Whistleblowers Urge UN To Strengthen Protection For Those Revealing Abuses

from the echoes-of-Snowden dept

Aside from the extraordinary information that he revealed about massive yet unsuspected surveillance programs, Edward Snowden has produced several other collateral benefits through his actions in 2013. For example, recently we learned that the DEA's phone tracking program was cancelled as a direct result of the revelations and the ensuing uproar. Other leakers have started to come forward, apparently inspired by his actions. And as the press has pored over Snowden's actions, it has become clear that support for government whistleblowers is woefully inadequate -- indeed, that they are regarded by the Obama administration pretty much as traitors.

More generally, the debate around Snowden has highlighted the important part that whistleblowers play in sustaining the rule of law and defending democracy. Now a group of whistleblowers has written a letter calling on the United Nations to recognize that role (pdf), and to improve protections within the organization (via Intellectual Property Watch):

As our experience shows, retaliation against whistleblowers affects the entire UN system and goes largely unchecked at all levels, including in the Executive suites. Some UN whistleblowers have been fired or demoted; others have been subject to more subtle forms of abuse like non-renewal of contracts or sudden transfer to duty stations on the other side of the globe; many face plain, simple harassment and intimidation.

The problems they have to deal with are very similar to those encountered by Snowden when he sought to use official channels to raise his concerns:

UN whistleblowers are forced to go through lengthy, and often expensive, internal appeal processes in which the burden of proof, as a practical matter, rests on the whistleblower to demonstrate retaliation (the usual standard in national systems requires the employer to justify their actions were not retaliatory).

As a result, they often end up taking the same route that he did:

Put simply, the UN system of justice fails whistleblowers, and most of us have been forced to leave the UN to save our livelihoods, our health and our reputations.

The letter's signatories go on to call for the UN to review whistleblower protection at the organization, and they make concrete suggestions on improving the lot of those revealing abuses, including recognizing that:

Whistleblower rights are human rights, which must be promoted and protected within the UN, as well as in affiliated specialized agencies and international organisations with immunity from national laws.

And extending whistleblower protections to:

UN peacekeepers, police officers, contractors, victims and any other person who provides information about misconduct that could undermine the organisation’s mission. The key to receiving protection should be the content of the information disclosed, not the identity of the person disclosing it.

Like much of the letter, that last point is applicable generally. It underlines the fact that a completely new framework for whistleblowers is required at every level, both nationally and internationally. The letter to the UN is part of an important move towards making that happen, in what could prove to be a key aspect of Snowden's long-term legacy.

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Filed Under: un, whistleblower protections, whistleblowers

The DOJ Isn't Interested In Protecting FBI Whistleblowers From Retaliation

from the a.-ignore-b.-drag-feet dept

You don't hear much about FBI whistleblowers. Many other agencies have had wrongdoing exposed by employees (and the government has often seen fit to slap the whistles out of their mouths with harsh prosecution), but the FBI isn't one of them. Forty-three years ago, whistleblowers broke into the FBI and retrieved damning documents, but no one's really broken out of the FBI to do the same. In fact, the FBI would rather not talk about whistleblowing at all.

An optimist might chalk this up to the FBI being a tightly-run organization that polices itself for malfeasance and wrongdoing. They'd be wrong, of course. Just within the past year, the FBI has twice thwarted its own oversight and may soon face budgetary constraints if it won't turn over the documents the DOJ's Inspector General is seeking.

There's a reason no one blows the whistle at the FBI and this GAO report spells it out: unlike every other government agency, the DOJ's internal policies contain nothing to shield FBI whistleblowers from retaliation.

Unlike employees of other executive branch agencies, FBI employees do not have a process to seek corrective action if they experience retaliation based on a disclosure of wrongdoing to their supervisors or others in their chain of command who are not designated officials. This difference is due, in part, to DOJ’s decisions about how to implement the statute governing FBI whistleblowers. When issuing its regulations in 1999, DOJ officials did not include supervisors in the list of entities designated to receive protected disclosures, stating that Congress intended DOJ to limit the universe of recipients of protected disclosures, in part because of the sensitive information to which FBI employees have access.

