Thursday, April 26, 2007

Scott Bloch & the OSC

With Scott Bloch & the OSC back in the news re the purported investigation in Karl Rove, Mojo has a new feature article out:
"whatever bloch's fate, his critics say the osc controversy is symptomatic of a larger problem. "The Bush administration has absolutely not endorsed the concept of whistleblowing—they see it as disloyalty," one senior osc official told me. Bloch's tenure, echoes Sibel Edmonds, a former fbi translator and the founder of the National Security Whistleblowers Coalition, is simply "a very good example that shows that the system is broken." Helped by post-9/11 security fears, the Bush administration has worked to lock down information in all areas of government. "Secrecy has become a central axis of executive branch policy," William Weaver, the Texas professor, testified before Congress this winter.

The administration has fought disclosures by invoking provisions such as the State Secrets Privilege and "sovereign immunity"—the English common-law notion that the king can do no wrong. It has worked behind the scenes on Capitol Hill to undermine whistleblower legislation, and, in the case of the National Security Agency's domestic spying program, has launched a criminal probe to determine the source of leaks to the press. The president himself told reporters that leaking the nsa program had been "a shameful act" and said "the fact that we're discussing this program is helping the enemy." More documents than ever before are being shielded from public view—the number of classifications nearly quadrupled from 1995 to 2005, from 3.6 million to 14.2 million. The rampant classifications put whistleblowers at risk of criminal prosecution: Disclosing classified national security information to someone not cleared to receive it is a felony. In fact, in the administration's view, even members of Congress who sit on the intelligence committees and have top security clearances don't have the right to know some of the government's business. After nsa whistleblower Russ Tice made clear his intention to report the agency's warrantless surveillance program, carried out under a highly classified Special Access Program (sap), the nsa warned him that "neither the staff nor the members of the [Senate and House intelligence committees] are cleared to receive the information covered by the saps."

The courts have also not been kind to whistleblowers. Last May, in what whistleblower lawyer Steve Kohn calls "the single biggest setback for whistleblowers in the courts in the past 25 years," newly appointed Supreme Court Justice Samuel Alito cast the tiebreaking vote in Garcetti v. Ceballos, a case involving a prosecutor in the Los Angeles district attorney's office who claimed whistleblower retaliation. Under the ruling, Kohn says, public employees—all 22 million of them—have no First Amendment rights when they are acting in an official capacity, and in many cases are not protected against retaliation. "What that means is for employees who are making these disclosures on the job or in any official capacity, unless they have some statutory protection, they're shit out of luck," says Jeff Ruch, executive director of peer, the whistleblower advocacy group. Kohn estimates that "no less than 90 percent of all whistleblowers will lose their cases on the basis of that decision." Members of Congress—both Democrats and Republicans—scrambled to pass broader protections but failed in the face of opposition from the White House.

There are signs that Congress might be poised to reclaim some of its authority. On a bleak and snowy morning in late winter, the House Committee on Oversight and Government Reform—in whose name chair Henry Waxman (D-Calif.) had just restored the word "oversight," stricken by his Republican predecessor—held hearings on government secrecy, with Edmonds and Tice watching from the gallery. That day, Waxman introduced whistleblower-protection legislation that has since passed in the House of Representatives; the White House has threatened a veto. Later this year, Congress will also take up the fate of Bloch's osc, which is up for reauthorization. (Proposals include moving the agency into Congress' Government Accountability Office, removing it from the White House's purview.)

For Bloch's critics, change can't come soon enough. "The public has every reason to be concerned," says the osc official. Bloch, he adds, "has contempt for whistleblowers.""

The piece also includes some short case-study-thingies - Joseph Darby, Russ Tice, Sandy Gonzales, and of course:
Life as a State Secret
Sibel Edmonds
ALLEGATION: Bureau infiltrated by spy
UPSHOT: $285,000 legal bill

Fluent in Turkish, Farsi, and Azeri, Sibel Edmonds was hired in the fbi's translation unit shortly after 9/11. Just six months later, after reporting her suspicions that her department had been infiltrated by a Turkish intelligence operation, she was abruptly fired.

The department's inspector general later found many of her allegations to be well founded and concluded that the fbi displayed "an unwarranted reluctance to vigorously investigate these serious allegations." The report offered eight recommendations for improving the fbi's translation service. None were implemented. Edmonds sued the Justice Department for unfair dismissal; former Attorney General John Ashcroft mounted an unprecedented defense, invoking the State Secrets Privilege to essentially classify any information regarding the case and even barring Edmonds and her lawyer from hearing the government's arguments to the judge. The suit was dismissed and Edmonds was left with a $285,000 legal bill. "Five years of fight, and it's like, 'Why do we even blow the whistle?'" she says. "It didn't fix the system."

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