Taking Back Our Stolen History
Whistleblower
Whistleblower

Whistleblower

Limited Statutory Protections

A complex patchwork of laws and executive orders apply to national security whistleblowers: chiefly, the Whistleblower Protection Enhancement Act, the Intelligence Community Whistleblower Protection Act and Presidential Policy Directive 19. Even taken together, these have numerous gaps and flaws.

WPEA

The Whistleblower Protection Enhancement Act (WPEA) prohibits the government from taking adverse personnel actions against government employees who make protected disclosures. “Retaliation” covers actions like unwarranted transfers, demotions, pay cuts or termination. These sanctions often involve career-ending side effects that cannot effectively be challenged or remedied under the WPEA, from revocation of security clearances, to blemished personnel records, to blacklisting. A complicating factor in defending national security whistleblowers arises from the classification system, which can be byzantine in its complexity.

Moreover, the WPEA does NOT apply to employees in positions of a “confidential” or “policymaking” nature — a wide swath of national security whistleblowers. Nor does it apply to anyone in the FBI, CIA, NSA, nor any other executive body engaged in primarily foreign intelligence or counter-intel activity (the FBI has its own regulatory system, which suffers from a number of fatal flaws). It seems counter-intuitive, but the most comprehensive whistleblower protection law does not cover some of the better-known national security whistleblowers: Edward Snowden and Thomas Drake (NSA), John Kiriakou (CIA), Sibel Edmonds (FBI) and Chelsea Manning (Army intelligence).

ICWPA

The Intelligence Community Whistleblower Protection Act (ICWPA) may cover some employees who are not covered by the WPEA. It allows them to report an “urgent concern” (even one involving classified information) to the agency’s Inspector General and, ultimately, to the congressional intelligence committees. However, this is a problem because many Offices of Inspectors General, which are independent watchdogs within federal agencies, have been left vacant for extended periods of time. Additionally, the ICWPA does not provide employees with protection against retaliation if they make such disclosures. More ominously, Inspectors General have a sordid history of retaliating against the very employees that they are supposed to protect. The Trump administration seems to be waging a bureaucratic battle to gut the Intelligence Community Inspector General completely.

PPD-19

Presidential Policy Directive (PPD-19) is an executive order that requires intelligence community agencies to provide employees with protection from retaliation if they disclose classified information to a supervisor, their agency head, the relevant Inspector General, or the Director of National Intelligence. However, it is rife with gaps. If disclosures through approved channels prove unsuccessful, there is no provision for disclosure outside the agency or intelligence committees. Obviously, whistleblowing is unlikely to have much effect in cases where the agency itself is complicit in the wrongdoing. PPD-19 does not apply when an agency head determines an employee should be fired for ”national security” reasons. Nor does it apply to employees in positions of a “policymaking” nature, or to members of the Armed Forces, like Chelsea Manning or any of the Air Force personnel who blew the whistle on abuses in the drone program.

Of course, the above-mentioned protections only apply to administrative and employment retaliation. As punitive as these measures are, they do not rise to the level of trying to incarcerate someone — a chilling new trend. Unfortunately, the government’s failure to ensure safe internal channels for whistleblowers, and its selective enforcement of leaks, show that it is more concerned with hiding its own ineptitude or lawbreaking than it is with protecting information that might truly put Americans at risk.

The pretext of protecting national security is most clear when contrasting the harsh treatment of legitimate whistleblowers who exposed gross abuses of public trust with the kid-glove treatment given to officials who released classified information for personal or political purposes, like General Petraeus who gave classified material to his journalist-girlfriend, or CIA Director Leon Panetta who revealed classified information to the filmmakers of Zero Dark Thirty.