To ostensibly protect means, methods and (presumably) the country itself, the DOJ eliminated several options whistleblowers could pursue when taking their complaints through official channels. A 2012 Presidential Policy Directive aimed at increasing whistleblower protections failed to move the needle.

In response to this requirement, DOJ reviewed its regulations and in an April 2014 report recommended adding more senior officials in FBI field offices to the list of designated entities, but did not recommend adding all supervisors. DOJ cited a number of reasons for this, including concerns about striking the right balance between the benefits of an expanded list and the additional resources and time needed to handle a possible increase in complaints. By dismissing retaliation complaints based on a disclosure made to an employee’s supervisor or someone in that person’s chain of command, DOJ leaves some FBI whistleblowers—such as the 17 complainants we identified—without protection from retaliation.

The DOJ is plainly uninterested in sheltering those who would point out FBI wrongdoing. It has set up a minefield most whistleblowers are unable to navigate.

We concluded that, without clear information on how to make a protected disclosure, FBI whistleblowers may not be aware that, depending on how they report their allegation, they may not be able to seek corrective action if they experience retaliation.

So, with no roadmap and extremely limited protections, whistleblowers who do manage to bring their complaints up through proper channels are often subjected to retaliatory actions for which they have no remedy.

[I]n 2002, former FBI agent Jane Turner filed a whistleblower complaint with DOJ alleging that her colleagues had stolen items from Ground Zero after the September 11, 2001, terrorist attacks. She was then given a “does not meet expectations” rating, placed on leave, and notified of proposed removal.

This retalitation was reported by Agent Turner to the DOJ, which then slowly ground its heavy wheels of so-called justice for more than a decade.

[The] DOJ ultimately found in her favor in 2013—over 10 years later.

Turner's case isn't an anomaly. The GAO found that, while the DOJ was often quick to dismiss retaliation complaints simply because the whistleblower failed to properly navigate its labyrinthine reporting restrictions, it was seldom interested in moving quickly on behalf of those who managed to luck into complete compliance.

The 4 complaints we reviewed in our 2015 report that met threshold regulatory requirements and that DOJ ultimately adjudicated on the merits, took up to 10.6 years to resolve, and DOJ did not provide parties with expected time frames for its decisions throughout these cases.

The DOJ blames this on "case complexity" and "staffing priorities." The latter excuse is likely the most honest. The DOJ is far more inclined to prosecute whistleblowers than protect whistleblowers. Blowing the whistle at the FBI means being subjected to vindictive actions with little to no recourse. The DOJ may decide to take a whistleblower's case, but will do little, if anything, to escalate its response. In the meantime, whistleblowers are apparently supposed to take a number and wait things out in a hostile environment.

Will this GAO report result in better protections? Highly doubtful, considering a directive issued by the President's office itself failed to produce any significant change. Even the agency's inside oversight -- the Office of the Inspector General -- is finding the DOJ completely unresponsive to its complaints about FBI stonewalling and obfuscation. It's highly unlikely the DOJ will handle lower-level whistleblower complaints with more speed or openness.

The DOJ, along with the FBI, has successfully neutralized most forms of accountability. The OIG is openly ignored. FOIA requests are frequently greeted with massive amounts of withheld documents and redactions. When pressed, the nation's top law enforcement agency tends to wrap itself in a patchwork of undeclared wars (drugs, terrorism) and claims accountability will lead to an unsafe and unsecured country. Meanwhile, its own underling agencies go rogue while tangled, useless policies keep whistleblowers from ever opening their mouths.

Filed Under: doj, fbi, protection, whistleblowers

New Anti-Corruption Social Network In Russia Requires Numerous Personal Details To Join: What Could Possibly Go Wrong?

from the how-secure-is-that-database? dept

As the murder of the opposition politician Boris Nemtsov last week reminds us, the political situation in Russia is not just difficult, but extremely dangerous. Presumably hoping that technology might offer a relative safe way to cope with this situation, a Russian NGO has announced that it will be launching a nationwide social network dedicated to fighting bribery and corruption. You might expect that anonymity would be a crucial aspect, given the risks faced by those who choose to join. And yet, as this RT article explains, that's not the case (via @prfnv):

the new project will have one major difference from existing social networks -- a complete lack of anonymity. Membership will only be granted by invitation from existing members, and even when this condition is met, the institute that launches the project promises to open accounts only after verifying the identity of potential members in real life.

