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Prosecutions Up, Transparency Down

Obama’s War on Whistleblowers

by LINDA GREENE

Teresa Chambers is the luckiest whistleblower in the United States. She lost her job as the first woman chief of the U.S. Park Police after she told the media in 2004 that the department was below the number required to perform the job adequately. She sued, and in January 2011 won her case.

But her victory is a rarity in the 21st century as President Barack Obama, who as an Illinois senator was instrumental in passing legislation to protect government whistleblowers, has effectively criminalized public servants who risk their jobs to speak out and expose waste, corruption and unethical behavior among their colleagues.

When campaigning in 2008, Obama promised to protect whistleblowers, saying their “acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled,” ABC News’ Megan Chuchmach and Rhonda Schwartz reported on Aug. 4, 2009.

The New Yorker’s Jane Mayer agreed in a May 23, 2011. “When President Barack Obama took office, in 2009, he championed the cause of government transparency and spoke admiringly of whistle-blowers, whom he described as ‘often the best source of information about waste, fraud, and abuse in government,’” she wrote. “But the Obama Administration has pursued leak prosecutions with a surprising relentlessness.”

Since he became president, Obama, acting under the Espionage Act, has indicted five whistleblowers who allegedly leaked sensitive government information, the New York Times reported on June 11. “In 17 months in office, President Obama has already outdone every previous president in pursuing leak prosecutions.”

In an April 27 e-mail, Paula Dinerstein, an attorney with the Washington-based Public Employees for Environmental Responsibility (PEER), a nonprofit, public interest law firm, said whistleblower in federal law “includes one who discloses substantial and specific dangers to public health or safety.”

The most famous case is that of Pfc. Bradley Manning, an army intelligence analyst who allegedly revealed confidential government documents to Wikileaks. Before Manning had a trial or was convicted of a crime, Obama declared him guilty. “He broke the law,” the president said in April at a fundraising event in San Francisco. The Department of Defense has since charged Manning with “aiding the enemy,” a crime punishable by death.

A lesser-known case is that of Thomas Drake, a senior executive at the National Security Agency, who was indicted in 2007 for leaking top secret defense documents to a Baltimore Sun reporter. Mayer’s New Yorker article is titled “The Secret Sharer: Is Thomas Drake an enemy of the state?”

The effect of these cases has been to criminalize whistleblowing and dissent.

***

As chief of the U.S. Park Police, she was responsible for the safety and security of some of America’s most significant symbols of freedom — including such sites as the Washington Monument, the Statue of Liberty, the Golden Gate Bridge area and the area surrounding the White House.

Chambers’s troubles began in 2004, when she spoke frankly to the media, as her superiors had instructed her to do. In response to a Washington Post reporter’s question about Park Police staffing, she said her department was below the number required to perform the job adequately.

As reported in an editorial in the Jan. 11 issue of the Post, the department “had been forced to cut back on patrols beyond the Mall, she said, because of Interior Department orders requiring more officers to guard downtown monuments in the aftermath of the 2001 terrorist attacks. Traffic accidents … have increased on the Baltimore-Washington Parkway, which now often has two officers on patrol instead of the recommended four.”

Chambers was only stating the facts. According to the Post editorial, “She did not breach federal law by revealing classified information. Nor did her statements put lives at stake; if anything, her honest appraisal served to alert the public and lawmakers to real dangers.”

Chambers’s bosses in the Interior Department confiscated her gun and badge and placed her on administrative leave immediately thereafter, eventually firing her.

“That’s unfortunate,” Chambers said, “when we’re taught as little kids [to] speak up for what’s right, make sure [that] harm doesn’t fall on anyone else. When we try to do that, we find ourselves on the losing end.”

After a legal battle fought in administrative agencies and federal courts, Chambers won her case in January 2011 and was reinstated in her job. The resolution of the case was a long time coming — seven years, to be exact. But her victory was complete.