Source: Society of Professional Journalists

Not Only is there an Attack on Whistleblowers, The Deep State is Attacking the Lawyers that Represent Them

The DC Disciplinary Counsel — previously known as the DC Bar Counsel — is on the attack against whistleblower lawyers. The Disciplinary Counsel has filed charges against prominent Washington whistleblower lawyer Lynne Bernabei and former Justice Department attorney Thomas Tamm. The Disciplinary Counsel brought charges in June 2014 against Bernabei and Notre Dame Law Professor G. Robert Blakey — alleging that the two advised their client — former General Electric lawyer and whistleblower Adriana Koeck — to go public to reporters and law enforcement officials in the United States with incriminating and alleged confidential information against General Electric.

The case was initiated with a complaint filed by General Electric with the Disciplinary Counsel against Koeck. In November 2015, Blakey was given the mildest possible sanction in the District — an admonition. The cases against Koeck and Bernabei are pending. Last month, Tamm was charged with calling a reporter from a pay phone to make public the federal government’s program of illegal wiretapping. Now, the whistleblower bar is organizing to push back at what they see as an ideological attack on whistleblower lawyers.

“We have rolled up our sleeves and we are organizing,” Tom Devine of the Government Accountability Project told Corporate Crime Reporter in an interview last week. “We are not going to be passive.”

“These whistleblowers were acting within the legal rights Congress created with the whistleblower statutes,” Devine said. “In the Tamm case, the government didn’t even attempt to charge him with misconduct. His activities were legally protected. In the Bernabei case, the Department of Labor rejected the same charges when General Electric tried to censor Ms. Bernabei’s advocacy for the whistleblower in government proceedings. This is an attack by the DC Bar Counsel on the constitutional authority of Congress and the President to enact the rules of law and for judicial bodies to enforce them. The Bar Counsel is saying that its standards trump and can cancel out the free speech rules that our government has enacted to protect the public against bureaucratic misconduct.”

Former Justice Department official and whistleblower lawyer Jesselyn Radack told Corporate Crime Reporter that the Disciplinary Counsel “has a nasty history of politically-motivated bar discipline, especially against whistleblowers and attorneys for whistleblowers.”

“Like Thomas Tamm, I blew the whistle as a Justice Department attorney,” Radack said. “As with Tamm, the federal criminal case against me closed with no charges ever being brought. Afterwards, we both faced charges from the Maryland Bar, which were dismissed in a timely fashion. However, in my case, the DC Bar charges hung like a Sword of Damocles over my head for ten years. We see the exact same pattern with Tamm. The DC Bar is bringing charges 12 years after his revelation of the government’s unconstitutional and illegal warrantless wiretapping program.”

“If Tamm or I were threats to the public, the Bar would obviously want to pull our licenses as soon as possible — instead, they have taken it upon themselves to act as a retaliatory tool of the Justice Department.”

Washington University Law Professor Kathleen Clark said that “Tamm’s disclosure of the surveillance program to a Capitol Hill staffer and to the New York Times appears to be a quintessential public interest disclosure.”

“Tamm — and others within the Office of Intelligence and Policy Review (OIPR) — believed that the program was illegal,” Clark said. “Officials at the highest levels of the Justice Department had nonetheless purported to authorize it. Tamm spoke with supervisory lawyers within OIPR about it, and they apparently confirmed its illegality but weren’t doing anything about that illegality.”

“After the New York Times published articles about the program, members of Congress were up in arms about it. Eventually, Attorney General Holder acknowledged that the program was illegal.”

“It seems strange that DC’s Disciplinary Counsel would bring these charges against Thomas Tamm for his critical role in the disclosure of an illegal government surveillance program. It’s even more strange that they decided to do this more than seven years after Tamm’s role was made public.”

Whistleblower lawyer Jason Zuckerman told Corporate Crime Reporter that “as a whistleblower advocate, I am concerned about what appears to be an ideological crusade against whistleblowers and their counsel.”

“The ostensible mission of Bar Counsel is to ‘protect the public and the courts from unethical conduct by members of the D.C. Bar,’” Zuckerman said. “But despite limited resources and a backlog resulting from receiving approximately hundreds of complaints a year, the highest priority of Bar Counsel appears to be prosecuting whistleblowers and their attorneys.”

