Whistleblowers Testify on High Risk of Retaliation They Face for Going to Congress

Lt. Col. Jason Amerine
Lt. Col. Jason Amerine

United States government whistleblowers, who have gone to Congress in the past, have had a hugely positive impact. However, often government employees, who blow the whistle on fraud, waste, abuse and other examples of wrongdoing to members of Congress, face great risk to their livelihoods.

The Senate Committee on Homeland Security and Governmental Affairs held a hearing where whistleblowers testified about retaliation they have experienced.

An Army special forces officer, Jason Amerine, testified, “After I made protected disclosures to Congress, the Army suspended my [security] clearance, removed me from my job, launched a criminal investigation and deleted my retirement orders with a view to court martial me after I exercised that Constitutional right.”

In 2013, Amerine worked in an office tasked with freeing Sgt. Bowe Bergdahl, who has being held hostage by the Taliban. His office saw the dysfunction in the process of trying to rescue hostages and pursued an option that would have involved swapping a warlord and ally of President Hamid Karzai, Haji Bashir Noorzai, for seven American hostages, including Bergdahl.

According to Amerine, when the Taliban was at the table negotiating, the State Department said it would have to go with a swap between Bergdahl and the five Taliban.

Amerine claims that there was also “a great deal of evidence” that the Defense Department and FBI were implicated in an “illegal or questionable ransom” for Bergdahl. When he turned to Representative Duncan Hunter’s office, who is on the House Armed Services Committee, he eventually was put under criminal investigation.

Hunter setup a meeting between his office and the FBI. During the meeting, the FBI “formally complained to the Army that information” Amerine was “sharing with Rep. Hunter was classified. It was not.” Hunter was also told that the FBI had respect for Amerine’s work but they had to put him in his place.

Senior Special Agent Taylor Johnson of the Homeland Security Department’s Office of Investigations testified about blowing the whistle on corruption surrounding an EB-5 project. (EB-5 is a program that allows foreign nationals to obtain green cards if they make investments of money in the US.)

Johnson said she uncovered evidence of major fraud, money laundering, bank and wire fraud, as well as “ties to organized crime and high ranking officials and politicians, who received large campaign contributions that appeared” to have helped facilitate the EB-5 project.

She reported what she was uncovering through proper channels. Outside agencies and high-ranking officials complained, and the investigation was shut down after a “congressional complaint” was received.

Soon after, Johnson recalled, “I was escorted by three supervisors from my desk and out of my permanent duty station. I was not permitted to access my case file or personal items. I was alienated from my friends and colleagues, who were told by management to steer clear of me since I was facing criminal charges. I was removed from my permanent duty station and initially assigned to an office over 50 miles from my home and family,” a US code violation.

“I almost lost my youngest child, when an adoption social worker tried to verify employment and was told I had been terminated by the agency for a criminal offense,” Johnson further testified.

Jose Rafael Ducos, a Customs and Border Patrol (CBP) chief officer, testified about being retaliated against for reporting overtime pay abuses and formally challenging his immediate supervisors’ conduct. He claimed he was discriminated against because he is Hispanic.

For the past three years, he described workplace harassment and intimidation by individuals in CBP. He involved Sen. Ron Johnson, who sent a letter to Homeland Security Director Jeh Johnson on March 17, 2015, but he continues to be isolated and no longer is assigned to any permanent office.

“In my experience, congressional disclosures spark the ugliest retaliation,” Tom Devine, the legal director of the Government Accountability Project (GAP) testified.

Devine suggested this is because Congress can be a “magnet for public attention” that “can act both to change the balance of resources and the rules of the game.” A “direct linear relationship” exists between “the threat posed by a whistleblower and the severity of retaliation.” In fact, FBI whistleblower Coleen Rowley once suggested that the FBI “viewed Congress with as much and sometimes more hostility” than “enemy nations.”

Devine warned the committee that agencies are now relying on “creative harassment tactics” since the passage of the Whistleblower Protection Enhancement Act in 2012.

“Instead of just firing someone,” agencies put whistleblowers “under criminal investigation but give them the choice of either resigning or facing a prosecutive referral,” Devine explained. It is “very attractive” and “much easier” for them than litigation. They do not have to “prepare formal charges.” All an agency needs is a “good investigative lawyer.” The worst that can happen is the agency has to close a case. But the next month the agency can open another case against that whistleblower under a “new pretext.”

Most alarming is the “sensitive jobs loophole” President Barack Obama’s administration is creating. Devine argued the government is on the “verge of replacing the rule of law with a national security spoils system.” (more…)

WikiLeaks Releases Section of Secret Trans-Pacific Partnership Agreement That Would Affect Health Care

WikiLeaks TPP Healthcare Annex GraphicWikiLeaks has released a draft of an annex of a secret Trans-Pacific Partnership trade agreement, which would likely enable pharmaceutical companies to fight the ability of participating governments to control the rise of drug prices. It would empower companies to mount challenges to Medicare in the United States.

