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Commentary

The VA’s Unprecedented Attack On Whistleblowers


     
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The scandal over the wretched conditions and wait times at veteran’s hospitals as well as the falsification of records by the Department of Veterans Affairs (VA) has the White House in full-scramble defense mode. President Obama risks losing the support of veterans, military personnel, and their families.A new report on the VA from early June this year depicts a truly embarrassing state of affairs. As the Associated Press puts it,

A VA audit this week showed that more than 57,000 new patients had to wait at least three months for initial appointments.... It also found that over the past decade, nearly 64,000 newly enrolled veterans requesting appointments never got one, though it was unclear how many still wanted VA care.

The audit covered 731 VA medical facilities. It said 13 percent of scheduling employees said they’d been instructed to enter falsified appointment dates, and 8 percent used unofficial appointment lists, both practices aimed at improving agency statistics on patient wait times.

Indeed, on May 30 (even before the damning audit was released), Obama accepted the resignation of one of his most trusted cabinet members, Secretary of Veterans Affairs Eric Shinseki. The president statedthat Shinseki “does not want to be a distraction, because his priority is to fix the problem and make sure our vets are getting the care that they need.... And I agree. We don’t have time for distractions; we need to fix the problem.”

But a recent development suggests it is likely that the federal government will try to suppress embarrassing information rather than try to actually repair the VA. According to a recent TechDirt article, “The VA’s Inspector General [IG] has made the unprecedented move to subpoena documents turned over anonymously to independent, non-profit watchdog group Project on Government (POGO).”

The IG is the officially designated office to which fraud, waste, and abuse in the VA are supposed to be reported for investigation. But many people who have made such reports to the IG say that the reports go no further than the IG’s desk.

POGO is a private organization devoted to establishing “transparency and accountability throughout the federal government.” Its website states, “We work with whistleblowers and other inside sources, and access information through the Freedom of Information Act (FOIA), to shed light on the government’s activities.” POGO was founded in 1981.

An administrative subpoena is an official demand for information issued by a federal agency without the need for judicial approval or involvement; all the agency needs to do is to allege that specific information is necessary for an investigation. Administrative subpoenas are routinely used by the National Security Agency, for example, to demand personal customer information from telecommunications companies, hospitals, banks, insurance companies, and bookstores. Critics claim the subpoenas violate privacy and Fourth Amendment guarantees of probable cause.

The administrative subpoena is now being put to an innovatively intrusive use—determining the identities of VA whistleblowers.

Whistleblowing on Veterans Affairs

On May 15, in alliance with the group Iraq and Afghanistan Veterans of America, POGO coestablished a page entitled VAOversight.org, headlined “Help Us Hold the VA Accountable.” The page’s message is addressed to VA employees who “have direct knowledge of fraud, waste or abuse.”

In capital letters, the page advises whistleblowers not to use “a government or contractor phone, fax, or computer” as a means of contact. It suggests that you “maximize your security and anonymity” through electronic communications using the Tor Browser Bundle service. From there, reports will be submitted “to POGO in an encrypted message.” In short, VAOversight.org establishes a secure path for people to report VA abuses without fear of reprisal.

According to news sources, POGO has received hundreds of accounts of corruption, deplorable health care, life-jeopardizing wait times, and the falsification of official documents.

POGO has now also received the IG’s administrative subpoena demanding it hand over a copy of every report in full and allow the IG access to the originals. This could expose any whistleblower who included any potentially identifying details in their messages to POGO.

If it is successful, the subpoena could dissuade further leaks and so potentially prevent further embarrassment to the Obama administration.

Plugging the leaks is particularly important because of two bills that moved with dazzling speed through Congress. On June 10, the House passed a bill to let veterans receive private medical treatment if the VA wait time was too long. On June 11, the Senate passed a similar measure that also called for “bad actors” in the VA to be held accountable. With strong bipartisan support, the bills are expected to be reconciled in short order and sent onto the president for his signature.

With the election edging closer, Republicans are loudly asking, “Who knew what, and when?” It is to the advantage of Democrats for no answers to arise. And yet, any member of Congress who is seen to oppose the public cry for answers and solutions will lose support. Even President Obama cannot risk vetoing such a popular bill, despite the danger that officials at the highest level might eventually be revealed as “bad actors.” Limiting damage by limiting transparency may be the most that Democrats can accomplish.

Subpoenas vs freedom of the press

POGO has refused to comply with the VA subpoena. Joe Newman, its communications director, declared, “We are certainly prepared to go to court. We are certainly prepared to go to jail to prevent any of that information from being released.”

On June 9th POGO announced, “In a letter sent to the IG this morning [June 9], POGO said the IG’s subpoena infringes on POGO’s constitutional ‘freedom of speech, freedom of press, and freedom of association rights as they relate to all whistleblowers and sources.’”

But, as a June 9 article on the tech site Ars Technica explained, the issue is wider than POGO and the VA. The Ars Technica article read, “To defeat encryption, feds deploy the subpoena. Drop boxes, secured or not, are all the post-Snowden rage and ripe for subpoenas.”

A drop box is a file-storage service by which a person can deposit data anonymously—usually with the option of encryption—and then someone else can pick it up by arrangement. This technique protects whistleblowers who go to the press, as Snowden did.

The article stated that the “number of so-called drop boxes from media organizations and other whistleblower groups is on the rise in the wake of the Edward Snowden revelations. The Washington Post and the Guardian were among the latest to deploy drop boxes on June 5.”

The IG’s administrative subpoena is a brute-force method to compel the opening of encrypted communications and further reduce government transparency. It would also reduce freedom of speech and freedom of the press.

Conclusion

A few weeks after Obama assumed office for his first term in January 2009, he issued two memos that promised unprecedented transparency in his administration. What he delivered instead was an unprecedented war against whistleblowers who expose flaws or corruption. As Salon explained in 2012, “The Obama administration has already charged more people—six—under the Espionage Act for alleged mishandling of classified information than all past presidencies combined. (Prior to Obama, there were only three such cases in American history.)”

If the new administrative technique of subpoenaing whistleblowers’ communications prevails, it will provide a supply of information that may allow many more prosecutions. Or, far worse, people may fall silent before their own government, afraid to risk speaking out at all.


Wendy McElroy is a Research Fellow at The Independent Institute. Her books include the Independent Institute volumes, Liberty for Women: Freedom and Feminism in the 21st Century, and Freedom, Feminism, and the State.


  New from Wendy McElroy!
LIBERTY FOR WOMEN: Freedom and Feminism in the Twenty-First Century
With its vision of individualist feminism, Liberty for Women boldly explores a wide range of issues that confront the modern woman, including self-defense, economic well-being and employment, sex and abortion, the family, technology, and much more.






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