“In the Tamm matter, the conduct occurred in 2004 and in the Bernabei matter, the conduct took place in 2008. And even though the disciplinary process in DC is complaint driven, Bar Counsel chose to prosecute Bernabei without having received any complaint about her conduct in that matter. It seems very suspicious that Bar Counsel is devoting such significant resources to prosecuting Bernabei and Tamm, especially where the alleged conduct appears to fall into a gray area, if there was any violation at all, which makes it very difficult for Bar Counsel to prove by clear and convincing evidence that Bernabei and Tamm knowingly violated the Rules of Professional Conduct.”

“There seems to be a double standard. Has Bar Counsel ever prosecuted any attorneys at corporate firms that help their clients perpetrate fraud? And did Bar Counsel investigate prominent lawyer executives at Fannie Mae who appear to have engaged in actions that led to a multi-billion dollar restatement and left taxpayers footing the bill? Did Bar Counsel prosecute the attorneys that enabled large banks to nearly tank the economy? And has Bar Counsel prosecuted government attorneys that enabled torture and other flagrant unlawful human rights violations? Does Bar Counsel protect the public or does it protect the interests of big corporations and big government?”

“About one week ago, 60 Minutes aired a show in which they caught lawyers, including a former American Bar Association president, providing advice on how to move suspect money into the United States,” Zuckerman said. “Is it Bar Counsel’s position that lawyers that take steps to combat or oppose fraud should be disbarred and that lawyers that enable corporate fraud are the pinnacle of the profession? I resent that my mandatory bar dues are used to fund an office that is zealously prosecuting corporate and government whistleblowers while apparently ignoring a serious problem in the legal profession of attorneys perpetrating and enabling massive frauds.”

“What is especially odd in the Bernabei matter is that Bar Counsel is taking positions that are contrary to federal law and Supreme Court precedent. Several federal courts and indeed the Supreme Court in Lawson v. FMR have held that attorneys can bring Sarbanes-Oxley claims when they suffer retaliation for blowing the whistle. Yet in the Bernabei matter, Bar Counsel appears to claim that federal law does not preempt inconsistent state rules of professional conduct. Advancing this bizarre legal argument is an odd use of Bar Counsel’s limited resources.”

At the center of the storm is Assistant Disciplinary Counsel Hamilton P. Fox III, who is bringing the charges against Bernabei and Tamm. Fox is a former partner at Sutherland Asbill. He currently teaches a course at Georgetown Law Center titled “Counseling the Corporation in Crisis.” While at Sutherland Asbill, Fox represented the Israeli spy Jonathan Pollard. And a couple of years ago, he settled a high-profile run in he had with DC police over a parking dispute. Fox says DC wrote him a check for $80,000 to settle the dispute.

Fox told Corporate Crime Reporter that there is no ideological crusade against whistleblowers. Fox said that out of the thousands of cases investigated over the past ten years by his office, he knows of only two brought against whistleblower lawyers — the Bernabei cases and the Tamm case. Fox says that there have been many more brought against corporate lawyers. “I can think of at least three lawyers in major law firms whom we have disciplined in recent years,” Fox said.

“And it’s simplistic to say that we are trying to trump federal law,” Fox said. “Federal law does not give lawyers the right to violate attorney-client privilege. If you hired a lawyer and disclosed to him something very bad that you have done, do you want that lawyer to be free to disclose to the public?”

Fox said that his office gets about 500 to 600 complaints about lawyers every year. “If you go back ten years, that’s about what — 5,000 complaints?” Fox said. “And so far, we have brought two cases against whistleblower lawyers?”

“How is that a crusade?” he asked.

Fox says that if a lawyer hears from a client about activity that poses immediate risk to human health, then they would have a duty to report that to law enforcement and go public with it.