The users will have to provide a lot of details about themselves -- from name and date of birth, to place of work, e-mail and phone numbers. The people launching the project say that this is a necessary measure to prevent attempted slander, which they see as the main danger threatening their network.

That people could use the network to spread false accusations is certainly a risk, but hardly the main danger, which is surely that those accused of corruption may decide to settle things in the same way as Nemtsov's enemies. Creating a network of anti-corruption activists and lawyers will make its membership database extremely desirable for many nefarious actors, who would doubtless find things like place of work and phone numbers useful for future attempts to "dissuade" people from coming forward with information about bribe-taking. Let's just hope the new social network's security advisers are really good.

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Filed Under: anonymity, corruption, privacy, russia, social networks, whistleblowers

DOJ, Which Once Claimed James Risen's Testimony Was Necessary, Now Tries To Block Other Side From Using Him

from the funny-how-that-works dept

The James Risen saga is basically over, but ended in a bizarre way. As you hopefully recall, this case goes back many years, and involves the DOJ trying to convict Jeffrey Sterling, a former CIA official, of leaking info to Risen. However, Risen has made the compelling case that the DOJ's desire to involve him was an attempt to punish him for earlier work he'd done exposing questionable practices by the intelligence community -- and specifically to force Risen to give up a source, so that future whistleblowers can't trust him. This backfired massively, as Risen fought this entirely, promising never to give up his source, even as the issue went up the Supreme Court (which refused to hear the case), but technically ended with a court saying Risen had to give up his source. Risen still insisted that he would not, and he'd go to jail if he had to. This put Attorney General Eric Holder in a bit of a bind, as he'd promised not to put reporters in jail. Thus, last month, Holder blinked, saying the DOJ would not force Risen to give up his source. However, he was still supposed to testify, just not on that.

Last week, Risen took the stand and basically said absolutely nothing, leading the DOJ on Monday to tell the court that it wanted to "exclude James Risen as an unavailable witness." The filing is fairly amusing, as it admits that Risen is refusing to reveal anything:

Mr. Risen’s under-oath testimony has now laid to rest any doubt concerning whether he will ever disclose his source or sources for Chapter 9 of State of War (or, for that matter, anything else he’s written). He will not. As a result, the government does not intend to call him as a witness at trial. Doing so would simply frustrate the truth-seeking function of the trial.

But as you read it, you realize that the key reason for the filing isn't to admit defeat, but rather to block Sterling's lawyers from using Risen's refusal to testify (or the fact that, in previous filings, the DOJ had said, directly, that without Risen's testimony, they couldn't convict Sterling).

This is true irrespective of whether he is called by the government or the defense—he is unavailable to both parties. The law makes clear that testimony that is not subject to meaningful cross-examination regarding non-collateral matters is antithetical to the purpose of a trial and should be excluded.

And, specifically, please oh please, don't let Sterling's lawyers mention anything about all of this to the jury:

Moreover, since Mr. Risen is not available as a witness on the central issue in the case, the defendant should be prohibited from commenting on Mr. Risen’s failure to appear or suggesting that the government has failed to meet its burden because it did not call him as a witness.

In response, the judge refused the DOJ's request to declare Risen "unavailable" for both sides, and everyone's figuring out how to proceed, with Sterling's lawyers saying that they want to use earlier Risen testimony about how he had multiple sources for his book.

Either way, the DOJ comes out of this looking terrible, and James Risen has made it clear that, if you're a whistleblower, you certainly can trust him not to reveal who you are to the government...

