Summary

• Objects (2 modified, 1 added, 0 removed)
  • Caselist.RoundClass[34]
  • Caselist.RoundClass[35]
  • Caselist.CitesClass[73]

Details

Caselist.RoundClass[34]

EntryDate

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1		-2017-01-29 16:38:11.804
	1	+2017-01-29 16:38:11.0

Caselist.RoundClass[35]

EntryDate

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1		-2017-01-29 16:38:54.450
	1	+2017-01-29 16:38:54.0

Caselist.CitesClass[73]

Cites

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	1	+Counterplan text: The United States federal government should establish congressional oversight over the National Insider Threat Policy.
	2	+The plan’s establishment of oversight is key— employee education and strict legal review protects whistleblowers from federal retaliation— the ITP undermines the WPA and creates a chilling effect that deters whistleblowers now
	3	+Canterbury 14
	4	+(Angela, Director of Public Policy, “POGO's Angela Canterbury testifies on “Limitless Surveillance at the FDA: Protecting the Rights of Federal Whistleblowers” February 26, 2014, pg online @ http://www.pogo.org/our-work/testimony/2014/pogos-angela-canterbury-testifies.html //um-ef)
	5	+Whistleblowers are the guardians of the public trust and safety. Without proper controls at FDA and throughout the government, employee surveillance is a serious threat to whistleblower protections. The resulting chilling effect will significantly reduce accountability—thus keeping waste, fraud, abuse, and threats to public health and safety in the shadows. Whistleblowers also are among the best partners in crime-fighting. It is a well-known fact that whistleblowers have saved countless lives and billions of taxpayer dollars. A survey conducted in 2012 by the Association of Certified Fraud Examiners found that nearly half of occupational fraud cases were uncovered by a tip or complaint from an employee, customer, vendor, or other source.46 In the case of fraud perpetrated by owners and executives, more than half were uncovered by tips from whistleblowers. A 2011 academic study confirmed that whistleblowers play a bigger role than external auditors, government regulators, self-regulatory organizations, or the media in detecting fraud.47 But perhaps the best illustration of how whistleblowers can save taxpayer dollars is the more than $38 billion recovered since 1987 through the hugely successful False Claims Act (FCA), championed by Senator Grassley.48 The FCA prohibits a person or entity from fraudulently or dishonestly obtaining or using government funds. The law not only acts as a deterrent, but also incentivizes whistleblowing through the financial awards and strong protections against retaliation.49 Federal Circuit Court Judge Kenneth Keller Hall said that the FCA provisions supplement the government’s “regular troops” since it “let loose a posse of ad hoc deputies to uncover and prosecute frauds against the government."50 But unfortunately, the cost-benefit analysis for most whistleblowing is so often all cost to the whistleblower and all benefit to society. Professor Richard E. Moberly in his testimony before Congress aptly stated: Furthermore, almost all the benefits of a whistleblower’s disclosure go to people other than the whistleblower: society as a whole benefits from increased safety, better health, and more efficient law enforcement. However, most of the costs fall on the whistleblower. There is an enormous public gain if whistleblowers can be encouraged to come forward by reducing the costs they must endure. An obvious, but important, part of reducing whistleblowers’ costs involves protecting them from retaliation after they disclose misconduct.51 Whistleblowing works for the public, but not without strong protections for the whistleblower. Recognizing this, Congress has repeatedly strengthened the rights and procedures available to whistleblowers. In 2012, Chairman Issa and Ranking Member Cummings—along with Representative Van Hollen, then-Representative Platts, and their Senate colleagues—championed the latest enhancements to federal employee protections with the enactment of the Whistleblower Protection Enhancement Act.52 While these reforms go a long way to improve the prospects for whistleblowing on government wrongdoing, employee surveillance, left unaddressed, seriously undermines these and other statutory protections for whistleblowers that Congress intended. An Opportunity for Reform This committee’s attention to the unacceptable actions of the managers at FDA will hopefully serve as a catalyst for government-wide reforms. Certainly security concerns and available technology will outstrip the protection of civil liberties, whistleblower protections, and other constitutional rights unless there is a concerted effort to consider all of these goals together. We can and should move towards a better policy and to ensure more accountability now. But if left to their own devices, the agencies cannot be expected to get this right. The FDA and other agencies should not be in the surveillance or law enforcement business. Federal agencies cannot be allowed to police themselves—that is why we have IGs, the OSC, DoJ, and Congress. Investigations of unauthorized, illegal disclosures of information and other criminal misconduct must be conducted by law enforcement investigators—such as the FBI or the Inspectors General—not bureaucrats. While we acknowledge there may be a very limited need for agencies