“But that’s different from the kinds of corporate wrongdoing — like misleading advertising — it depends on what the misconduct is,” Fox said.

“If the lawyer hears — I’m going to shoot my wife, you can disclose,” Fox said. “If the lawyer hears — I’m going to divorce my wife, you can’t.”

What about rampant corporate bribery?

“I actually had such a case when I was in practice,” Fox said. “I found out that agents of my client company were bribing people in a foreign country to get licenses. If I have actual knowledge of that, under rules of professional conduct, I’m required to report that up the chain within the company, to the board and to give them the opportunity to correct. If they do not correct it, then I am allowed to report it outside the company, only if to prevent the client from committing the crime or fraud and if it is reasonably certain that substantial financial injury will occur to someone else. If it is simply that some government official in some foreign country is being enriched, I cannot report it.”

“That’s the premise of our profession,” Fox said. “We withhold the secrets of our clients.”

Sarbanes-Oxley imposed a different standard, Fox admits — “probably under SOX I report to the SEC — but overall — this area of law has not yet been settled.”

Disciplinary enforcers like Fox don’t have prosecutorial discretion and thus can’t launch vendettas, he says. Every case he brings has to be approved by a superior. But he admits that in most cases, his recommendations are approved.

Devine counters that the DC Disciplinary Counsel has “gone rogue”.

“The DC Bar Counsel has gone rogue in a back door attack on the rule of law as established by our Constitution,” Devine said. “It is also ignoring federal pre-emption. Prior DC Bar Counsel opinions had respected preemption and said they could trump its internal bar rules.” (Source: Counterpunch)

The UN Persecution of Whistleblowers

After decades of persecuting whistleblowers who expose everything from fraud and corruption to the widespread rape of children by so-called “peacekeeping” troops, the United Nations’ scandalous efforts to silence and crush those who blow the whistle on wrongdoing are slowly creeping into the limelight. The explosive case of Anders Kompass, who exposed rape of children by peacekeepers in the Central African Republic and faced retaliation from the UN’s top leadership, drew headlines and outrage worldwide. But the Kompass case was merely the tip of a gigantic iceberg with massive implications — not just for honest UN workers, but for humanity as a whole. And unless serious actions are taken to stop it, the problems will keep getting worse.

Experts, researchers, and critics say the infamous targeting of officials who expose crimes within the UN helps to protect and enable the criminals and the corrupt culture that permeates the global organization. With those honest employees who want to blow the whistle on crimes understanding full well that to do so will almost certainly lead to retaliation and potentially even personal ruin, UN bosses and troops are largely free to do whatever they feel like. Add in their deeply controversial “diplomatic immunity,” and working for the UN essentially becomes a license to commit crimes with impunity. Yet, there is a price to be paid — primarily by the victims of the UN, often children and other vulnerable people, and the taxpayers forced to continue funding the corruption and crime.

Indeed, according to UN whistleblowers, some of whom have reached out to The New American, corruption and secrecy have become endemic in the global organization. After all, the outfit refuses to police itself, purports to be beyond the reach of national authorities and criminal justice systems, and terrorizes would-be whistleblowers into silence. Even the UN’s supposed “whistleblower protection” schemes, adopted after a global wave of outrage about a decade ago surrounding the infamous “Oil-for-Food” scandal, are pathetic, according to whistleblowers and their advocates. Indeed, figures compiled by the non-profit Government Accountability Project (GAP), which works to protect whistleblowers around the world, revealed that between 2007 and 2010, the UN failed to protect more than 98 percent of whistleblowers from retaliation.

