That Whistle's Been Blowing for Two Years
By Stephen Barr
Friday, October 12, 2007; D04

The investigation has run for two years, and it's possible the Bush administration will have left office before the charges and countercharges are resolved.

The saga involves Scott J. Bloch, head of the Office of Special Counsel, the small agency that handles federal employee whistle-blower cases and investigates improper political activities on government property.

Bloch, a Bush appointee, has been accused of retaliating against employees who disputed his policies, unnecessarily reorganizing his office to try to run off critics, and arbitrarily dismissing complaints submitted by federal workers to reduce a backlog of claims.
In 2005, a group of anonymous employees, joined by public-interest organizations, filed a complaint against Bloch, which the White House referred to the inspector general at the Office of Personnel Management for investigation. Bloch has denied the allegations.

This week, a lawyer representing the employees wrote to White House counsel Fred Fielding urging him to request an interim report from OPM "regarding what its investigation has uncovered to date, and to explain the reasons for its long delay in concluding this investigation."

Debra S. Katz, the lawyer, contended that Bloch "has succeeded in obstructing and delaying this investigation," most recently by directing current and former staff aides to refuse to provide answers to questions from the OPM inspector general, Patrick McFarland.
In the letter, Katz said that "Bloch's end-game here is obvious. He intends to play out the clock through the end of the president's term and avoid any responsibility or consequences for his misconduct."
Bloch, in a statement, called Katz's letter "rehashed allegations of obstruction that are false. I have fully cooperated with and never impeded the investigation, and agree that the OPM IG should explain its long delay in completing this now two-year-old investigation."
The controversy underscores the tensions inherent with independent agencies, such as the Office of Special Counsel, and the difficulties that can arise when the investigator is investigated.

Bloch, for example, has launched a probe into whether campaign briefings given by White House aides to political appointees at federal agencies crossed the line and violated the Hatch Act, the decades-old law that prohibits partisan activities in the federal workplace.

He told The Post in April that the Hatch Act probe did not present a conflict of interest, adding that "it would be inappropriate for the White House to interfere with my independence."

But some of Bloch's critics contend he is playing politics when he makes such assertions. "OSC is the right agency, but Scott Bloch is the wrong government official to conduct a credible investigation of politics corrupting the merit system," Tom Devine, legal director of the Government Accountability Project, said yesterday.

In an unusual step, Devine, Jeff Ruch of Public Employees for Environmental Responsibility and Danielle Brian of the Project on Government Oversight sent a letter this week to the Senate Homeland Security and Governmental Affairs Committee asking that it not support higher funding for Bloch's office in fiscal 2008.

Bloch's office, which has 113 employees, has said it needs an additional $3 million for Hatch Act investigations, primarily to hire technical experts who can extract documents and e-mails from computer systems. The White House had requested $16.3 million for the office next year.

As part of the Hatch Act initiative, Bloch has created a special task force, which has six staff members and a manager. The task force supplements the regular Hatch Act staff of five.

But the watchdog groups, in their letter, said they do not trust Bloch, adding that his office "cannot take on any more responsibilities without further abandoning its primary constituency: government whistle-blowers."

Leslie Phillips, spokeswoman for Sen. Joseph I. Lieberman (I-Conn.), chairman of the Senate committee, said Lieberman has expressed support for additional funding for Bloch's office, "but he remains deeply concerned about the serious allegations that led to the IG investigation."

Lieberman, she added, "believes it is essential that the IG investigation be promptly concluded."

Stephen Barr's e-mail address isbarrs@washpost.com.

CIA Chief Orders Investigation of Inspector General
By Greg Miller
The Los Angeles Times
Friday 12 October 2007

An inquiry would focus on the conduct of the office that has brought harsh scrutiny of figures across the agency.

Washington - CIA Director Michael V. Hayden has mounted a highly unusual challenge to the agency's chief watchdog, ordering an internal investigation of an inspector general who has issued a series of scathing reports sharply critical of top CIA officials, according to government officials familiar with the matter.

The move has prompted concerns that Hayden is seeking to rein in an inspector general who has used the office to bring harsh scrutiny of CIA figures from former Director George J. Tenet to undercover operatives running secret overseas prison sites.