to gather evidence of wrongdoing by employees when there is reasonable suspicion of non-criminal misconduct, the electronic surveillance is ripe for abuse—as demonstrated by the FDA. Even with just cause and proper controls, it will be difficult, if not impossible to ensure constitutional rights are not violated. To what end? As with the NSA domestic surveillance, the risks to our rights may be greater than the ability of the surveillance to protect against risks to security. On September 12, 2012, FDA Commissioner Hamburg issued a memorandum directing the Chief Information Officer (CIO) and Chief Counsel to “promptly develop a written procedure” for employee surveillance that includes some safeguards (Hamburg Memo).53 Presumably, that written procedure is embodied in the interim policies and procedures established last September by the FDA in its Staff Manual Guide (Interim Policy).54 No doubt the FDA is in a tough spot, attempting to put into place a process that is more proscribed for surveillance critics, but also placating the lawyers for drug and device companies that demand that information be kept confidential. Needless to say, the FDA doesn’t have it right yet. Nothing in this policy would prevent the FDA Commissioner or Chief Operating Officer from using information collected by the surveillance as retaliation for whistleblowing or providing it to others who might. The policy does little to lift the chilling effect at FDA that fosters waste, fraud, abuse, and threats to public health and safety. How can the FDA ensure the public’s health and safety if scientists and physicians are too afraid to come forward when deadly mistakes are made? Instead, the interim policy would allow the FDA managers to control a vast and far-reaching surveillance program without any oversight from an independent outside entity. Rather than protect whistleblowers from unwarranted FDA surveillance, this policy protects the FDA from whistleblowers and shields it from accountability. Simply stating that the FDA will follow existing laws to protect whistleblowers is not enough—the procedures do not build in strong, substantive safeguards. The Interim Policy does attempt to protect some sensitive communications by prohibiting the targeting of communications with law enforcement, the OSC, members of Congress or their staff, employee union officials, or private attorneys. However, it does not include a similar prohibition on other protected disclosures—most notably, public whistleblowing, which is protected as long as the disclosure of the information is not prohibited under law. Congress protected public whistleblowing because we live in a democracy that relies on an informed public and freedom of the press. In numerous instances, threats to public health and safety, waste, fraud, and abuse and other wrongdoing would never have come to light or been addressed without public whistleblowing.55 The FDA has not ensured employees, contractors, and grantees can exercise all of their legal rights without fear of retaliation. Thus, any final policy must prohibit specifically monitoring communications with anyone that may include a protected disclosure. According to the Whistleblower Protection Act, these communications would include a reasonable belief that the disclosure evidences “any violation of any law, rule, or regulation; or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.'56 In practice, it may be difficult, if not impossible, to prevent the inadvertent capture of protected disclosures while monitoring employee communications. Therefore, any final policy must mandate a legal review and express authorization before any potentially protected communication that is collected is shared. Notification of potential legal pitfalls to recipients of collected information, as called for in the Hamburg Memo, is woefully insufficient.57 The FDA must do more to ensure all agency personnel and federal fund recipients are better trained in whistleblower protections. Under the WPA, it is the responsibility of the head of each agency, in consultation with the Office of Special Counsel, to ensure that agency employees are informed of the rights and remedies available to them under the Whistleblower Protection Act.58 The OSC, has a certification program which allows agencies to demonstrate that they have fulfilled this legal obligation. Last year, only three agencies sought and received certification—and, remarkably, the FDA was not one of them.59 Clearly, certification should not be voluntary. Last December, in its second National Action Plan for the Open Government Partnership, the Obama Administration committed to taking steps over the next two years with the stated goal of strengthening and expanding protections for federal whistleblowers.60 These commitments include mandating participation in the Office of Special Counsel’s Whistleblower Certification Program. However, Congress should ensure that agency compliance with the WPA notification requirement and certification will continue into the future by putting the requirement into statute. Federal contractors and grantees also are required to notify their employees of the whistleblower protections available to them.61 There should be a mechanism to certify this compliance as well. Perhaps this could be part of the contracting or grant-making process, or the Whistleblower Ombudsmen in the Offices of Inspectors General could play a role. The Inspectors General have