Filed Under: cia, doj, eric holder, evidence, james risen, jeffrey sterline, leaks, sources, whistleblowers

Irony Alert: DOJ Leaked To Press Decision Not To Force Reporter James Risen To Reveal Who Leaked Info To Him

from the doj-made-a-lol dept

On Friday, we wrote about reports that the DOJ had decided not to force Pulitzer Prize-winning journalist James Risen to reveal an intelligence community source for a story he wrote years ago -- though he still may be subpoenaed and put on the stand about other stuff (and it's not entirely clear if he'll agree to do that). However, there was a bit of irony in all of this: the DOJ leaked this information to the press. Risen's lawyer told reporter Jana Winter that they hadn't received any official word when the stories started appearing in the press, and there hadn't been any official government filing. The NY Times reports the same thing. Instead, it was just reported in the press as "according to a person familiar with the decision."

In other words, it "leaked" from the DOJ.

Or, more specifically, it leaked from the DOJ that it wouldn't seek to put a reporter in jail for refusing to say who leaked other information to him, as it still looks to put that original leaker in jail.

The entire situation was driven by the DOJ's attempt to totally crackdown on leaks that the administration doesn't like. As we've discussed, the Obama administration has (like no other administration in history) declared war on leakers and whistleblowers. It has used the Espionage Act (which is supposed to be used against spies) more than double all other Presidents combined to prosecute those involved in leaks, including journalists. The administration has set up an "Insider Threat Program" and produced a document comparing leaks to "aiding the enemies of the United States."

And, yet... when the government leaks out information that makes the administration look good, suddenly no one has a problem. For years, even when there are leaks that might be said to "compromise national security," so long as they make the administration "look good" no one cares. There are no investigations or freakouts or threats to put reporters or leakers in jail.

And thus, here we are, with the final chapter in the ridiculous Risen intimidation saga involving the DOJ leaking to the press the information that it won't seek to put him in jail for not revealing who leaked him information.

I'm guessing that there will be no investigation at all into who "leaked" this particular information.

Filed Under: doj, eric holder, james risen, leaks, prosecution, subpoena, whistleblowers

Eric Holder Says He Regrets Lying To A Judge And Saying A Reporter Was A 'Co-Conspirator' But The Law Made Him Do It

from the uh,-no-it-didn't dept

Giving a talk at the Washington Ideas Forum, outgoing Attorney General Eric Holder spoke about two different (though, similarly named) journalists that the DOJ has been absolutely egregious in trying to abuse for the sake of questionable leak investigations. Regarding James Risen, the NY Times reporter who the DOJ has been pursuing and demanding he reveal sources concerning a leak (when it's clear the DOJ already knows the source and is just doing this to destroy Risen's credibility with sources), Holder says that the DOJ expects "a resolution" in the near future. That's not too surprising. Holder and the DOJ seem to realize that actually putting Risen in jail (the next step in the process) probably wouldn't go over very well.

But it's the other journalist where things get a bit dicier. That's Fox News reporter James Rosen (note the different letter from Risen). Rosen, you may recall, had his phone, email and security badge records grabbed by the government, after the DOJ told a court that Rosen wasn't a reporter, but "an aider and abettor and/or co-conspirator" in the "crime" of leaking classified information about North Korea from the State Department. It later came out that the DOJ actually pretended Rosen was involved in a bombing in its motions to the court.

Holder was asked if there was a decision during his tenure that he regretted, and he brought up the Rosen story:

Holder: I think that -- I think about the subpoena to the Fox reporter, Rosen. I think that I could have been a little more careful in looking at the language that was contained in the filing that we made with the court. He was labeled as a -- as a co-conspirator. I mean, you had to do that as a result of the statute, but there are ways in which I think that could have been done differently, done better. And that's one of the reasons why I thought the criticism that we received because of that -- and the AP matter as well -- was something that we had to act upon and why we put in place this review of our -- the way in which we interact with the media.

Except, as Julian Sanchez points out, that's completely bogus. Holder claiming they had to do that because of the statute is flat out opposites-ville. They had to do that because the statute doesn't allow them to spy on journalists. The law was designed to stop the DOJ from spying on journalists, and so the only way to break that was to lie to the court. The law in question -- 18 USC 793 is designed to only apply to the people actually committing the crime of leaking defense information -- and not to reporters.

