Special Counsel Fails to Meet Legal Requirements; GAP Client Testifies Tomorrow

GAP client Richard Levernier’s four-year odyssey with the U.S. Office of Special Counsel (OSC) reached a bitter-sweet conclusion earlier this month. The OSC quietly vindicated his concerns about terrorist vulnerability at Department of Energy (DOE) nuclear weapons facilities – disclosures that cost Levernier his 23-year career as a nuclear security professional. DOE formally stripped his security clearance for unclassified whistleblowing, and transferred him to a windowless basement office to coordinate DOE’s foreign travel program.

Levernier will testify tomorrow, February 14, at a hearing of the House Government Reform Subcommittee on National Security, Emerging Threats, and International Relations. Chairman Christopher Shays (R-CT) has called the hearing to address the lack of legal protections for national security whistleblowers.

After reviewing a DOE report on Levernier’s charges that denied any ongoing weaknesses against terrorist threats, Special Counsel Scott Bloch commented that Levernier’s continuing evidence “cast doubt” on DOE’s conclusions “and the confidence with which DOE asserts its ability to protect the nuclear assets entrusted to its care.” Inexplicably, however, Bloch declined to determine whether the report passed or flunked statutory requirements for “reasonable” and statutory completeness – a judgment call he is required to make by the Whistleblower Protection Act.

The Special Counsel also dropped the longstanding OSC procedure when a report fails to meet these requirements – ordering the agency to resume efforts until there is a good faith resolution of the whistleblower’s charges. Although he found DOE’s post 9/11 efforts “particularly troubling,” Bloch simply asked DOE to act further, without orders to finish the job.

Levernier commented that the Special Counsel’s rhetorical vindication “was strong, but almost certainly DOE will ignore it without significant follow through from the President and Congress.”

“Bloch does not have the legal option to wash his hands of making the call whether DOE’s report passed statutory muster,” added GAP Legal Director Tom Devine, Levernier’s attorney. “He has made our country less safe by letting DOE off the hook with a report that resolves absolutely nothing about nuclear weapons vulnerability.”

Prior to 9/11, Levernier was DOE’s top quality assurance expert for safeguards and security. His clearance was officially stripped for unclassified whistleblowing disclosures protesting a systematic breakdown in the agency’s ability to defend nuclear facilities from terrorist attack, threat, and sabotage. Among his concerns after 9/11, Levernier dissented against plans to fight terrorists attacking nuclear facilities that are limited to catching them on the way out, with no contingency for suicide squads not planning to leave the facility they came to blow up.

In 2002, Levernier went the next step, filing a formal whistleblowing disclosure to the OSC, charging mismanagement and abuse of authority that was perpetuating a substantial and specific danger to public health or safety. Then-Special Counsel Elaine Kaplan found a “substantial likelihood” that he was right, ordering Energy Secretary Spencer Abraham to investigate and report back findings and solutions for any confirmed problems.

Kaplan separately determined that the retaliatory actions taken by DOE were illegal under the Whistleblower Protection Act (WPA). However, OSC had no jurisdiction to challenge DOE’s illegal suspension of Levernier’s security clearance, which was never reinstated.

Sec. Abraham signed a May 2003 DOE report which officially insisted that all security problems had been fixed, that Levernier’s information was dated, and that he was ignorant of reforms due to his lack of access to classified information.

Since this public denial, at least a dozen independent and internal DOE security reviews have reached the opposite conclusion about the quality of security at nuclear weapons facilities. These reports corroborated the specific issues Levernier identified, in some cases word for word, including a post-9/11 failure to modify the threat scenarios DOE prepares for.

Despite these findings and recommendations, Bloch failed to require any follow-up action from DOE, stating in a letter to President Bush and two congressional oversight committees that he was “unable to determine whether [DOE’s] findings appear reasonable.”

GAP’s Adam Miles, caseworker for Levernier, commented, “The OSC missed an opportunity to have a significant positive impact strengthening homeland security through a strategy that is better than threatening constitutional rights: End bureaucratic negligence and get prepared.”

Levernier offered to meet personally with Bloch in December to brief him on his concerns of continued DOE negligence on security at nuclear weapons facilities. Bloch refused, although he confirmed “there is more work to be done to safeguard the nuclear facilities of this great country. Your tireless efforts to this end have been laudatory.”

Devine added, “Mr. Levernier’s not tired, but his efforts are over, because DOE exiled him for blowing the whistle. Like all whistleblowers, he had no legal rights against security clearance harassment. Hopefully Mr. Shays’ hearings will help close this loophole, so whistleblowers can defend themselves when they try to defend the public.”