responsibilities to conduct investigations of claims of retaliation by contractor and grantee employees, as well as by national security and intelligence community workers.62 Agencies are currently certifying compliance with Presidential Policy Directive 19, which protects national security and intelligence community whistleblowers. These certifications should be made public, but so far only the Department of Defense has done so. Additionally, a memo and staff manual guide will not alone ensure that privacy, whistleblower, and civil service rights are protected in employee surveillance. The policies and procedures for safeguarding employee rights whenever investigations or surveillance is conducted should include penalties for violations and should have the force of law. Therefore, a permanent regulation for all of HSS—not just the FDA—would be most appropriate. However, there ought to be a government-wide approach. The Department of Justice has the appropriate legal expertise for developing such policy, in consultation with the OSC and MSPB. Moreover, the FDA is only attempting to write a policy ad hoc because of all the unwanted attention it’s receiving. But what is to prevent other agencies from spying on employees without regard to the legal rights of these employees? Congress and/or the President must mandate a government-wide policy to protect whistleblower and other constitutional rights and prevent future abuses. Of course, interfering with communications to Congress63 and retaliating for whistleblowing64 is against the law. Although the law does protect the identity of whistleblowers in other ways—the OSC and IG are prohibited from disclosing the identity of whistleblowers except in certain circumstances65—there is little to prevent other agencies from identifying whistleblowers by collecting communications. Congress should consider amending the WPA and contractor protections to specifically prohibit an agency from using collected communications to identify a whistleblower. Today, we don’t know nearly enough about the scope of employee surveillance across the government. We hope that this committee will order a comprehensive study of how agencies are currently conducting surveillance of employees while protecting their rights. Far more needs to be known about current practices, legal protections, effectiveness, and cost. A government-wide study by the Government Accountability Office (GAO) and/or the Merit Systems Protection Board (MSPB) would provide the executive branch and Congress with a more complete picture and recommendations for best-practice policies.66 Naturally, there also must be a different approach with the ever-growing intelligence and national security workforce. More and more of the federal workforce is labeled as national security sensitive—and there is a jaw-dropping lack of oversight. The number of people cleared for access to classified information reached a record high in 2012, soaring to more than 4.9 million.67 Add to that untold numbers of civil servants and contractors without access to classified information, but in positions labeled as national security sensitive.68 In order to prevent leaks of classified information, it is critical that there are truly safe channels for legal disclosures. We have long been concerned about the potential for abuse of whistleblowers as a result of Insider Threat programs mandated by the President and Congress.69 The program pits employees against one another,70 creating an atmosphere of suspicion and intimidation likely to silence would-be whistleblowers. Intended to protect national security, implementation of the Insider Threat Program at agencies that have little to do with national security issues suggests a serious overreach. Blurring the line between spies and whistleblowers can only harm national security. An investigation by McClatchy last year discovered that agencies were using the Insider Threat Program as grounds to pursue unauthorized disclosures of unclassified information—information that whistleblowers can legally disclose to anyone under current law.71 We hope this committee will also conduct rigorous oversight of whistleblower protections for the national security and intelligence community workforce. Importantly, we must not lose sight of what brought us here today. Scientists at the FDA were concerned about a device approval process that they believed might put lives at risk. We urge you to ensure that the critical work being done by the CDRH puts the public’s health and safety first. Bureaucrats at FDA should not be allowed to overrule the findings of expert scientists and physicians, except under extraordinary circumstances. There are no criminal penalties for FDA officials who allow unsafe devices to be approved. FDA officials should be held accountable for approving ineffective or unsafe products, and flawed devices must be taken off the market. There must be far more transparency and less deference to the demands for confidentiality by the drug and device companies. Finally, please do all you can to ensure the FDA whistleblowers get the justice that they deserve and that FDA managers are held accountable for any violations of the rights of the scientists and physicians who sought to make medical devices safer and more effective. Thank you for the opportunity to testify before you today. POGO and the Make It Safe Coalition pledge to continue to work with you to fulfill the promise of a government that is truly open and accountable to the American people. I look forward to your questions.
