January, 15 2009, 11:31am EDT
For Immediate Release
Contact:
Rachel Myers, ACLU, (212) 549-2689 or 2666; media@aclu.org
Brian Gumm, OMB Watch, (202) 683-4812; bgumm@ombwatch.org
Dylan Blaylock, GAP, (202) 408-0034 x137; dylanb@whistleblower.org
Unconstitutional Secrecy Provisions Hide Iraq War Costs And Public Safety Information From The Public
Taxpayers Have A Right To Know About Allegations Of Fraud Against The Government, Say Watchdog Groups
NEW YORK
The
overreaching secrecy provisions of a whistleblower law prevent the
public from learning about serious allegations of fraud against the
United States government, according to a complaint filed today by the
American Civil Liberties Union and the ACLU of Virginia on behalf of
themselves, the Government Accountability Project (GAP) and OMB Watch.
Complaints filed under the False Claims Act (FCA) are automatically
filed under seal and those who file them are gagged from speaking about
them, keeping the complaints secret from the public for months or even
years.
"Secret courts and secret
proceedings have no place in this country," said Chris Hansen, senior
staff attorney with the ACLU First Amendment Working Group. "There are
plenty of procedures Congress or the courts could adopt to preserve the
interest of privacy when it is warranted without enlisting the courts
in a blanket scheme that automatically gags people who have information
about possible abuse of taxpayer dollars."
Under the FCA, originally enacted by
President Lincoln to combat war profiteering and other contractor fraud
against the federal government, private citizens are entitled to bring
complaints of fraud on behalf of the government. A 1986 amendment to
the law requires that FCA complaints are automatically filed under seal
and whistleblowers who file the complaints are gagged from speaking to
anybody about them. The seal and gag are not lifted until the Justice
Department decides whether it will pursue a complaint, which can be
anywhere from 60 days to several years later. According to the Justice
Department there were approximately 1,000 FCA cases under seal as of
July 2007.
According to today's complaint, the
FCA secrecy provisions have hidden an unknown number of allegations of
military contractor fraud during the Iraq War from the public, raising
concerns that the government may neglect to take action against certain
contractors.
"Serious allegations of contractor
misconduct should not be hidden from the press and the public," said
Sean Moulton, Director of Federal Information Policy at OMB Watch. "The
public deserves to know if a contactor has been accused of misusing
U.S. taxpayer funds."
The complaint also charges that the
secrecy provisions can prevent the public from learning about ongoing
threats to public health and safety, since alleged misconduct will
remain a secret until the Justice Department takes action and the seal
is lifted.
"Hopefully this lawsuit will be a
wake up call for the Justice Department. There are circumstances where
a confidentiality seal is essential, but Justice has used it as a
blanket gag order under threat of criminal prosecution to lock in
secrecy sometimes for years. That is defensible for cases solely
concerned with financial recovery, but disastrous when a whistleblower
challenges fraud that threatens health and safety, such as toxic
dumping," said Tom Devine, Legal Director of GAP. "As a result, we must
warn those whistleblowers that by filing a False Claims Act lawsuit,
they may seal a cover up until it is too late to protect the public.
There is no excuse for an effective whistleblower law to degenerate
into a statutory gag order. Because Justice has abused its power,
either the courts or Congress must act to put freedom of speech back in
this whistleblower law."
Today's complaint was filed in the
U.S. District Court for the Eastern District of Virginia. Attorneys on
the case are Hansen, Mark Ladov and Hina Shamsi of the ACLU and Rebecca
Glenberg of the ACLU of Virginia.
The complaint is available online at: www.aclu.org/freespeech/gen/38336lgl20090115.html
The American Civil Liberties Union was founded in 1920 and is our nation's guardian of liberty. The ACLU works in the courts, legislatures and communities to defend and preserve the individual rights and liberties guaranteed to all people in this country by the Constitution and laws of the United States.
(212) 549-2666LATEST NEWS
Federal Court Rules Major Wyoming Oil and Gas Lease Sale Illegal for Ignoring Climate Impacts
"This is a huge victory for the protection of our public lands," said Friends of the Earth.
Mar 25, 2024
The U.S. Bureau of Land Management will have to reevaluate the wildlife and public health impacts of a major 2022 oil and gas lease sale in Wyoming after a federal judge ruled Friday that the agency had overlooked "what is widely regarded as the most pressing environmental threat facing the world today" when it moved forward with leasing 120,000 of federal land.
U.S. District Judge Christopher Cooper ruled in Washington, D.C. that the BLM did not halt the lease sale even after it acknowledged that oil and gas drilling on the federal lands could result in the same negative environmental and social impacts as the addition of hundreds of thousands of cars to U.S. roads each year.