The probe is focused on the conduct of CIA Inspector General John L. Helgerson and his office. Officials said it is aimed in particular at evaluating whether his office was fair and impartial in its scrutiny of the agency's terrorist detention and interrogation programs. But officials said the probe also spans other subjects and has expanded since it was launched several months ago.

U.S. intelligence officials who are concerned about the inquiry said it is unprecedented and could threaten the independence of the inspector general position. The probe "could at least lead to appearances he's trying to interfere with the IG, or intimidate the IG, or get the IG to back off," said a U.S. official familiar with the probe.

Frederick P. Hitz, who served as the CIA's inspector general from 1990 to 1998, said the move would be perceived as an effort by Hayden "to call off the dogs."

"What it would lead to is an undercutting of the inspector general's authority and his ability to investigate allegations of wrongdoing," Hitz said. "The rank and file will become aware of it and it will undercut the inspector general's ability to get the truth from them."

But other officials described the probe as a chance to turn the tables on an inspector general who has been accused by some of his targets of treating career officers unfairly and letting personal biases undermine his objectivity.

"There is across-the-board distrust with the IG function and disrespect for Helgerson, who many believe has a personal agenda on issues," said a former high-ranking CIA official who, like others interviewed, spoke on condition of anonymity because of the classified nature of the inspector general's work. Helgerson, the former official said, "always went in with a presumption of guilt."

Helgerson oversees a large staff of investigators whose activities include everything from detailed examinations of highly classified programs to routine audits of mundane agency functions. He has served as inspector general at the CIA since 2002.

The CIA probe comes at a time when the powers of inspectors general in agencies throughout the federal government are under renewed debate. Earlier this month, the Bush administration threatened to veto a House bill that would strengthen the independence of inspectors general by giving them seven-year terms and permit the White House to fire them only for cause.

Hayden, an Air Force general who became CIA director last year, has not been involved in any publicly known clashes with Helgerson. But Hayden has been a staunch defender of the Bush administration's counterterrorism programs, and has lamented publicly what he describes as a tendency by outside observers and critics to second-guess the activities of the nation's intelligence agencies.

In response to questions about the unusual arrangement, CIA spokesman George Little said that Hayden "firmly believes that the work of the Office of Inspector General is critical to the entire agency, and, since taking the helm at CIA, he has accepted the vast majority of its findings." However, Hayden's goal is to "help the office do even better," Little said.

The CIA's review is being led by Robert Deitz, an attorney with long-standing ties to Hayden who was brought in to serve as a senior counselor to the director. Deitz, who served as general counsel at the National Security Agency when Hayden was director there in the 1990s, has assembled a small team of investigators to conduct the probe.

Little, the CIA spokesman, said Deitz came to the post with "an absolute belief in the value of an independent, rigorous Office of Inspector General."

The inquiry has been driven in large part by senior operations officers who have complained to Hayden that they were unfairly criticized by Helgerson in classified reviews of the CIA's secret prisons programs.

The probe is set up to examine "how those people were treated, how the investigations were conducted," said an official familiar with the probe.

The official declined to discuss the conclusions of those IG investigations, which are classified, but said that "the people who are upset didn't think they were glowing reviews."

Among the issues being explored are whether agency officers were given adequate opportunity to defend their actions, and whether the inspector general's conclusions accurately represented their roles.

Officials declined to provide names of the CIA officers behind the complaint. One former official said, "We're talking about undercover people at mid- to senior-grade ranks."

The CIA created a network of secret overseas prisons shortly after the Sept. 11 attacks, and has faced severe international criticism for employing harsh interrogation tactics as well as a program known as "extraordinary rendition," in which prisoners have been transferred to countries known to use torture.

To date, officials said, the probe has largely involved gathering information and statements from CIA officers who came under scrutiny in Helgerson's review.

But officials expressed concern that the probe will also involve reviewing the inspector general's files. Such a step could have a dramatically chilling effect, officials said, making agency employees reluctant to cooperate with future investigations for fear that their involvement and the information they provide would be exposed.

The focus on the prison program represents an expansion of a probe that officials said began several months ago into the relationship between Helgerson's office and that of the CIA general counsel.

Officials said that Hayden was concerned about friction between the two offices, and tapped Deitz to explore the matter. The nature of the friction was unclear, but involved complaints that Helgerson had overstepped his role by offering legal opinions on agency programs.