“The thorough and thoroughly convincing opinion by the Merit Systems Protection Board [MSPB] concluded that Ms. Chambers was improperly fired in a classic act of retaliation against a whistleblower,” the Post said in the editorial. “The Interior Department pointed to other infractions allegedly committed by Ms. Chambers that it said justified the disciplinary action, but the board concluded that the department probably would not have moved against the chief absent her protected whistleblowing comments to the media.”

As Chambers said, “It was so blatant that [firing me] was retaliatory, that it had happened right after I had spoken to the press, and then they drug up old incidents that had happened. Tried to convince the court that [I] was a bad employee and would have been fired or disciplined otherwise. And finally the MSPB saw through that and threw out everything not on a technicality but the fact that there was never any evidence to support those charges.”

When asked whether she thought gender discrimination played a part in her case, Chambers replied, “I believe in my heart that gender may have played a role in this. We would never be able to prove it. … There were men who had done things that were much more assertive as far as talking to the press about resource needs. A former Park Police chief [had] gone to the Washington Post with [a report of] staffing shortages. He was never so much as criticized, much less ostracized or disciplined in any way.”

***

What really made her case unique wasn’t what happened in the courtroom, but what happened outside the courtroom, Chambers said.

“We made this a very public battle,” she said. “I was under an illegal gag order and couldn’t engage in conversations and interviews about what was going on, but my husband was certainly free to exercise his First Amendment rights. He took this to the public.”

Chambers said she’ll ever know the entire impact that the Web site had. It was a place for people to point to and hopefully give them help. One of her favorite aspects were comments left by visitors. “It’s humbling to read this and realize that there are so many people out there who have been harmed,” she said.

Or that there are so many whistleblowers who tried to do the right thing but, because they didn’t have the financial means or retirement packages, attorneys that believed in them, or the physical and mental stamina needed to pursue a whistleblower case, they were unable to fight back.

The Web site has drawn over 215,000 visitors.

Of her seven-year ordeal Chambers said, “My case shows the kind of perseverance one has to have if you have a chance of prevailing. … Not many whistleblowers are going to be able to stick to it as long as we have all these years.”

***

After 21 years in policing, Chambers became chief of police in Durham, N.C., in January 1998. She went to work for the Park Police in 2002. Her husband, a retired police officer, and she both had retirement incomes, so they had time to pursue the case.

However, in a year they used up most of their retirement savings fighting for her job. If it hadn’t been for PEER working pro bono to represent her and the fact that some of her lawyers (including Bloomington’s Mick Harrison) worked for a “greatly reduced fee,” she might well have lost the case.

According to PEER attorney Dinerstein, the Chambers case results were significant.

“The case was groundbreaking legally,” she wrote in an e-mail. “First it established that federal employees are entitled to whistleblower protection for disclosing specific dangers to public health or safety, even if those dangers emanate from budget or policy decisions concerning the funding of certain government activities or programs. In Chambers’s case, she claimed that understaffing and underfunding of the Park Police was leading to specific dangers to public safety.

“The second is that even where the employee is found to have engaged in some misconduct, they cannot be punished for it if that punishment is really a pretext for retaliating against the employee for whistleblower disclosures. Once an employee is found to be a whistleblower, the agency has a heavy burden of proof to show that the action taken against the employee was not retaliation.”

The final MSPB decision implemented the law and the standards of proof the way that the whistleblower community has long advocated, Dinerstein wrote.

“The MSPB examined the record of the case in depth to see whether the charges brought against Chambers which were not directly premised on her protected whistleblowing (the only ones that could possibly stand) had strong evidence behind them. Even though the court above them had previously upheld those charges on a preponderance of the evidence standard, the board found the evidence was weak for purposes of meeting the government’s heavy burden in a whistleblower case.”

The MSPB also looked at the government’s motivation and concluded the charges would not have been brought at all if Chambers had not been a whistleblower, Dinerstein wrote.

“This left no legitimate charges against her, and she was reinstated. So the decision, while not actually changing existing law, is a model of how whistleblower cases should be analyzed.”

Linda Greene writes for the Bloomington Alternative. She can be reached at lgreene@bloomington.in.us.