 Dear GAP Supporter:
When former federal air marshal Robert MacLean discovered that the Transportation Security Administration (TSA) was planning to cut costs by removing air marshals from flights – at a time during heightened intelligence warning of hijackings – he did the right thing and blew the whistle. Many senators, at the time, praised the warning and fixed the situation by calling for the TSA to correct it (which the agency did). But MacLean was fired for his disclosure, and the government board that was supposed to protect him from retaliation sided with TSA.
Now, MacLean has one last chance to appeal the ruling made by the U.S. Merit Systems Protection Board. Representatives Carolyn Maloney (D-NY) and Dennis Kucinich (D-OH), plan to submit a friend of the court brief in defense of MacLean.
The retaliation against MacLean sets a dangerous precedent for whistleblowers who want to speak out. In his case, TSA retroactively marked his disclosure as "Sensitive Security Information" (SSI) three years after the fact, and then used that marking to retaliate against MacLean.These types of secret classifications are a concept so broad that they can be applied to any disclosure, if certain Department of Homeland Security officials decide that such an action would "be detrimental to the security of transportation."
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 Giraffe Heroes ProjectTo start the new year, Marine Corps whistleblower Franz Gayl – who recently was allowed to return to work in a remarkable victory for a Defense Department employee – received a Giraffe Commendation, an honor awarded by the nonprofit Giraffe Heroes Project to people who "stick their necks out for the common good." From the organization's website:
Franz Gayl is a committed Marine vet, loyal as all good Marines are, to the Corps. Working as a civilian advisor in the Pentagon, he saw reports from combat officers that Humvees were death traps for Marines and soldiers in Iraq. Field commanders were asking for the better-armed MRAP (Mine Resistant Ambush Protected) vehicle. It wasn't happening. Gayl pushed Pentagon channels. Nothing happened. So he went to the press and to Congress. The Pentagon took away his security clearance, making it impossible for him to work. He's widely credited with the Defense Department finally ordering the MRAPs and with the Secretary of Defense proudly saying they were saving thousands of lives. An official inspection of Gayl's case ordered the Pentagon to re-instate him. Do you wonder how many soldiers and Marines died or lost limbs during the years it took to answer the field commanders' urgent request?
GAP commends the Giraffe Heroes Project wholeheartedly, both for recognizing Franz' role in protecting our troops, and for being so supportive of whistleblowers in general. At GAP, we strongly believe that the tribulations of whistleblowers should be known, and that all citizens should be made aware of how important whistleblowers are to democracy. Whistleblowers should be honored for their courage and standing up for the truth. The Giraffe Heroes Project helps make this happen.
Ironically, the first day he was back on the job, Gayl's new supervisor announced he would be demoted and stripped of all science and technology" duties. Apparently the Marines' response to lifesaving whistleblowing is "Never Again." So much for the rule of law.
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  On Tuesday, Senator Claire McCaskill (D-Mo.) chaired a bipartisan hearing of a subcommittee of the Senate Homeland Security & Governmental Affairs Committee. The purpose of the hearing, "Whistleblower Protections for Government Contractors" was to build support for the Non-Federal Employee Whistleblower Protection Act (S. 241), legislation that seeks to expand and make permanent whistleblower protections for government contractor employees. These protections were initially passed in the 2009 stimulus law.
Senator Rob Portman (R-Oh), the former Office of Management and Budget chief, participated supportively. From GovExec:
Sen. Rob Portman, R-Ohio, noted that with "half a trillion dollars a year, or 15 percent of the budget," being spent on contractors, it is time to rethink the 19 current laws. "Whistleblowers are the eyes and ears of all of us, and are a vital communications link between daily program managers and those in Congress responsible for oversight," he said.
The House Oversight and Government Affairs Committee already has approved a two year pilot experiment in jury trial rights for contractor employees as part of HR 3289, the Whistleblower Protection Enhancement Act (WPEA), but the McCaskill stimulus provisions are not included in S. 743 – the Senate version of the WPEA.
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Marine Corps About-Faces on Security Clearance
 Today, GAP is pleased to announce that GAP client and Marine Corps whistleblower Franz Gayl – who exposed the Corps' failure to provide American troops with Mine Resistant Ambush Protected vehicles (MRAPs) in a timely manner – has received notice that his security clearance eligibility has been reinstated, and as such, he will resume his regular work duties soon.
Gayl was exiled from his Pentagon job after Marine Corps officials suspended his security clearance for failing to turn over a flash drive that he did not possess, with a serial number that the manufacturer said did not match any they had on record. This news comes shortly after the Corps failed in efforts to suspend him indefinitely without pay.