One former high-ranking CIA official said that Helgerson has not shied away from taking positions in heated internal policy debates. The former official recalled attending staff meetings in which Helgerson expressed opposition to agency involvement in handling detainees as part of the war on terrorism.

A career CIA officer who holds degrees in political science, Helgerson had previously served as chief of the agency's analytic branch as well as head of the National Intelligence Council, which produces authoritative reports on key national security issues.

Helgerson has become an unusually high-profile occupant of the position largely because his tenure has coincided with a series of historic intelligence blunders.

An examination of failures leading up to the Sept. 11 attacks was sharply critical of Tenet and other senior CIA officials, saying they "did not discharge their duties in a satisfactory manner," and calling for the creation of special in-house panels to determine whether they should be reprimanded.

The CIA had fought to keep that report secret. But Hayden reluctantly released the report's key findings in August after Congress passed legislation requiring the CIA to declassify the document's executive summary. The conclusions were denounced by many targets of the probe, including Tenet, who issued a statement saying, "The IG is flat wrong."

The tone of the report also angered officials who were not singled out for criticism. Robert Richer, who was the assistant deputy director for operations at the CIA before retiring in 2005, said that shortly before he left the agency, he sent a memo to then-director Porter J. Goss requesting that the IG be reviewed for his impartiality.

"The basis of it was the 9-11 report," Richer said in an interview, referring to Helgerson's examination of Sept. 11-related failures. Goss did not act on that request, and it is unclear whether it played any role in Hayden's decision to initiate a review of Helgerson's conduct.

Because of its role, the inspector general's office is viewed with distrust and suspicion by other parts of the agency, particularly case officers who operate overseas and "feel they're being investigated by people who don't fully understand their business," said one former CIA official.

Helgerson's office has also been accused of leaks to the press. Goss in 2006 fired CIA officer Mary O. McCarthy, who worked in the inspector general's office, after she was accused of inappropriate contacts with journalists, including with a Washington Post reporter who wrote articles about the CIA's secret overseas prisons.

The relationship between the CIA director and the inspector general is complicated. The law creating the watchdog position specifies that the IG "shall report directly to and be under the general supervision of the director." The law also makes clear that the CIA director can ignore recommendations from an IG and even prohibit him from initiating investigations.

But Hitz, the former CIA inspector general, and others said the position has traditionally operated with a great deal of autonomy, and that there are other mechanisms for holding an inspector general accountable. In particular, a 1992 executive order established what is known as the President's Council on Integrity and Efficiency and gave it authority to evaluate the work of inspectors general in agencies across the government.

"I don't think it's appropriate for the IG to be in an offline way investigated by his superior," said Hitz. "If the director has a problem with the way the IG is performing his job, he can go to the Congress, to the president's intelligence oversight board, or he can go to the president himself."

13. Federal Legal Corner: Eligibility for Whistleblower
Protection

The U.S. Court of Appeals for the Federal Circuit recently issued a
decision that recognizes appeal rights under section 2302(a)(2)(c)
(ii) of the Whistleblower Protection Act (WPA) for employees
working in agencies that have not been expressly determined by
the President to be an executive agency or unit whose principal
function is the conduct of foreign intelligence or
counterintelligence activities. In Czarkowski v. Merit Systems
Protection Board, No. 03-3300 (Fed. Cir. Nov. 8, 2004), the
court found that President, or his lawful designee, had not
made an actual determination expressly naming the Navy�s Office
of Special Projects (OSP) as an exempt agency under � 2302(a)(2)
(C)(ii).

The employee, Carol Czarkowski, was employed under a Schedule A
appointment in the excepted service. Her position included dealing
with classified contracts for large dollar amounts and was
subject to a periodic security background investigation. After
Ms. Czarkowski made disclosures protected by the WPA, the agency
removed her supervisory responsibilities and placed her on a
performance improvement plan. After filing an initial complaint
with the Office of Special Counsel, Ms. Czarkowski filed an
individual right of action (IRA) against the agency with the
MSPB, alleging retaliation.