The dismal track record continues to this day. For instance, a recent article by the left-wing U.K. Guardian, which is generally strongly supportive of the UN and its agendas, revealed that the UN “ethics office” had received 447 reports from UN whistleblowers saying they had faced retaliation for exposing wrongdoing. Data compiled by GAP, the whistleblower organization, showed that the UN office had completed reviews into less than 140 of those, the paper reported in its article, headlined “Ostracised, sacked … and even arrested: the fate of whistleblowers at the UN.” Of those, the UN determined that there had been retaliation in just four cases — “a statistic that is hardly encouraging to those who feel bound to report corruption, malpractice or sexual abuse,” the Guardian reported.

“The percentage of whistleblowers who actually receive relief through this channel remains abysmally low,” Bea Edwards, the international director of GAP, was quoted as saying, echoing criticism of the UN that has been growing steadily over a period of many years. “We’re now working with UN whistleblowers who have simply resigned rather than endure such a protracted and complex internal process.” Indeed, last year, GAP compiled a shocking report examining representative cases in which the UN or its various tentacles retaliated against whistleblowers. Among other concerns, the sample cases reveal that retaliation against whistleblowers is a systemic occurrence that spans the entire UN system, and that so-called “protections” for those who expose corruption are essentially useless except as a tool for public consumption.

Perhaps the most well-known example of the problem surrounds the case of Kathryn Bolkovac. The Nebraska police officer, working for U.S. defense contractor Dyncorp at the time, served in Bosnia as a UN peacekeeper after the war in the late 1990s. While there, Bolkovac uncovered a sex-slavery and child- and human-trafficking ring involving UN forces, her employer, and local sex-slave traders. Like any person with a conscience, Bolkovac tried to blow the whistle. Instead of celebrating her as a hero and immediately rescuing the sex-slaves and arresting the human traffickers, however, UN bosses did everything possible to keep the scandal under wraps and destroy the American woman who exposed them. She was fired, though a British court eventually found that she had been improperly dismissed. A few years ago, a movie was made based on her story, entitled The Whistleblower, that helped raise global awareness of her plight.

Almost three decades later, though, the UN continues to terrorize whistleblowers who expose UN troops or employees raping children, stealing money, slaughtering civilians, sexually exploiting locals, abusing their power, and other grotesque crimes that continue to be exposed on a regular basis. Kompass, the UN official who handed French authorities information on peacekeepers raping children in Africa, for example, was promptly fired and escorted from his office under armed guard. Leaked e-mails later revealed that the very top echelons of UN leadership conspired with each other at a secret gathering in Turin, Italy, to destroy him. Only after his case became an international scandal did UN boss Ban Ki-moon appoint a “panel” of cronies to “investigate” the whole affair. But aside from the widespread publicity it has received, the Kompass case is hardly unique.

An American whistleblower working for a U.S. government contractor in Haiti, for instance, tried in vain to expose and stop horrifying sexual abuses perpetrated by UN troops and police in Haiti against women and children. Identified only as a 38-year-old woman, the whistleblower was told by Haitian refugees living in a camp that UN police were “taking advantage” of women there. Apparently a UN police supervisor was also involved in sexually abusing civilians. Less than a month later, the same whistleblower learned of the brutal assault on a cleaning woman by a UN soldier from Bangladesh. Separately, UN troops and their commander were exposed raping a mentally challenged boy, starting at age 8, for five years. Instead of dealing with the crime spree and punishing the perpetrators, UN officials, including the very people involved in terrorizing and raping Haitians, demonized and attacked the whistleblower. Eventually she was fired, too.

There are potentially hundreds of similar instances of UN retaliation against those who exposed UN crimes, ranging from arrests and searches to destruction of careers and being stationed in far-flung corners of the world. And because UN bureaucrats know that, even those who would be inclined to blow the whistle on criminal activity realize the futility of it — and so, choose to remain silent. “Until the UN can show that it has a credible record of protecting whistleblowers, employees who are aware of sexual exploitation, or other human rights abuses, in peacekeeping operations are likely to remain silent,” GAP’s Shelley Walden explained after the hit movie told Bolkovac’s story. “As a result, opportunities to curb atrocities similar to those depicted in The Whistleblower will continue to be lost.”

