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more on CIA fires leaker; shades of confidentiality/privacy
From: David Farber <dave () farber net>
Date: Sun, 23 Apr 2006 07:19:58 -0400

Begin forwarded message:

From: Seth Johnson <seth.johnson () RealMeasures dyndns org>
Date: April 22, 2006 2:53:26 PM EDT
To: dave () farber net
Cc: ip () v2 listbox com
Subject: Re: [IP] more on CIA fires leaker; shades of confidentiality/ privacy

For IP, if you wish.

Begin forwarded message:

From: L Victor Marks <victor () victormarks com>
Date: April 21, 2006 10:19:24 PM EDT
To: dave () farber net
Subject: Re: [IP] CIA fires leaker; shades of confidentiality/privacy

I imagine if I embarrassed my employer with a false accusation that I
too would be fired. But state and federal employees get a different
standard, whistleblower protection. From what little I know of
whistleblower protection, I understand that the whistleblower has to
report the alleged illegal act to the proper authority, not the press.

Under George Bush's theory of executive power, he can signal the
valid meaning of Congressional legislation through highly
elaborate executive signing statements -- the statements that
accompany the signatures by which he ratifies a law rather than
vetos it.  He holds that he can interpret the laws Congress
writes in such a manner that for Congress to enact a law
providing whistleblower protections against executive branch
retaliation, Congress would have to literally specify that it is
addressing executive authority (and if they did that, it's not
clear that he wouldn't just override that).

See pages 35 - 40 of Christopher Kelley's piece on the Unitary
Executive Theory:


In the wake of the corporate scandals that roared through the
United States in 2001-2002, the Congress passed the “Corporate
and Auditing Accountability, Responsibility and Transparency Act
of 2002,” better known as “Sarbanes-Oxley.”  The aim of the Act
was to restore public trust in corporate accountability by
forcing corporations to be more transparent in their auditing
procedures and to guarantee broader protections for

[. . .]

In his [signing statement], the president argues:

   Given that the legislative purpose of section 1514A of title
   18 of the U.S. Code, enacted by section 806 of the Act, is to
   protect against company retaliation for lawful cooperation
   with investigations and not to define the scope of
   investigative authority or to grant new investigative
   authority, the executive branch shall construe section
   1514A(a)(1)(B) as referring to investigations authorized by
   the rules of the Senate or the House of Representatives and
   conducted for a proper legislative purpose.

This set off a firestorm inside the Senate with two members that
had devoted a great deal of work on the bill: Senators Charles
Grassley (R.IA) and Patrick Leahy (D.VT).

[. . .]

[In October,] an action taken by the Acting Solicitor for the
Department of Labor drew their ire once more. The Acting
Solicitor, Eugene Scalia, the son of Supreme Court Associate
Justice Antonin Scalia, filed an amicus brief with the Department
of Labor administrative review board “seeking to overturn a
$200,000 punitive damage award won by Assistant U.S. Attorney
Gregory C. Sasse of Ohio in a whistle-blower case against the
Justice Department.”

The case dealt with contacts Sasse had with Congressman Dennis
Kucinich (D. OH) regarding toxic waste that was dumped on federal
property with the knowledge of the Department of Justice. Once
the Department of Justice learned that Sasse had been the person
who blew the whistle, his “supervisors downgraded his performance
reviews, failed to grant him training opportunities and removed
him from some cases” in retaliation.

In Scalia’s brief, he applied the narrow construction used in
President Bush’s signing statement of “Sarbanes-Oxley.” He tried
to argue that since Kucinich was not part of any on-going
congressional committee investigation, Sasse’s discussions with
the Congressman was not protected under the whistleblower
provisions of the Act.

Senator Grassley, outraged by this interpretation, [noted] that
Scalia’s interpretation “would limit protections to only those
whistleblowers lucky enough to find the one Member of Congress
out of 535 who is the Chairman of the appropriate committee who
also just happens to be already conducting an investigation.”

After continued pressure, the administration finally relented by
January, 2003 to accept the more expansive reading of the
whistleblower provision of “Sarbanes-Oxley.”

[. . .]

This episode left a particularly poor taste with Senator Leahy.
In an amendment to the “21st Century Department of Justice
Appropriations Authorization Act,” Leahy added a section to title
28 of the United States Code that required the Department of
Justice to inform Congress in any instance in which the executive
branch either refused to enforce a section of law it deemed to be
unconstitutional or refused to defend a statute that it
determined to be unconstitutional. It also required the executive
branch to report any unilateral action the executive branch took
that had the possibility of diminishing the authority of the
Congress. It is clear that Leahy had no idea the ramifications of
presidential unilateral action and was looking to get a handle on
how many times the executive branch was deliberately disobeying
the wishes of Congress as expressed in legislation presented to
the president for his signature or by way of memoranda, executive
orders, or presidential directives.

It is not clear whether Leahy was even aware of the signing
statement President Bush made to the Department of Justice
appropriations authorization bill. In it, President Bush issued
nine separate challenges to the bill, one of which focused upon
Leahy’s amendment. President Bush wrote:

   Section 202 of the Act adds a new section 530D to title 28,
   United States Code, that purports to impose on the executive
   branch substantial obligations for reporting to the Congress
   activities of the Department of Justice involving challenges
   to or nonenforcement of law that conflicts with the
   Constitution. The executive branch shall construe section 530D
   of title 28, and related provisions in section 202 of the Act,
   in a manner consistent with the constitutional authorities of
   the President to supervise the unitary executive branch and to
   withhold information the disclosure of which could impair
   foreign relations, the national security, the deliberative
   processes of the Executive, or the performance of the
   Executive's constitutional duties. To implement section
   202(b)(3) of the Act, the Attorney General, on my behalf,
   shall advise the heads of executive agencies of the enactment
   of section 202 and of this direction concerning construction
   of that section and section 530D of title 28. Furthermore,
   section 202(a) requires that the President report to the
   Congress the issuance of any ``unclassified Executive Order or
   similar memorandum or order'' that establishes or implements a
   policy of intra-circuit non-acquiescence or of refraining from
   enforcing, applying, or administering a Federal statute, rule,
   regulation, program, or policy on the ground that it is
   unconstitutional. Based upon the text and structure of this
   section, the executive branch shall construe this reporting
   obligation to cover only unclassified orders in writing that
   are officially promulgated and are not included in the reports
   of the Attorney General or other Federal officers to whom this
   section applies.

I don't know what all that means, but it's quite a mouthful, huh?

Seth Johnson


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