The agency moved to dismiss this case, arguing that the Board
did not have jurisdiction over the complaint because OSP was
exempt from Board jurisdiction under 5 U.S.C. � 2302(a)(2)(C)(ii).
This statute denies the Board jurisdiction over IRA appeals
involving certain agencies, such as the Federal Bureau of
Investigation, the National Imagery and Mapping Agency, and
the National Security Agency. The MSPB upheld the dismissal
of her case on jurisdictional grounds, noting that Ms.
Czarkowski had failed to present evidence contradicting the
OSP�s intelligence function.


The court of appeals in reversing the Board explained that
although many agencies have the authority to, and do actively
conduct foreign intelligence activities, the statute
specifically assigned the President the task of identifying
which agencies meet the �principal function� test. Contrary
to the Board�s position, the statute does not give the Board
the authority to determine which agencies meet this test.
Even in the presence of documents that suggest to the Board
that the President could have or should have made the
determination that an agency meets the principal function test,
the burden is on the agency to establish that the President,
or his delegate, has explicitly exempted an agency or a unit
thereof.

The court noted that by establishing the Intelligence Community
Whistleblower Protection Act (�ICWPA�) of 1998, Congress
expressly provided all intelligence employees an alternate
scheme for disclosing information without fear of reprisal. The
legislative history of the ICWPA also supported the clear inteny
of Congress to require an express Presidential determination.
Further, the court of appeals noted that for policy reasons it
is important that employees are able to determine whether they
are covered by the WPA or the ICWPA, in order to decide how to
disclose information without fear of retaliation.

For employees of those agencies, like the OSP, whose function
includes, or is authorized to include an element of intelligence
activity, this decision will be extremely helpful in obtaining
WPA protection and establishing the jurisdiction of the MSPB over
their whistleblowing complaints. As a result of this decision,
an agency seeking to dismiss a WPA case on this basis will be
required to prove that the President, or his delegate, expressly
and explicitly determined that the principal function of the
agency is foreign intelligence or counterintelligence activity.
This information is provided by the attorneys at Passman & Kaplan,
P.C., a law firm dedicated to the representation of
federal employees worldwide. For more information on Passman &
Kaplan, P.C., go to http://www.passmanandkaplan.com.


Publisher�s Note: Passman & Kaplan have produced a brand new
guide, The Federal Employees Legal Survival Guide, a must have
for all federal personnel managers.

Go to http://www.fedweek.com/pub for more information and
how to order.

How do you tell the difference? Gerald Eastman discusses the answer to this question and more in his recent blog post:


From Gerald Eastman’s “The Last Inspector” blog.

http://eastmans.web.aplus.net/pblog/index.php

http://www.thelastinspector.com/index.html


My blog today has a lot to do with part of my July 29th, 2007 blog, "What is Wrong With the Legal System?" which can be found at the following link:

http://eastmans.web.aplus.net/pblog/ind ... 729-222028

It has to do with the portion of the blog dealing with lawyers I had had to deal with over the course of my quest to end the Boeing fraud documented on my web site, specifically (with the important points bolded):

"You would hope somewhere in this system there was somebody that followed the rules and did their jobs...A prosecutor's office. A company's legal department. A private legal firm. An attorney.

It seems finding people of integrity in the legal system is as slapdash as it was to find such people in my department when I was an inspector at Boeing. I was almost alone in being the one with enough integrity to do my job while being pressured not to do it by people without integrity.

Take the Boeing Legal department, for instance, which I tried to report fraud to on two occasions and who are assisting in my persecution now. They have many attorneys in house who presumably had to pass the bar and have to stay members of the bar to continue their profession.

Why weren't any of them kicked out of the bar association when they advised Boeing that the State Department had no authority to keep them from exporting militarily sensitive devices on aircraft to proscribed countries without an export license? It would seem like an open and shut case. The State Department prevailed over the Boeing legal department's wrong legal opinion that may have placed our country in danger. Boeing had to pay a $15 million dollar fine. But why weren't the attorneys who made that obviously incorrect decision fired or disbarred to keep them from making such huge "errors" in the future? Your guess may be as good as mine. There seems to be a lack of accountability in the profession. Or did Boeing's attorneys give the errant legal opinion and let the militarily sensitive technology on the airplanes deliver just because Boeing needed to deliver the airplanes to meet revenue and profit targets? That might explain both the highly questionable opinion by Boeing's attorneys and why Boeing deferred complying with State Department requests for Boeing to apply for export licenses before delivering such airplanes on multiple occasions. It also explains why such attorneys were not fired or debarred for incompetence. They were just doing their jobs. But that would have made them even better candidates for disbarment, you would think.