This action is a victory for the whistleblower who is credited with getting MRAPs delivered to American troops, which former Secretary of Defense Robert Gates stated saved "thousands of lives." The Corps was set to indefinitely suspend Gayl without pay last month, when the Office of Special Counsel (OSC) – the federal agency charged with protecting federal whistleblowers and investigating their disclosures – filed an October 13 stay request with the Merit Systems Protection Board (MSPB), seeking to prevent the action. That 45-day stay was granted to give the OSC time to investigate the proposed suspension and decide whether to take further steps in the matter. Gayl's attorneys at GAP argued the salary cutoff was an effort to starve Gayl out of the Marines without waiting for an official decision on his security clearance.
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 Dover Air Force Base in Delaware is the main entry point for most of the nation's war dead. Photo courtesy of Flickr user BiggunbenI wrote last week about the Office of Special Counsel's (OSC) investigation into grotesque mishandling of soldiers' remains at Dover Mortuary. Courageous whistleblowers and a revamped OSC led by Carolyn Lerner deserved gratitude, I wrote, "for trying to ensure that our fallen are treated with reverence, dignity and respect, not treated like pieces of garbage." Unfortunately, the simile was literally true, as WaPo later reported:
The Dover Air Force Base mortuary for years disposed of portions of troops’ remains by cremating them and dumping the ashes in a Virginia landfill . . .
The lame response from the Air Force demonstrates the lack of accountability:
Asked if it was appropriate or dignified to incinerate troops’ body parts and dispose of them in a landfill, [Air Force’s deputy chief for personnel Lt. Gen. Darrell G.] Jones declined to answer directly. “We have recognized a much better way of doing things,” he said. “Let me be emphatic: I think the current procedures are better.”
As is too often the case when whistleblowers expose misconduct, WaPo reports today that the whistleblowers received more punishment than the officials responsible for the disrespectful mistreatment of soldiers' remains.
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 Courtesy of Flickr user steakpinballThe first time I heard the words "stare decisis" was my in my first term at law school in a rainy corner of England. My tutor explained that stare decisis is an accepted legal convention by which courts are bound by previous decisions they have made and by those of higher courts – also known as binding precedent.
The purpose of this principle is to ensure legal certainty and fairness for litigants. It also means there is a built-in check on judicial activism, so that society is less likely to end up with 'Judge made law'.
In United Kingdom courts, stare decisis is an accepted convention in judicial decision-making, and is only occasionally challenged. So, as a lawyer working on whistleblowing issues in the UK, I was very interested to come across this term several years after law school when I attended The Matthew Fogg Symposia on the Vitality of Stare Decisis in America in October, an event sponsored by the National Forum of Judicial Accountability (NFoJA) and GAP at the University of Baltimore.
The relationship between whistleblowing cases and stare decisis is not a connection that I have made while practicing in the UK. While there have been moments of judicial activism in UK courts (most notably, Lord Denning sitting in the Court of Appeal during the 1970s), our courts will generally defer to Parliament and recognize that law-making should be left to the legislature. So I was surprised to attend a conference dedicated to the issue of stare decisis, and to learn that that this was problematic for US whistleblowers.
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Yesterday, the law firm of Katz, Marshall and Banks (KMB) upped its pressure on the government to immediately release the findings from an investigation into alleged misconduct at U.S. Office of Special Counsel – the federal agency charged with upholding the rights of federal whistleblowers – under former Special Counsel Scott Bloch's tenure. The investigation concluded nearly four years ago, but to date no information has been made publicly available.
In 2005 the Office of Personnel Management Inspector General (OPM IG) opened an investigation into alleged misconduct at the OSC. This investigation was prompted in part by an OSC complaint that GAP and other stakeholders filed to address a litany of abuses that allegedly took place at Bloch's directive. KMB, in a letter addressed yesterday to the Chair of the Council of the Inspectors General on Integrity and Efficiency (CIGIE), asserts:
This complaint was and is a matter of significant public concern, given its allegations of whistleblower retaliation by the agency charged with safeguarding the federal workforce against whistleblower retaliation; politically and religiously-based hiring for career positions; discrimination on the basis of sexual orientation or perceived sexual orientation; refusal to enforce federal merit systems protection laws; dismissal of hundreds of OSC charges without investigation; placing unlawful "gag orders" on federal government staff; and deliberate interference with a federal IG investigation
Last year Bloch pleaded guilty to misdemeanor contempt of Congress, for withholding evidence during a Congressional investigation. After being sentenced to a one-month jail term, he withdrew his guilty plea and the case remains stalled in the courts. Concerned that OPM may use this delay as pretext to continue withholding its findings, KMB is urging CIGIE to compel OPM to release the results of its investigation.
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