Legal Issue: Whistleblower Rights

One Line News in Public Forum Law: 9/13/2013

OPEN GOVERNMENT CalAware’s proposed Plan B to save the Brown Act and the Public Records Act to go before the voters Sunlight’s new list has 32 pointers for local/state governments on “proactive disclosure” policies FREE PRESS Judge denies deputies’ bid to gag the L. A. Times from publishing leaked background screenings Governor gets bill requiring 5 day notice to journalists before subpoenas of their phone, email records Federal shield bill moving to the Senate would protect sources of a wider variety of journalists OPEN MEETINGS L.A. Council may allow citizens to address its meetings remotely, avoid hassles of trip downtown FREE SPEECH Federal judges cool to arguments that new sex offender online data tracking preserves free speech PUBLIC INFORMATION Campaign finance watchdog: Just how helpful will the improved Cal-ACCESS online database be? WHISTLEBLOWERS Court: Government attorneys’ ethical duties don’t strip them of law’s whistleblower protections Secret spy court judge: Snowden leak led to “considerable public interest”; more openness needed      

Civil Liberties v. Surveillance: a Gold Standard?

With all the “Yes, but” debate filling the air on the propriety of secret national security surveillance vs. whistleblowers’ disclosures thereof, it comes as a relief (and something of an astonishment) that this very week an international collaborative of experts and activists on all sides of these issues has published a 35-page report, based on more than two years of research and debate, called “Principles on National Security and the Right to Know.” As reported by Steven Aftergood, who tracks national security secrecy for the Federation of American Scientists, The Principles present guidance on specific types of information that the drafters believe may legitimately be withheld from disclosure on national security grounds (e.g. current war plans), as well as categories of information that should not be withheld on national security grounds “in any circumstances” (e.g. information on gross violations of human rights). The Principles are the product of an international initiative, and they are not the same as U.S. policy writ large.  In fact, some of the Principles are inconsistent with current U.S. government practice. Thus, one principle would preclude the use of secret interpretations of law in the conduct of intelligence surveillance. “The overall legal framework concerning surveillance of all kinds, as well as the procedures to be followed for authorizing surveillance, selecting targets of surveillance, and using, sharing, storing, and destroying intercepted material, should be accessible to the public.” (Principle 10E). Another principle would provide strong protection to persons who publicly disclose government wrongdoing involving classified information, under certain specified conditions. (Principle 40). The tools of transparency can be used to attack an open society– by infringing on personal privacy, by violating confidentiality in the exercise of religious freedom or free association, or […]

The Worst Week in Memory for Basic Liberties

The current IRS’s selection of conservative groups seeking tax-free nonprofit status as a class suitable for suspicion and close investigation may not be in quite the same league as President Richard Nixon’s efforts to get the IRS to audit his political enemies—for one thing, there’s no evidence so far that the Obama White House knew about, much less directed the current policy.  But that does not mitigate the gravity of the episode, which should be a warning to groups all around the political compass of just how frail their First Amendment rights of speech, petition and association can be in the toils of large, remote, powerful and secretive governmental institutions.  But equally alarming is the other scandalous invasion of First Amendment rights disclosed this week—the U.S. Justice Department’s secret and wholesale seizure of phone records for more than 20 lines used by more than 100 Associated Press reporters and editors for a two month period last spring. That abuse looks very much like the outgrowth of a White House mania for plugging leaks and hunting down leakers not seen since Nixon’s notorious Plumbers era. That the secrets said to have been leaked last year concerned national security does not distinguish the episode from the scandal 40 years ago, which also dealt with putative national security alarms—Daniel Ellsberg’s leak of the Pentagon Papers to the New York Times.  And in any event the question must be asked: What kind of security does the nation have under an executive willing to abridge the freedom of the press on a wholesale basis to find and punish those who would inform the public about how the now perpetual Global War on Terror is being waged?  The GWOT phrase is […]

Court: Air Marshal Whistleblower Illegally Fired

Ten years ago California-based Federal Air Marshal Robert MacLean informed the public about the Transportation Security Administration’s plan to cut back on marshals assigned to flights just as intelligence alarms were sounding about a threat to long distance nonstop flights possibly worse than 9/11. The disclosure and its public reaction led TSA to cancel the cutback, but MacLean was later fired for going public with his concerns after getting nowhere going up the chain of command.  He’s now been vindicated by what’s seen as a major victory for the federal Whistleblower Protection Act—a judge’s ruling just days ago that the law protects employees even in at least some sensitive jobs like those in the Department of Homeland Security, unless the information constituting an illegal leak is expressly described by Congress. Dylan Blaylock with he Government Accountability Project has the story. Last Friday, the U.S. Court of Appeals for the Federal Circuit effectively restored the cornerstone for enforcement of the Whistleblower Protection Act (WPA), the key whistleblower protection law for most federal employees. The Government Accountability Project (GAP) is hailing the decision as a major victory for federal whistleblowers, and an important judicial decision outlining that statutory free speech rights trump conflicting federal agency regulations. The court overturned a U.S. Merit Systems Protection Board (MSPB) ruling that upheld the termination of Federal Air Marshal (FAM) and GAP client Robert MacLean. MacLean successfully warned the media, public and congressional officials of Transportation Security Administration (TSA) plans to cancel Marshal coverage during a 2003 al Qaeda terrorism plot – confirmed by intelligence agencies – that involved suicide airplane hijackings in what would have been a more ambitious effort than the tragic events of September 11, 2001. Last Friday’s […]