Holder claiming that the statute effectively "forced" him into declaring Rosen a co-conspirator is ridiculous. The statute compels him not to seize Rosen's records. Holder is admitting that the DOJ lied to the court here and trying to blame the statute for that lie. That's astounding.

Filed Under: doj, eric holder, investigations, james risen, james rosen, leaks, reporters, terrorism, whistleblowers

Journalists Attack Obama Administration For Being Ridiculously Secretive And Vindictive

from the most-transparent-administration-in-history dept

Earlier this year, then NY Times Executive Editor Jill Abramson called out the Obama administration for being the most secretive in history, despite the claims of Obama himself that his would be "the most transparent administration in history." Not only has this administration used the Espionage Act to go after whistleblowers more times than every other administration in history combined, it's currently fighting a legal battle to put NYT journalist Jim Risen in jail for refusing to reveal a source. It's also denied more FOIA requests than any other administration in history. The White House has ridiculously tried to defend its "most transparent in history" claims by pointing to the fact that unlike previous administrations, this one releases visitor logs. Whoop. De. Doo.

At a big journalism confab in Chicago, apparently anger about the administration's unprecedented level of secrecy boiled over as journalists vehemently criticized the lengths to which this administration will go to block journalists and to create significant chilling effects.

"The White House push to limit access and reduce transparency has essentially served as the secrecy road map for all kinds of organizations — from local and state governments to universities and even sporting events," Brian Carovillano, AP managing editor for U.S. news, said during a panel discussion.

Reporters noted that sources are now afraid to talk to them, given the crackdown on leaks -- though, again, it only happens on leaks the administration doesn't like. When the leaks make the White House look good, no investigations, hounding or prosecutions happen. However, if you leak something the administration doesn't like -- such as blowing the whistle on corrupt government practices, the administration has an official policy that you are "aiding the enemy."

And while some might claim (incorrectly, usually) that there's a legitimate argument there when it comes to leaks involving national security, the crackdown goes way beyond that:

The AP's Washington chief of bureau, Sally Buzbee, said the Obama administration's efforts to control information extend even to agencies not directly involved in intelligence gathering. Some sources, she said, have reportedly been warned they could be fired for even talking to a reporter.

"Day-to-day intimidation of sources is also extremely chilling," she said.

Buzbee said she's frequently asked if the Obama administration, when it comes to transparency, is worse than the administration of President George W. Bush.

"Bush was not fantastic," she said. She added, "The (Obama) administration is significantly worse than previous administrations."

We tend to agree that the following statement is a ridiculous one in most situations, but since government officials seem to use it all the time, it seems worth asking: if they've done nothing wrong, what do they have to hide?

Filed Under: chilling effects, journalism, obama administration, secrecy, sources, transparency, vindictive, whistleblowers

Despite Its Enthusiasm For Edward Snowden, Switzerland Close To Passing Law To Make Whistleblowing Effectively Illegal

from the one-step-forward,-two-steps-back dept

Recently we wrote that Switzerland was keen for Edward Snowden to travel there to testify about US surveillance. Given that evident appreciation of the value of a whistleblower in revealing unsuspected wrong-doing, this news from Reuters that Switzerland's parliament is considering a law to tighten the rules governing this area is rather disappointing:

Although the bill aims to clarify a grey area of the law, it will effectively outlaw whistleblowing unless Swiss authorities -- renowned worldwide as a model of efficiency -- fail to follow correct procedures.

Apparently, this approach flows from the Swiss belief that employees have a fundamental duty to their employers, and so they must always report wrongdoings to them in the first instance. That's bad enough -- it could easily lead to the whisteblower being punished for speaking up -- but it gets worse:

Any response from the authorities -- even a decision not to investigate -- would nullify an whistleblower's right to go to the media, said Zora Ledergerber, owner of Integrity Line LLC, which advises companies on internal reporting systems.

Although that might seem to make sense in a country whose banking services pride themselves on their discretion, it's rather foolish, since it means that abuses and wrong-doing that could have been stopped will continue to fester, ultimately damaging the country and the rule of law there. The bill has been passed (original in German) by the Council of States, Switzerland's upper house, and now moves to the country's National Council for approval.