	6	+Solves the case – creates Congressional oversight that prevents militaristic overreach of power
	7	+Goodman 13
	8	+(Melvin, PhD, former CIA Analyst, adjunct professor at Johns Hopkins University, former professor of international relations at the National War College, senior fellow at the Center for International Policy, “The Need for National Security Leaks,” pg online @ https://consortiumnews.com/2013/06/19/the-need-for-national-security-leaks/ //um-ef)
	9	+The attack line against whistleblowers Bradley Manning and Edward Snowden – that they should have gone through “proper channels” – ignores that those oversight channels have been badly corrupted over the past several decades. That has left Americans dependent on out-of-channel leaks, says ex-CIA analyst Melvin A. Goodman. A major problem in the United States is not there are too many whistleblowers … there are too few. Where were the whistleblowers when the Central Intelligence Agency was operating secret prisons; conducting torture and abuse; and kidnapping individuals off the streets in Europe and the Middle East and turning them over to foreign intelligence agencies that conducted torture and abuse? Where were the whistleblowers when the National Security Agency violated the Fourth Amendment of the Constitution against “unreasonable searches and seizures” and conducted widespread warrantless eavesdropping? Where were the whistleblowers when the State Department permitted the use of a consulate to serve as a cover for an inadequately protected intelligence platform in Benghazi? Where were the whistleblowers when the Pentagon was building secret facilities in North Africa and the Arabian Peninsula in order to conduct military strikes in countries where the United States was not at war? President Barack Obama, a Harvard-trained lawyer and former professor of constitutional law, has made it particularly difficult for whistleblowers and has displayed a stunning disregard for the balance of power and the need for oversight of foreign policy decision-making. He has pursued more leak investigations than all previous presidents combined since the passage of the Espionage Act in 1919. Several press disclosures have been referred to the Justice Department for investigation, and in May 2013 the department subpoenaed two months of records for 20 telephone lines used by Associated Post reporters and editors. This was the most aggressive federal seizure of media records since the Nixon administration. Attorney General Eric Holder even departed from First Amendment norms by approving an affidavit for a search warrant that named a Fox News reporter as a possible co-conspirator in violations of the Espionage Act, because the reporter might have received classified information while doing his job. President Obama has also inexplicably contributed to the need for whistleblowers by weakening the traditional institutions for oversight in the national security process, the Office of the Inspector General. Inspectors General are not popular institutions within the federal government, but they are essential for keeping the government honest by unearthing fraud, abuse and other illegal activities. The Obama administration from the outset focused on weakening the OIG at the CIA by taking more than a year and a half to replace an outstanding IG, John Helgerson, whose staff had exposed the improprieties linked to extraordinary renditions as well as torture and abuse. The most outrageous pursuit of a whistleblower was conducted against Thomas Drake, who determined that NSA eavesdroppers were squandering hundreds of millions of dollars on failed programs while ignoring privacy issues. Drake took his issues to the IG at NSA, the IG at the Pentagon, and to the congressional intelligence committees. (I am aware of individuals who have contacted congressional staffers with issues that required congressional scrutiny, but were warned that they would not receive a friendly reception from key members of the committee.) After failing in these efforts, Drake turned to a reporter from the Baltimore Sun. As a result, Drake faced ten felony charges involving mishandling of classified information and obstruction of justice, which a judge wisely dismissed. The case of Bradley Manning also demonstrates the mindset of the Obama administration and the mainstream media. Although Manning has entered a plea of guilty to charges that would give him a 20-year prison sentence, the government is pursuing a charge of aiding the enemy, which would mean a life sentence. The government has also ignored the Sixth Amendment’s guarantee of a “speedy and public trial,” with Manning’s trial beginning on June 3, nearly three years after his arrest. The military handling of Manning, particularly its imposition of unconscionable solitary confinement, has amounted to abuse and is in violation of the Eighth Amendment’s prohibition of “cruel and unusual punishment.” The scant coverage of the trial in the press is another example of the marginalization of a whistleblower. The absence of checks and balances in the national security system over the past ten years has virtually assured the abuse of power that has taken place. In general, Congress has acquiesced in the questionable actions of both the Bush and Obama administrations since 2001, permitting foreign policy to be the sole preserve of the