Speaking to the Guardian, another UN employee who tried to blow the whistle also lambasted the UN’s alleged protections for whistleblowers. “It is all window dressing,” the UN staffer, who requested anonymity, was quoted as saying. “The offices within the UN that are supposed to protect staff members do the very opposite. They side with and report to management. For example, office of staff legal assistance and the ethics office, neither of which are independent. And you cannot appeal decisions of the supposedly independent ethics office because they are now considered ‘recommendations’.” Numerous sources have painted a similar picture of the UN’s inner workings for The New American.

Another current UN official, David Kaye, who serves as “UN special rapporteur on freedom of opinion and expression,” noted that, unlike most democratic nation states, there is no public accountability mechanism at the UN, where being opaque is the rule and there is nothing akin to freedom of information laws to ensure public access. That means UN bosses are less concerned with being caught, he said. “That reduces their incentives to do the right thing,” Kaye told the British paper. “There is all sorts of opacity which makes it easy for an employee to suffer retaliation.” He said the UN faces a “broad structural problem” that needs to be dealt with. “It’s a threat to UN employees and international civil servants, and it’s a threat to efficiency and accountability in the UN system,” Kaye added. More importantly, perhaps, it is also a threat to vulnerable civilians in nations occupied by UN “peace” troops, as decades worth of sexual abuse scandals show clearly.

A group of UN whistleblowers made similar arguments earlier this year in a letter to UN boss Ban and other bosses at the organization about the atrocious treatment of whistleblowers. “Each one of us has blown the whistle on serious wrongdoing, gross misconduct and even criminal acts at the United Nations,” wrote the coalition of whistleblowers in the letter. “Our collective experience of reporting misconduct in the UN covers sexual exploitation, abuse of power, corruption and other criminal behavior over a period of more than a decade and a half. Each one of us has faced retaliation for reporting the wrongdoing. Our cases are well-known and, sadly, deter others from reporting wrongdoing. This must change.” The letter also outlined some recommendations, though it appears that nothing has changed.

U.S. law actually requires the State Department to withhold some American taxpayer dollars from the UN unless and until it implements proper protections for whistleblowers. While Obama’s Secretary of State John Kerry has ludicrously certified that all is well, experts say that provision should be taken seriously. Generally speaking, though, critics and activists who have worked on the issues tend to argue for solutions such as better whistleblower protections, more accountability, more transparency, deeper engagement from UN member governments, and more. The Obama administration and the globalist-minded Council on Foreign Relations have even been pushing to further empower the UN and its scandal-plagued armed forces. However, after 70 years, it has become painfully clear to many critics around the world that the UN, often ridiculed as the “dictators club,” cannot be “reformed.” And the last thing it needs is more power or money.

Instead of more meaningless “reform” or handing it more resources and authority, some U.S. lawmakers are looking at more serious solutions. One such effort is a bill introduced again in Congress this year to restore American sovereignty, withdraw U.S. membership from the UN, and evict the controversial outfit from American soil. Until the American people and their representatives demand serious solutions, though, the UN is likely to continue brutalizing, stealing, raping, embezzling, and mismanaging — all while seeking to destroy anybody who tries to put a stop to it by blowing the whistle.

And that should be considered unacceptable. (Source: The New American)

Chronological History of Events Involving Whistleblowers

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Whistleblower Exposes Migrant Children Handed Over To Unvetted Adults at US / Mexico Border

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MVM Whistleblower: Thousands of kids per week Secretly Flown to Unvetted Adult 'Sponsors'

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In a recent interview, an anonymous whistleblower who works as a "travel youth care worker" for a federally funded contractor, shared that tens of thousands of unaccompanied migrant children are being bussed and flown throughout the US and being handed off to unvetted adult "sponsors." The employee, who works for the government contracted company, MVM Inc., said that the company’s main focus is getting unaccompanied minors ...
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