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Filed Under: ed snowden, switzerland, whistleblowers

The Government Doesn't Punish Whistleblowers; It Just Shoves Them In Closets Or Sends Them To The Basement

from the not-punitive,-just-really,-really-bitchy dept

More evidence of the US government's fabled whistleblower protections at work. While laws may prohibit direct retaliation for speaking up about misconduct, there's nothing in place to prevent an agency from taking a useful employee and Milton-ing them into irrelevance.

[Paula] Pedene, 56, is the former chief spokeswoman for this VA hospital. Now, she is living in a bureaucrat's urban legend. After complaining to higher-ups about mismanagement at this hospital, she has been reassigned — indefinitely — to a desk in the basement.

Now, the good news is that investigators are still trying to determine whether this reassignment to the depths of the hospital was retaliatory. The bad news is that even if they can prove this, there's likely nothing that can be done about it.

In the past, whistleblowers have had their desks moved to break rooms, broom closets and basements. It's a clever punishment, good-government activists say, that exploits a gray area in the law.

The whole thing can look minor on paper. They moved your office. So what? But the change is designed to afflict the striving soul of a federal worker, with a mix of isolation, idle time and lost prestige.

And, of course, this isn't an isolated incident. Another contractor interviewed spent 16 months in a basement office after alerting regulators about improper radioactive material processing. An Air Force chemist found himself sweeping the floor of his basement office after uncovering mismanagement. As for Pedene, her whistleblowing helped uncover an $11 million budget shortfall, one that led to the voluntary resignation of hospital's director. Instead of adding another accolade to her active 20 years of service, Pedene's office was moved as far away as possible from the rest of the hospital and her responsibilities almost completely eliminated.

Those in charge used this minor breach as the supposed justification for moving her downstairs.

The chief accusation was that Pedene had let her husband upload photos of a VA-sponsored Veterans Day parade onto her work computer. He was helping her finish a PowerPoint presentation she was working on. He was a non-VA employee, working on a VA computer.

The hospital refuses to address any questions about Pedene's situation, claiming it was a decision made by her previous boss -- one that was forced out during the recent investigation that uncovered the use of bogus wait lists to cover up how long patients were waiting for treatment.

The scant legal protections Pedene can avail herself of look much better on paper than in practice.

In theory, it is illegal to make the basement into a bureaucratic purgatory. In 1994, for instance, Congress prohibited agencies from making significant changes in a whistleblower's "working conditions" as punishment for speaking out.

But in practice, the situation is murkier. Some courts have said moving an employee to a basement or closet usually amounts to punishment. But others have said this is a decision that should be made case by case. How nice is the basement office? How big is the closet?

What makes this tougher for the people being relegated to basements or closets is there are no easily-definable damages to be pursued -- which makes it unlikely that many lawyers would be interested in pursuing the case. And so, the government gets away with it. It can still pretend it's looking out for whistleblowers while ignoring those who have simply been removed from their visible positions and offices and stripped of their responsibilities. All this does is guarantee that more and more malfeasance will be the result of very public leaks rather than issues that could be handled internally with a minimal of PR damage.

The government likes to actively punish leakers but it doesn't treat those who go through proper channels much better. It would apparently rather have abuse and misconduct remain out of sight and out of mind and remain secure in its delusion that its agencies are staffed with good people doing good work.

Filed Under: government, punishment, whistleblowers

Veterans Administration Inspector General Demands Whistleblower Documents Submitted To Government Watchdog Group

from the the-First-Amendment-is-no-match-for-our-subpoena-powers dept

The ongoing investigation on the Veterans Administration's ineptitude and abuse may soon be able to add exposed whistleblowers to its collateral damage. The VA's Inspector General has made the unprecedented move to subpoena documents turned over anonymously to independent, non-profit watchdog group Project On Government Oversight (POGO).

The Department of Veterans Affairs' in-house watchdog has demanded that the Project On Government Oversight turn over all information it has collected related to abuses and mismanagement at VA medical facilities, according to a subpoena delivered to POGO May 30.

The subpoena from the VA Office of Inspector General demands all records POGO has received from current or former VA employees, as well as any other individuals, including veterans. The subpoena asks for records related to "wait times, access to care, and/or patient scheduling issues at the Phoenix, Arizona VA Healthcare System and any other VA medical facility."