For a number of years, the US and eleven other countries—Australia, Brunei, Canada, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam—have been negotiating proposals for the TPP. Drafts previously released by WikiLeaks have shown that the US has been the most extreme negotiator in the process.

“This leak reveals that the Obama administration, acting at the behest of pharmaceutical companies, has subjected Medicare to a series of procedural rules, negotiated in secret, that would limit Congress’ ability to enact policy reforms that would reduce prescription drug costs for Americans – and might even open to challenge aspects of our health care system today,” according to Peter Maybarduk, director of Public Citizen’s Global Access to Medicines Program.

Public Citizen is a watchdog group that has been at the forefront of challenging the TPP in the US.

The annex, which is dated December 17, 2014, expressly names the Centers for Medicare & Medicaid Services as being covered by the trade agreement.

The watchdog group contends that the language could affect the ability of the Secretary of Health and Human Services to pursue pharmaceutical reform and “negotiate the price of prescription drugs on behalf of Medicare beneficiaries.”

“Vital to this reform would be the establishment of a national formulary, which would provide the government with substantial leverage to obtain discounts,” Public Citizen suggests. Yet, if the TPP is adopted, this “formulary” would be subject to the agreement’s requirements, which would “pose significant administrative costs, enshrine greater pharmaceutical company influence in government reimbursement decision-making and reduce the capability of the government to negotiate lower prices.”

The Senate already approved “fast track” legislation that would give President Obama “trade promotion authority” to send the TPP to Congress for a vote. The House of Representatives will vote on “fast track” this week (as early as June 11).

The Obama administration has been highly secretive, requiring senators and their staffers to have security clearances to read the drafted TPP.

Senator Barbara Boxer was confronted by a guard who told her she could not “take notes” on the trade agreement. The guard insisted the notes would be kept in a file, which made Boxer even more outraged. (What would stop the Obama administration from using such notes to maneuver around the objections of members of Congress?) (more…)

A Misleading Moment of Celebration for a New Surveillance Program

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This is cross-posted with permission from ExposeFacts.org.

The morning after final passage of the USA Freedom Act, while some foes of mass surveillance were celebrating, Thomas Drake sounded decidedly glum. The new law, he told me, is “a new spy program.” It restarts some of the worst aspects of the Patriot Act and further codifies systematic violations of Fourth Amendment rights.

Later on Wednesday, here in Oslo as part of a “Stand Up For Truth” tour, Drake warned at a public forum that “national security” has become “the new state religion.” Meanwhile, his Twitter messages were calling the USA Freedom Act an “itty-bitty step” — and a “stop/restart kabuki shell game” that “starts w/ restarting bulk collection of phone records.”

That downbeat appraisal of the USA Freedom Act should give pause to its celebrants. Drake is a former senior executive of the National Security Agency — and a whistleblower who endured prosecution and faced decades in prison for daring to speak truthfully about NSA activities. He ran afoul of vindictive authorities because he refused to go along with the NSA’s massive surveillance program after 9/11.

Drake understands how the NSA operates from the highest strategic levels. He notes a telling fact that has gone virtually unacknowledged by anti-surveillance boosters of the USA Freedom Act: “NSA approved.” So, of course, did the top purveyor of mendacious claims about the U.S. government’s surveillance programs — President Obama — who eagerly signed the “USA Freedom” bill into law just hours after the Senate passed it.

(more…)

Former Speaker Dennis Hastert Indicted for Violating Federal Banking Laws

Former Speaker of the US House of Representatives Dennis Hastert was indicted Thursday for violating federal banking laws and lying to investigators.

According to the indictment former Speaker Hastert was involved in a scheme to pay an unknown person $3.5 million to rectify a recent impropriety and was trying to game federal banking laws by withdrawing around $950,000 from his various accounts in small enough increments so as to avoid notifying authorities.

When confronted by federal agents about the suspicious withdrawals Hastert allegedly lied to the FBI and said the withdrawn cash was for his own use. The indictment does not identify the individual Hastert paid off or what transgression Hastert committed to warrant the clandestine payments.

After leaving public service in 2007, Hastert became a lobbyist to cash in on his connections and institutional knowledge of Congress. In the wake of the indictment Hastert has resigned from his position at the lobbying firm Dickstein Shapiro.

When serving Congress Hastert had a reputation for corruption perhaps most notably in the instance where he secured a congressional earmark to improve the value of land he owned. Given that the nature of the crime he is accused of committing involves well documented financial transactions it would appear that Hastert is going to have a tough time escaping all the charges brought by prosecutors.

New York Times Pushes False Notion Both Sides of Patriot Act Debate Are Wrong

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An analysis published in the New York Times falsely equates arguments for and against extending provisions of the PATRIOT Act, making it seem as if those against extension are just as wrong as those pushing to preserve government spying powers.

“There is little evidence in the history of the expiring Patriot Act powers to bolster the arguments that either supporters or opponents are making,” according to a description of the analysis written by Charlie Savage.

