publication review of its employees' writings, but may only censor classified or secret information. The government may not censor books or other writings on 'policy' grounds. The FBI's employment contract with Ms. Edmonds is overreaching and illegal." Additional documents demonstrate that the agency acted illegally to prevent Ms. Edmonds from publishing a manuscript that might embarrass the agency.

To read the rest of today's press release please click here.

This Week on Honesty Without Fear

Lindsey Williams — Tue, 10 Apr 2012 08:33:26 -0500

Tune in today at 1:00pm EDT to Honesty Without Fear on Progressive Radio Network.

In the first half hour, Steve Kohn and Donna Boehme, Principal at Compliance Strategists LLC and editor of the weekly CS NewsFlash discuss the first six months of Dodd-Frank and why arguments by General Electric that an employee is not protected from retaliation unless they go to the SEC are counter-productive to the company’s long-term interests.

In the second segment, Steve Kohn interviews whistleblower Sibel Edmonds about her current battle against the FBI. The FBI has spent enormous resources to prevent Ms. Edmonds from publishing a book about the serious security breaches and cover-ups she witnessed while working in the FBI’s Washington Field Office. Call in to ask about her experience, and tune in to find out about her long-awaited book, Classified Woman: The Sibel Edmonds Story.

You can take action to protect whistleblowers by signing the petition.

Submit Your Question to be asked on air during the show or call in to 1-888-874-4888.

Missed last week's episode?? You can listen to the podcast.

NWC Condemns CIA Whistleblower Indictment

Owen Dunn — Fri, 06 Apr 2012 14:18:31 -0500

The Department of Justice’s policy of distorting privacy laws to pursue and discredit whistleblowers continues. The Associated Press reported yesterday that a former CIA officer, John Kiriakou, is being charged with leaking classified information after publicly expressing concerns over the use of torture during interrogations.

The National Whistleblowers Center obtained a copy of the indictment, available here.

In the indictment, the DOJ argues that because the interrogation “operation fell within the scope of a CIA counterterrorism program,” all details are therefore critical “national defense information.” Using this type of circular logic and vague, umbrella terminology is now standard practice for the Department of Justice as it works to hide serious legal and ethical allegations, including those made by Mr. Kiriakou in this case.

Stephen M. Kohn, Executive Director of the National Whistleblowers Center, stated:

We condemn Mr. Kiriakou’s indictment. The First Amendment means what it says; freedom of speech exists in the United States regardless of the wishes of extremists at the DOJ and CIA who are using outrageous charges to attack whistleblowers. These charges should be dropped immediately, and an investigation should instead be made into those responsible for them.

You can read more about the government's treatment of national security whistleblowers in the recent Whistleblowers Protection Blog article, "Washington Times Covers the Department of no-Justice."