No Whistleblower Shield for Leaking to the Press

The headline is about how much San Diego County’s employee pension fund had to pay its lawyers to defend its decision to fire a whistleblower. The finer print adds that the defense was successful, because while California’s whistleblower protection laws are triggered by disclosures up the chain of command or to appropriate outside government authorities, they do not authorize document leaks to the news media—even when the documents are public records.  On the other hand, once a newspaper or broadcaster gets such documents it can refuse with impunity to disclose where it got them—if it knows.  The net prudential lesson for California government employees: If you must leak documents to the media that you’re not authorized to disclose—even if you’re sure they’re public records—do it over the transom.  And the media receiving such material might want to request them under the California Public Records Act to see what if anything is released by the agency.  If all that the leak provided is disclosed in compliance with the request, the leak need never become an issue. If the agency denies access to the records or even denies they exist, the story can still go forward, and could be even more interesting.

Survey of Federal Whistleblower Rights Laws

  Federal secrecy expert Steven Aftergood today announced release of a new survey by the Congressional Research Service of all 40 federal whistleblower protection and anti-retaliation laws. For each statute the survey reports its coverage, enforcement, remedies, and years of adoption and relevant amendments, and addresses the question of whether the statute permits protected persons to sue the offending government agency or private sector entity for damages.

Pfc. Manning: The Source Thrown under the Bus

The major news media have taken great advantage of the wealth of information from Bradley Manning’s dump of secret military and diplomatic files to Wikileaks, doing scores of stories they could not have otherwise done. But they have paid relatively little attention to what has happened to their ultimate source, Pfc. Manning, or even what may well happen to him, which would be the first execution of an American for the crime of “aiding the enemy.” They also have engaged in little or no public examination of the consequences that journalists themselves may face, if not soon then eventually, for being parties to disclosures that enrage the national security apparat. If Manning aided the enemy, then how does one describe what the journalists who published his releases did? They are the ones, not Manning, who presented the secrets to “the enemy”—along with the rest of the world. The U.S. supreme Court itself suggested in the first great First Amendment case nearly a century ago, “When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” Schenck v. United States, 249 U.S. 47, 52 (1919). But even if, for political reasons, the government would never pursue criminal charges against the press but instead wage draconian prosecutions against the leakers and whistleblowers that supply the press with its grist, that very strategy should both alarm and anger a press that still had a sense of responsibility—or at least a sense of shame. The dots get connected here and here.

  • califawareblog
    A Foggy National Security Record, Sunshine in So Cal A Foggy National Security Record, Sunshine in So Cal

    A Foggy National Security Record, Sunshine in So Cal

A Foggy National Security Record, Sunshine in So Cal

Openness and Civil Liberties: The Unsexy Topics President Obama’s recent directive to what many oddly call the national security “community” (a hamlet with hundreds of smoking stovepipes?) to work on regulations to provide some protection for whistleblowers with security clearances can be viewed as an antidote to criticism of this administration’s ferocity—not equaled since Nixon—in pursuing leaks and pressuring the reporters who are leaked to, invoking the state secrets privilege to halt litigation that might check or expose surveillance and other abuses, conducting trials of accused terrorists in venues inaccessible to the public, and so on. No interviewing journalist or debate moderator has raised anything like these secrecy and civil liberties issues in questioning the President; it took comedian Jon Stewart to do that this week, when Mr. Obama dropped in on the Daily Show. The President’s response, calling such issues “not real sexy,” morphed into the kind of facetiousness that is possible when there will be no follow-up, but not everyone was amused. Santa Ana Citizens Win Their Sunshine Law When it comes to local sunshine ordinances—requirements for governmental transparency and citizen participation that go beyond state law—Northern California communities have been the leaders for close to 20 years.  But now the south state has its first such law worthy of the name, thanks to citizens of Santa Ana who’ve been particularly focused on keeping a close watch on the plans of developers.  The 4-3 approval vote by the city council could not have been closer, but when it came the supporters exploded in cheers so resounding that the mayor—who had voted no—hammered his gavel, insisting, “This is not a pep rally.”

  • califawareblog
    State Lax in Shielding Private Sector Whistleblowers State Lax in Shielding Private Sector Whistleblowers

    State Lax in Shielding Private Sector Whistleblowers

State Lax in Shielding Private Sector Whistleblowers

Times are tough for whistleblowers all over. In May the Democrat-dominated Senate Appropriations Committee resoundingly killed Senator Leland Yee’s AB 1336, which would have provided more transparency and accountability for state and local government whistleblower programs supposedly concerned with fighting fraud, waste and abuse by public employers. Now Will Evans reports for California Watch that state officials charged with investigating retaliation against whistleblowers reporting health and safety violations in the private sector are often not even interviewing the whistleblowers—or anyone else other than the companies accused of wrongdoing.

  • califawareblog
    The Difference between Leaks and Whistleblowing The Difference between Leaks and Whistleblowing

    The Difference between Leaks and Whistleblowing

The Difference between Leaks and Whistleblowing

A whistleblower is an insider who wants to right a wrong and usually tries going up the chain of command to do it before going public, which is often the only option when his or her career suffers. A leaker is an insider who wants to get political attention to a situation—to generate either praise or criticism for a policy or practice—by using a reporter as a publicity outlet, almost always without career risk. Justice often depends on whistleblowers; politics often depends on leaks. We should not forget these distinctions, says David Sirota in Salon.