With the headline, “Reality Checks in Debate Over Surveillance Laws,” it appropriately calls out Republican senators like Tom Cotton, who have claimed a lapse in “this critical tool would lead to attacks.” Savage notes that studies and testimony have both shown that in the program’s existence zero terrorist attacks have been thwarted.

However, in the next paragraphs, Savage casts opponents of extending the provisions as individuals who are comparably wrong:

At the same time, proponents of ending the program say it poses risks to Americans’ private lives, by permitting the government to know who has been calling psychiatrists or political groups, for example. But despite the discovery of technical violations of the rules several years ago, no evidence has emerged that the program has been misused for political or personal gain. As a result, the privacy-minded critics have had to couch their warnings in hypothetical terms.

“Even if we stipulate for purposes of this discussion that no one within the N.S.A. is currently abusing this program for nefarious political purposes,” Senator Rand Paul, who is running for the Republican presidential nomination, said in a filibuster-style floor speech last week, “can we say we are certain that will always be the case? Who is to say what might happen one year from now, two years from now, five years, 10 years or 15 years from now?”

While Savage may consider this to be equal to fear mongering about what will happen if spying powers are curtailed, “privacy-minded” opponents of the PATRIOT Act are not relying on the same hyperbole.

The only example Savage cites is very restrained and calculated. It is based on a concern that history could repeat itself because the country once experienced what it was like to have a domestic security state turned against citizens decades ago when J. Edgar Hoover was FBI director. And, in the example, Paul is making no claims about abuse for personal or political gain that cannot be backed up.

On the contrary, none of the supporters of the Patriot Act spying powers are as measured in their arguments. Not even officials from President Barack Obama’s administration are as level-headed in their rhetoric.

Administration officials have had a reporter from the Times print anonymous statements from them, one which suggests critics are playing “national security Russian roulette.” The administration maintains opponents are being “grossly irresponsible” because they want to have a debate and reform spying powers in a manner that much of the country actually supports.

Furthermore, it is inaccurate—and, at best, misleading—to write in any analysis that there is “no evidence” that “the program has been misused for political or personal gain.” (more…)

Scaremongering About the Patriot Act Sunset

As Section 215 nears its expiration date, the standoff over civil liberties is imminent, writes ACLU’s Jameel Jaffer.

By Jameel Jaffer

In a last-ditch effort to scare lawmakers into preserving unpopular and much-abused surveillance authorities, the Senate Republican leadership and some intelligence officials are warning that allowing Section 215 of the Patriot Act to sunset would compromise national security. (One particularly crass example from Senator Lindsey Graham: “Anyone who neuters this program is going to be partially responsible for the next attack.”) Some media organizations have published these warnings without challenging them, which is unfortunate. The claim that the expiration of Section 215 would deprive the government of necessary investigative tools or compromise national security is entirely without support.

First, there’s no evidence that the call-records program is effective in any meaningful sense of the word. The Privacy and Civil Liberties Oversight Board, which reviewed classified files, “could not identify a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation.” The President’s Review Group, which also reviewed classified files, determined that the call-records program had “not [been] essential to preventing attacks,” and that, to the extent the program had contributed to terrorism investigations, the records in question “could readily have been obtained in a timely manner” using targeted demands. Although government once made far grander claims to the FISA court, the strongest claim that leaders of the intelligence community now make in support of the call-records program is that it provides “peace of mind.” Whatever this claim means—peace of mind to whom?—it’s not a claim that the program is necessary.

Second, there’s no evidence that other forms of collection under Section 215 have been any more effective. If intelligence officials could cite instances in which collection under Section 215 had been crucial to terrorism investigations, you can be sure they would have cited them by now. They certainly would have cited them to the Justice Department’s Inspector General, but a report by the Inspector General released this past week states that FBI personnel were “unable to identify any major case developments that resulted from use of the records obtained through use of Section 215 orders.” FBI personnel didn’t say that collection under Section 215 had been entirely useless—they said it had been useful in corroborating information already in their possession, for example—but they certainly didn’t say, or even come close to saying, that the expiration of Section 215 would compromise national security.

Third, the sunset of Section 215 wouldn’t affect the government’s ability to conduct targeted investigations of terrorist threats. This is because the government has many other tools that allow it to collect the same kinds of things that it can collect under Section 215. It can use administrative subpoenas or grand jury subpoenas. It can use pen registers. It can use national security letters. It can use orders served under the Electronic Communications Privacy Act. If Section 215 sunsets, it can use the provision that Section 215 amended, which will allow it to collect business records of hotels, motels, car and truck rental agencies, and storage rental facilities.

The sunset of Section 215 would undoubtedly be a significant political loss for the intelligence community, and it would be a sensible first step towards broader reform of the surveillance laws, but there’s no support for the argument that the sunset of Section 215 would compromise national security. Against this background, it’s not surprising the FBI Director reacted the way he did to a question about the possible sunset of Section 215. “I don’t like losing any tool in our toolbox,” Comey said, “but if we do, we press on.”

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