Interesting People mailing list archives
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 comSubject: 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:
http://www.users.muohio.edu/kelleycs/paper.pdf
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 whistleblowers. [. . .] 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 -- RIAA is the RISK! Our NET is P2P! http://www.nyfairuse.org/action/ftc DRM is Theft! We are the Stakeholders! New Yorkers for Fair Use http://www.nyfairuse.org [CC] Counter-copyright: http://realmeasures.dyndns.org/cc I reserve no rights restricting copying, modification or distribution of this incidentally recorded communication. Original authorship should be attributed reasonably, but only so far as such an expectation might hold for usual practice in ordinary social discourse to which one holds no claim of exclusive rights. ------------------------------------- You are subscribed as lists-ip () insecure org To manage your subscription, go to http://v2.listbox.com/member/?listname=ip Archives at: http://www.interesting-people.org/archives/interesting-people/
Current thread:
- more on CIA fires leaker; shades of confidentiality/privacy David Farber (Apr 23)