But since when did attorneys stop advising companies how to avoid legal problems by ensuring they complied with laws, and stop advising companies how to minimize the damage from any accidental breaking of the law, and start advising their companies how to break the law with impunity?

I saw that in the same Boeing legal department. They refused to end the fraud in quality assurance I reported to their chief counsel on two occasions, and instead seemed to pull out all the stops in ensuring that fraud was not ended, as a naive person like me (at the time) might have expected. Hell, the Chief Counsel of Boeing showed up at the doorstep of my work not to help end the fraud, but instead to decide how to dispose of me, who they viewed as the real problem. You would think any attorney involved in this covering up of this fraud and the resulting retaliation against me would be a prime candidate for disbarment. But I have no knowledge of any of them being disbarred. To this day they labor to cover up the same fraud I reported to them over five years ago...Indeed, my prosecution is just one part of their plan to cover up the noted fraud.

But if private legal departments operate thusly, what about our prosecutors? Wouldn't those attorneys who work on our dime spot such fraud and the related efforts to cover it up by placing false reports to the police to get people trying to end it arrested and the information they were gathering for the relevant authorities confiscated? Nope. They apparently do what the Boeing legal department wants them to do, not what is in the interests of the public or public safety. They decide to participate in the cover up by attacking the messenger of the fraud. Of course, maybe it is not incompetence or corruption that caused our public attorneys to act against their professional ethics. Maybe Boeing's chief outside law firm contributing to the campaign of the prosecutor who faces his first election for King County Prosecutor in a few months played a part. I don't know if Boeing is helping his election directly yet, but they have certainly proven themselves arrogant enough to do so. Shouldn't these types of activities cause these prosecutors to get disbarred as well? It would seem so. I don't see the bar association condoning this type of behavior.

...I am just one insignificant "victim" of unethical public and private attorneys working together that should probably be disbarred for incompetence and/or corruption. There will be others, unless someone, like I did in my job as an inspector at Boeing, stands up and actually does their job with the required ethics."

End of blog excerpt.

What I wanted to relay today was some insight I have gotten into the answer for this conundrum: Attorneys protecting illegalities rather than representing their clients in order to prevent illegalities from occurring or to defend their clients after they have (wittingly or not) engaged in illegal activity. While researching this subject, I have found a startling answer by consulting definitive sources of legal information on the subject:

As it turns out, the behavior of attorneys I mentioned in the above examples that help their clients continue to engage in fraud in any way (covering it up, etc.) are not just doing their jobs as attorneys. Such attorneys are in fact considered accomplices in the fraud or crime they help ensure continues, rather than ensure it ends. Those among you who are legally savvy are probably saying "duh" right now, but this was news to me.

What does this mean? (Yeah, get ready for another "duh" moment.) Of course, it means that attorneys cannot legally act in the way I have witnessed them act. There is nothing that lets them do their jobs in that way. Such attorneys that cover up ongoing fraud or enable its continuance don't just need to be disbarred--they are as complicit themselves with those that commit the fraud they are protecting. They are criminals, not attorneys. Due to the lowly state of public opinion of attorneys you may not sense the significance of this. Some people think all lawyers are bad and even criminally so because they have been so demonized as a group. However, what I found out shows (in this one area of law) who the real attorneys who are criminals are, and why they are criminal accomplices rather than just counsel to criminals.

So, attorneys who protect such fraud should be disbarred and tried with those whose fraud they were protecting. The fact that this kind of behavior by attorneys seems so common (in the limited circle of public and private attorneys I have had to deal with) is even more disconcerting with the knowledge it is not only ABA rules they are breaking, but that they are breaking the law as well.

It is indeed a sad era in America when both public and private attorneys protect fraud that places so many lives at extra levels of risk of an unknown and random severity.

From Mother Jones

An Uncertain Fate for the Whistleblowers Who Took on State Department's Inspector General

The Blackwater investigation has fueled controversy about military contractors' abuses in Iraq. But it has also raised questions about where government whistleblowers can turn for protection.