Moving forward with one of the Biden administration's largest lease sales despite its likely environmental harm, said Cooper, was illegal under the National Environmental Policy Act and other laws.
Representing The Wilderness Society and Friends of the Earth (FOE), environmental legal group Earthjustice sued BLM over its leasing plans' potential impact on the greater sage grouse, an endangered bird species, and other wildlife, as well as groundwater impacts.
The judge found BLM did not complete a sufficiently detailed review of drilling impacts on the greater sage grouse, and relied too heavily on outdated and overly broad analyses of oil and gas drilling in Wyoming.
While the agency has been attempting to "stop the bleeding" of the greater sage grouse, whose population has declined nearly 40% since 2002, the BLM still refused to postpone leasing in a critical habitat for the bird.
The Biden administration also did not adequately explain its analysis of potential groundwater harms, said the ruling.
Despite some conservation strides by the Biden administration, The Wilderness Society's Ben Tettlebaum said the court's decision "affirms that much work remains" to be done. The BLM, he added, "must fully account for the serious impacts of its oil and gas program on groundwater, wildlife, and the climate."
Tettlebaum said the ruling also proves the agency is required to "factor into its leasing decisions the enormous costs that greenhouse gas emissions stemming from its oil and gas program impose on public land resources and on the communities that depend on them for clean air and water."
Hallie Templeton, legal director for FOE, added that the federal government "simply cannot ignore climate, wildlife, and water impacts when analyzing the myriad risks of oil and gas leasing, whether in Wyoming or across the country," as the ruling makes clear.
"We are beyond pleased with this outcome," said Templeton.
The ruling "should be another wake up call for the Bureau of Land Management to at long last address the damage caused from federal oil and gas development," said Alexandra Schluntz, senior associate attorney for Earthjustice. "It is time to make fossil fuel leasing on our public lands a thing of the past."
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Draft UN Report Finds Israel Has Met Threshold for Genocide
"Israel's genocide on the Palestinians in Gaza is an escalatory stage of a long-standing settler colonial process of erasure."
Mar 25, 2024
The United Nations Human Rights Council on Monday published a draft report that found "reasonable grounds to believe" that Israel is committing genocide in Gaza, a move that came on the same day as the U.N. Security Council passed a resolution demanding an immediate cease-fire in the ongoing war.
The advance unedited version of the report—entitled Anatomy of a Genocide—concludes that Israel's far-right government and military "have intentionally distorted jus in bello principles, subverting their protective functions, in an attempt to legitimize genocidal violence against the Palestinian people."
"The overwhelming nature and scale of Israel's assault on Gaza and the destructive conditions of life it has inflicted reveal an intent to physically destroy Palestinians as a group," the draft report states, enumerating Israeli actions that violate Article II of the Convention on the Prevention and Punishment of the Crime of Genocide: "Killing members of the group; causing serious bodily or mental harm to group members; and deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part."
"Israel has de facto treated an entire protected group and its life-sustaining infrastructure as 'terrorist' or 'terrorist-supporting,' thus transforming everything and everyone into either a target or collateral damage, hence killable or destroyable," the paper continues. "In this way, no Palestinian in Gaza is safe by definition. This has had devastating, intentional effects, costing the lives of tens of thousands of Palestinians, destroying the fabric of life in Gaza, and causing irreparable harm to its entire population."
Israel
rejected the report as "an obscene inversion of reality."
According to Palestinian and international humanitarian officials, Israel's 171-day Gaza onslaught has killed at least 32,333 Palestinians, most of them women and children, while wounding nearly 75,000 others and displacing around 90% of Gaza's 2.3 million people. Thousands more Palestinians are missing and believed to be dead and buried beneath the rubble of bombed buildings. Disease and deadly starvation caused and exacerbated by Israel's siege and blockade of Gaza are spreading rapidly.
"Israel's genocide on the Palestinians in Gaza is an escalatory stage of a long-standing settler-colonial process of erasure," the draft report asserts. "For over seven decades this process has suffocated the Palestinian people as a group—demographically, culturally, economically, and politically—seeking to displace it and expropriate and control its land and resources."
Referring to the flight and ethnic cleansing of more than 750,000 Arabs from Palestine during the foundation of the modern state of Israel in 1948, the paper contends that "the ongoing Nakba must be stopped and remedied once and for all. This is an imperative owed to the victims of this highly preventable tragedy, and to future generations in that land."
"The ongoing Nakba must be stopped and remedied once and for all."
The draft report urges U.N. member states to "enforce the prohibition of genocide in accordance with their... obligations" under international law. In January, the U.N.'s International Court of Justice (ICJ) found that Israel was "plausibly" perpetrating genocide in Gaza and ordered the country's government to "take all measures within its power" to prevent genocidal acts. Human rights defenders say Israel has ignored the order.
