AP case points to complaints about some Obama whistleblower policies

Joe Davidson
Columnist May 14, 2013

The Justice Department’s secret review of Associated Press telephone records gives federal employee advocates one more reason to doubt the Obama administration's full commitment to protecting whistleblowers, particularly those in national security agencies.

Revelations about the department’s broad prying into the work, home and mobile phone records of AP journalists in Washington, New York and Hartford, Conn., sent a chill through news organizations.

Joe Davidson writes the Federal Diary, a column about the federal workplace that celebrated its 80th birthday in November 2012. View Archive

Perhaps that was the point.

Yet the target of all that snooping apparently wasn’t journalists, but the people suspected of giving them information — government workers.

Deputy Attorney General James M. Cole made that clear in response to the AP’s complaint about the government’s intrusion.

“Because such disclosures can risk lives and cause grave harm to the security of all Americans, the Department thoroughly investigates cases in which government employees and contractors trusted with our nation’s secrets are suspected of willfully disclosing that information to individuals not entitled to them,” Cole said in a letter to Gary B. Pruitt, AP’s president and chief executive

Investigators apparently were looking for information related to AP coverage of a foiled terrorist plot to blow up a U.S. airliner last year.

It was “a very, very serious leak,” Attorney General Eric H. Holder Jr. told a news conference. “It put the American people at risk.” Determining “who was responsible for that, I think, required very aggressive action,” he added.

This gets to a fundamental question: Are federal employees who provide information leakers or whistleblowers? The answer depends on the case and, in some cases, employees might be both at once.

Angela Canterbury, public policy director of POGO, the Project On Government Oversight, said the question should be: “Was there a public interest in the disclosure? Disclosure of so-called sensitive information is often critical to protecting the public and holding wrongdoers accountable. The government ought to be limiting prosecutions to those intending to harm our national defense. The overzealous prosecutions and subsequent silencing of those who might disclose government information undermines the legitimacy of national security claims and every open government declaration the President has made.”

President Obama can point to a number of accomplishments in support of whistleblowers, including passage of a law with long-sought whistleblower protections, a presidential directive that covers national security employees and a rejuvenated Office of Special Counsel, which protects federal workers from reprisals for exposing waste, fraud and abuse.

But all of that is balanced by a reputation for unduly aggressive prosecution of officials in national security cases. Advocates frequently complain about his administration’s prosecution of six former or current officials, more than all previous administrations put together.

News about the department’s spying on the AP comes just days before a federal appeals court hears arguments in a case about the government’s ability to classify seemingly almost any government worker as a “sensitive” employee. That designation would allow the government to take action against workers without the full range of civil service protections generally available to the federal workforce.

The case involves Rhonda Conyers and Devon Northover, two low-level Defense staffers. They are not whistleblowers, but advocates say their case is an example of the kind of government over­reach that could be used to punish whistleblowers. One was suspended and the other demoted after their positions were declared “non-critical sensitive.” They were deemed unfit for a sensitive job, but “not because of their performance or conduct,” according to the special counsel, which filed a brief supporting them.

Sensitive? Conyers was an accounting technician, a gig starting at $27,000, and Northover was a stock man, making sure a government store had enough shampoo and such. Neither had access to classified information.

It sounds like a “Saturday Night Live” skit, but it’s no joke.

A three-judge panel of U.S. Court of Appeals for the Federal Circuit agreed with the Obama administration in a ruling that said the Merit Systems Protection Board (MSPB) cannot review the merits of the administration’s “national security determinations concerning eligibility of an employee to occupy a sensitive position” — even if the employee is stocking soap.

“The ruling eliminates independent due process hearings at the MSPB for employees who lose their eligibility to hold a sensitive position,” the special counsel’s office said in a statement. “Approximately 500,000 employees at DoD alone occupy positions designated as sensitive. Tens of thousands of others across the government are similarly designated.”

Preventing staffers from taking their cases to the MSPB strips workers of a primary avenue to appeal unfair employment actions. The full Court of Appeals will hear arguments on the case next week.

Meanwhile, the administration is also considering regulations that would allow the reclassifi­cation of federal workers, a move that advocates fear could undermine employee civil service rights.

In a January presidential memorandum, Obama instructed the directors of national intelligence and personnel management to develop “standards for designating positions in the competitive service as national security sensitive.”

The intelligence and personnel offices did not reply to questions about the proposed regulations. Tom Devine, legal director of the Government Accountability Project, which advocates for whistleblowers, was not so hesitant.

To federal employees, he said, the regulations are part of the administration’s “blitzkrieg against traditional rights.”

Twitter: @JoeDavidsonWP

Previous columns by Joe Davidson are available at wapo.st/JoeDavidson.

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