Executive Branch and not the shared responsibility of the President and the Congress. Congressional intelligence committees have become advocates for the intelligence community, particularly the CIA, instead of rigorous watchdogs. Similarly, the Armed Services committees have been advocates for the Pentagon and have not monitored the abuses of weapon’s acquisitions programs. Since the Vietnam War, we have observed a system of judicial tolerance, with the Supreme Court only intervening on foreign policy matters to endorse the policies and powers of the President. This deferential attitude toward the White House has resulted in an absence of judicial scrutiny of illegalities, including warrantless eavesdropping and the destruction of the torture tapes at the CIA that documented torture going beyond methods authorized by the Justice Department. Ironically, the destroyer of the 92 videotapes of interrogations, Jose Rodriquez, who ignored a White House order not to destroy the tapes and should have faced at least obstruction of justice charges, has published a book sanctioned by the CIA that maligns the OIG for a “holier-than-thou attitude and the prosecutorial ways they routinely treated fellow CIA employees.” In addition to the failure of Congress and the courts to provide necessary regulation and oversight of the national security process, the mainstream media has been complacent about its watchdog role regarding secret agencies in a democratic arena. The media require the efforts of contrarians and whistleblowers in order to penetrate the secrecy of the policy and intelligence communities, but typically ignore the reprisals taken against whistleblowers. Often, they disdain the information provided by whistleblowers that is critical of senior officials and government agencies – preferring to protect their access to these officials. David Ignatius of the Washington Post falsely claimed that journalists “instinctively side with leakers,” but he was quick to ridicule Edward Snowden who has exposed NSA’s spying on millions of Americans‘ phone records and the Internet activity of hundreds of millions of foreigners. Ignatius, moreover, has been an apologist for the CIA and has relied on clandestine operatives to present a one-sided picture of the CIA’s National Clandestine Service. His novel (Agents of Innocence) provided a laudatory account of CIA tradecraft, relying on sensitive leaks from a senior operations officer. My own experience with the mainstream media as a whistleblower is revelatory. During my congressional testimony in 1991 against the nomination of Robert M. Gates as director of CIA, I provided background information to Elaine Sciolino of the New York Times in order to counter malicious rumors emanating from the White House that was designed to compromise my credibility. Sciolino initially reported this information accurately, but then tilted to support Gates’s confirmation. In a conversation several weeks after the confirmation hearings, Sciolino explained that it was becoming obvious that Gates would be confirmed and would be an important source to her as a CIA director. She added that, as I would return to the National War College as a professor of international relations, I would be of little further use. Sciolino noted that whistleblowers make good sources only in the short run, while journalists must rely on policymakers for long-term access and should not gratuitously offend them. This explains the conventional analysis offered by the press corps and its reluctance to challenge official sources. As a result of the imbalance in the process of foreign policy decision-making, we have come full circle from President Woodrow Wilson, who wanted to make the “world safe for democracy,” to Presidents George W. Bush and Obama, who find the world too dangerous to honoring constitutional democracy. The excesses of the Vietnam War; Watergate; Iran-Contra; and the Global War on Terror have contributed to the creation of a dangerous national security state and a culture of secrecy. Whistleblowers can help all of us decide whether the ends justify the means regarding these excesses. Meanwhile, secrecy itself has fostered dangerous ignorance in the United States. The overuse of secrecy limits necessary debate and dialogue on foreign policy and deprives citizens of information on which to make policy and political judgments. Only a counter-culture of openness and a respect for the balance of power in the conduct of foreign policy can reverse the damage of the past decade. As long as Congress defers to the President in the conduct of foreign policy; the courts intervene to prevent any challenge to the power of the President in the making of foreign policy; and the media defer to authorized sources, we will need courageous whistleblowers.

EntryDate

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	1	+2017-01-29 16:38:56.315

Judge

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	1	+Zhou, Paramo, Phillips

Opponent

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	1	+West Ranch JW

ParentRound

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	1	+35

Round

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	1	+Quarters

Team

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	1	+La Canada Zhao Neg

Title

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	1	+JANFEB - CP - Whistleblowers

Tournament

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	1	+Emory