Office of Special Counsel's War On Whistleblowers

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TOOLS E-mail article Print article BACKTALK E-mail the editor RELATED ARTICLES Karl Rove's Least Likely Interrogator: Scott Bloch and the Office of Special Counsel

Bloch says he did not dismiss any cases improperly, but was simply trying to reduce the osc's perennial backlog. Before his tenure, he points out, some whistleblowers died while waiting for a response to their complaints. "If outside advocacy groups want to throw rocks at me, that's fine. We can take criticism. But it's really unfair to federal workers, and it's really unfair to the career staff here who have been working their tails off to bring justice in a more timely fashion."

It's those same career staffers, though, who have become Bloch's harshest critics. Weeks before the controversy over the dismissed cases erupted, Bloch announced, with no warning, that he was reassigning 12 staffers—about 10 percent of the total osc workforce, and the majority of them his perceived critics—to field offices across the country. They had 10 days to accept, or else they'd be fired. (Ten ultimately resigned.) Three months later, four Washington-based advocacy groups and an anonymous group of current and former osc employees—some affected by the transfers, some not—filed a complaint against Bloch with his own office. The transfers, says the employees' lawyer, Debra Katz, were retaliation against Bloch's critics, those perceived to be loyal to his predecessor, and those seen to have a "homosexual agenda."

Members of Congress also considered Bloch's reorganization suspicious. During a Senate oversight hearing in May 2005, Senator Daniel Akaka (D-Hawaii) said he was "alarmed" by the restructuring—especially given that it came on the heels of a $140,000 outside evaluation of the office that had not recommended anything of the kind.

So that Bloch wouldn't have to investigate himself, the complaint against him was ultimately referred to the inspector general in the federal Office of Personnel Management. The investigation has been under way for more than a year, and there have recently been reports in the conservative press—which has cast Bloch as a martyr to liberal and gay activism—that the White House may be trying to cut him loose. "Bloch has been ostracized by the White House and was privately sent word that he should resign," the Weekly Standard reported in October. Bloch would neither confirm nor deny the report, saying only, "I look forward to being exonerated. There simply is no truth to the allegations, and I stand by that."

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

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

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

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

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

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Illustration by: Steve Brodner

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