Brian Beutler, The Media Consortium
October 05 , 2007

The House Oversight and Government Reform Committee room teemed on Tuesday with one of Congress' busiest oversight hearings since the Democrats took power in January. Dozens of cameramen huddled in an erratic arc around the witness table. Print media writers crammed into the crowded audience. And the vast majority of guests were forced to watch the proceedings on a television feed in a different room altogether. We'd all come to watch Chairman Henry Waxman's promised whipping of the government's largest private military contractor, Blackwater USA, and its CEO, the wealthy former Navy SEAL Erik Prince. His company has been implicated in, among other things, shooting a security guard of the vice president of Iraq, instigating the bloody battle of Falluja, and, most recently, a September 16 shoot-out in Baghdad that resulted in the deaths of 17 Iraqis. But beyond illuminating Blackwater's conduct in Iraq, Waxman's investigation also raises questions about the rights of federal whistleblowers and about Congress' ability to protect them.

Most of the work Blackwater does in Iraq is contracted by the State Department, and typically, any inquiry into these events would fall to the department's inspector general, Howard Krongard.

But Waxman's committee has been investigating that very office, as well. Recently, seven people working for Krongard alleged that Krongard himself had, in Waxman's words, "interfered with on-going investigations to protect the State Department and the White House from political embarrassment." Two of those whistleblowers former Assistant Inspector General for Investigations John DeDona and his erstwhile deputy Ralph McNamararesigned specifically because of Krongard's meddling.

How did Krongard respond? Allegedly by threatening to terminate anybody else who dared speak with congressional investigators. Two of his employees special agents Ron Militana and Brian Rubendall have agreed to speak out anyway.

According to Militana, Krongard's congressional liaison informed the duo that "the majority [Democrats] are not friends. The minority staff has been helpful…. You have no protection against reprisal. You have no whistleblower protections. Howard could retaliate and you would have no recourse."

"Howard can fire you. It would affect your ability to get another job," the congressional liaison allegedly threatened.

Waxman, of course, was outraged by the threats and, in a September 28 letter to Krongard, he issued a warning of his own.

"I am appalled by these reports," Waxman wrote. "As an Inspector General, you hold a position of special trust within the federal government. Your office is supposed to be an example of how to protect whistleblowers, not an example of how to persecute them…. You should be aware and you should advise your staff that Congress has passed civil and criminal prohibitions against threatening and tampering with witnesses, retaliating against whistleblowers, and providing false information to Congress."

But there's a catch. The prohibitions Waxman cites are enshrined in the so-called Whistleblower Protection Enhancement Act of 2007a comprehensive bill prohibiting retaliation against government whistleblowers that he sponsored, and which the House has indeed passed. But thanks to Senator Tom Coburn (R-Okla.) it is currently on hold in the Senate, in a form that President Bush has threatened to veto anyhow.

In 1989, former President George H.W. Bush signed into law a federal whistleblower protection act of his own, but many of the provisions therein have since been nullified by a series of court orders, most recently the Supreme Court's decision in the case of Garcetti v. Ceballos, which stripped all government employees of their First Amendment rights whenever they're speaking in an official capacity. Waxman's bill aims to reanimate some of those eroded rights.

Stephen Kohn, a District of Columbia attorney and a national expert in whistleblower law, says all is not lost for Militana and Rubendall if they take the right steps meaning, if they're aggressive enough to do an end-run around the executive branch.

The U.S. Office of Special Counsel should be the place where government employees go for protection when dropping the dime on their superiors' corruption. But the office is now headed by a Bush appointee named Scott Bloch, who has a well-reported record of anti-whistleblower activities. "It's a losing proposition," says Kohn.

That leaves whistleblowers in the hands of the courts. "If they have testified to Congress [to a member or a committee or its staff] they are covered under the oldest whistleblower law on the books," Kohn explains. "Their recourse would be to go into U.S. District Court to get an injunction against any sort of adverse action."

There's no record comparing how responsive the District Court has been in protecting whistleblowers to the more direct route they would have under a better functioning Office of Special Counsel. Kohn says when his firm has turned to the courts, "generally things get ironed out." But that raises the bar on whistleblowing only those with the fortitude (and financial resources) to do battle will step forward.

"The people who are being harassed for that have to assert their right aggressively," Kohn sums up, "or they'll be stepped on."

Brian Beutler is the Washington correspondent for the Media Consortium, a network of progressive media organizations, including Mother Jones.