While on one hand, the information the IG is seeking is exactly the sort of data it needs to complete its investigation, the larger issue is the subpoena's potential to undermine the confidentiality promised to whistleblowers who submitted documents through POGO's VAOversight.org website. Nearly 700 people have turned over information to POGO's secure dropbox since the site's launch in early May. POGO advised submitters to take steps to maintain their anonymity when submitting (using TOR, not submitting docs from work phones, computers or fax machines, etc.) and all submissions were sent as encrypted messages.

Now, with a simple administrative subpoena -- one that isn't even signed by a judge -- all of this protection is being removed. Anyone who failed to take preventative measures, or might be traced back via other means, can now be exposed by the IG's efforts.

The current administration talks a lot about transparency and the importance of whistleblowers in keeping the government in line, but its actions have completely contradicted its spoken assurances. This administration has prosecuted more whistleblowers than all other administrations combined. Those who may be swept up by the IG's investigation include many who tried to alert the government of the VA's problems through proper channels, but turned to a third party when their grievances went unanswered.

POGO is fighting this subpoena and has sent a letter to the VA Inspector General apprising him of its non-compliance.

Our unwillingness to comply with the subpoena is consistent with our long history of protecting sources who come to our organization. POGO has consistently refused to turn over information and/or records about our sources, investigations, and practices when government agencies, Congress, and parties in civil and administrative cases made such requests, including requests made pursuant to a subpoena. POGO has always taken the position that the First Amendment protects POGO's right to protect the whistleblowers, sources, and insiders who come to us with information or assist in POGO’s investigations.

The letter further points out that there's little reason to believe that the Inspector General doesn't already have access to the sort of information its seeking.

The IG's office has provided no basis to suggest that the information possessed by POGO as a result of its investigation of the VA is not already available to the IG, including through the VA IG "hotline." Accordingly, the administrative subpoena is little more than an invasive fishing expedition.

The IG's subpoena also highlights a quick and dirty way to undermined protective measures. Peter Van Buren at Firedoglake points out that subpoenas like this make extra efforts like encryption completely worthless.

Edward Snowden, along with many others, has said that the best tool right now to defeat the NSA and other government spying is the use of encryption. It is possible that some forms of encryption are not breakable by the NSA. It is likely that breaking other forms of encryption is slow and/or expensive to do on a world wide web-scale. It is a race of course, between how many supercomputing algorithms the NSA can throw at the problem and the cleverness of the people creating new forms of better encryption.

If the government can access documents and information with a simple piece of paper– a subpoena– then all the encryption in the world is pointless.

This is part of the government's interpretation of the Third Party Doctrine, one that has made the Fourth Amendment almost completely useless.

DOJ has turned all that around. It claims now that under the Fourth Amendment, it can subpoena an Internet company such as Facebook and demand they look for and turn over all the records they have about Mr. Anderson. DOJ isn’t searching, per se– they are demanding Facebook do that for them, so no warrant is needed. Worse yet, DOJ believes it can subpoena multiple records, maybe all the records something like Facebook has, with one piece of paper. The same thing applies, DOJ claims, to email. If they came to someone’s home and demanded access to that person’s emails, it would require a specific search warrant. Instead, if DOJ issues a subpoena to say Google, they can potentially vacuum up every Gmail message ever sent.

So, while encryption may stymie the interception of communications, it doesn't do much good when the government arrives with a piece of paper asking for the unencrypted end result of these communications, especially one that is self-issued by the Inspector General with no additional legal scrutiny. POGO encrypted submissions but the IG's subpoena asks for everything its collected in unencrypted form ("fully legible and complete copies of the records"). The assurances given to anonymous whistleblowers by POGO are as meaningless as the assurances given to users of Lavabit's encrypted email service. The government doesn't mind much if you encrypt the "middle," because it can always just ask for stuff at either end.

Filed Under: administrative subpoena, inspector general, investigations, subpoena, va, veterans administration, watchdogs, whistleblowers
Companies: project on government oversight