"Israel and those states that have been complicit in what can be reasonably concluded to constitute genocide must be held accountable and deliver reparations commensurate with the destruction, death, and harm inflicted on the Palestinian people," the publication argues.
The draft report recommends measures including:
- Immediate implementation of an arms embargo on Israel, as it appears to have failed to comply with the binding measures ordered by the ICJ;
- Immediate referral of the situation in Palestine to the International Criminal Court in support of its ongoing investigation;
- Ensuring that Israel, as well as states who have been complicit in the Gaza genocide, acknowledge the colossal harm done, commit to nonrepetition, with measures for prevention and full reparations, including the full cost of the reconstruction of Gaza;
- Deploying an international protective presence to constrain the violence routinely used against Palestinians in the occupied territories; and
- Ensuring that the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) is properly funded to enable it to meet the increased needs of Palestinians in Gaza.
Israel on Monday informed the U.N. that it will no longer allow UNRWA convoys carrying food aid into northern Gaza, even as the Palestinians are starving to death, a move that one humanitarian campaigner called a "death sentence."
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Corporate Prosecutions Up Under Biden, Says Watchdog, But Not Nearly Enough
"The increase in corporate prosecutions is a welcome shift from the previous decline, and the new policy of rewarding corporate crime whistleblowers could go further toward restoring enforcement."
Mar 25, 2024
While welcoming a "modest uptick" in corporate prosecutions by the U.S. Department of Justice last year, the watchdog Public Citizen on Monday called for the "bold ramp-up Biden DOJ leadership promised early in the administration."
Federal prosecutions of corporations over the past 25 years peaked in 2000, at 304, according to the organization's analysis of various datasets. After the turn of the century, figures trended down, with a low of 90 in 2021, the year that President Joe Biden was sworn in. Since then, the numbers have started to climb again—hitting 99 in 2022 and 113 in 2023.
However, the impact isn't felt equally across the corporate world. Last year, "about 76% of the corporations DOJ prosecuted had only 50 employees or less, while only about 12% had 1,000 employees or more," the report states. "This is the continuation of a long-standing trend—about 70% of the 4,946 corporations the federal government prosecuted between 1992 and 2021 were small businesses with fewer than 50 employees. Only about 6% employed 1,000 or more."
"Prosecutions remain far too few, and the ongoing overuse of leniency deals for big corporations that break the law continues to undermine deterrence."
Still, "the increase in corporate prosecutions is a welcome shift from the previous decline, and the new policy of rewarding corporate crime whistleblowers could go further toward restoring enforcement," said Rick Claypool, a Public Citizen research director who authored the report, in a statement Monday.
Deputy Attorney General Lisa Monaco announced the "DOJ-run whistleblower rewards program," through which an individual who helps the department discover "significant corporate or financial misconduct" could receive some of the forfeiture, in a speech to the American Bar Association's 39th National Institute on White Collar Crime earlier this month.
Although Claypool applauded the progress, he also emphasized that "prosecutions remain far too few, and the ongoing overuse of leniency deals for big corporations that break the law continues to undermine deterrence."
The report explains that "prosecutors use DOJ leniency agreements—deferred prosecution agreements (DPAs) and nonprosecution agreements (NPAs)—to avoid filing criminal charges against corporate defendants. Originally developed to offer nonviolent first-time individual offenders a second chance, such agreements now help the most powerful businesses in the world dodge the legal consequences of their criminal misconduct."
Previous Public Citizen research shows that "about 15% of the agreements historically involve repeat offenders, casting doubt on their deterrent effect," the report notes. "Most corporate repeat offenders that receive leniency agreements from the Department of Justice are large multinationals. Of the 14 corporations that received leniency deals in 2023, the majority (10, or 71%) had at least 5,000 employees or more."
Of those who took deals last year, the watchdog highlighted "generic pharmaceutical companies Teva and Glenmark, multinational tobacco corporation British American Tobacco, the Illinois subsidiary of telecommunications corporation AT&T, and the Swiss multinational technology firm ABB."
While calling out the DOJ for creating "the appearance that some businesses are 'too big to jail'" with its leniency agreements, Public Citizen also lauded Monaco's recent remarks about "delivering consequences for corporate recidivists."
"A history of misconduct matters," she said during the early March address. "After all, penalties exist, in part, to deter future misconduct. They're not the cost of doing business. So when a company breaks the law again—and it's clear the message wasn't received—we need to ratchet up the sanctions."
As the report details:
The first example Monaco provides of the Justice Department holding corporate repeat offenders accountable is Ericsson. Ericsson breached its 2019 leniency agreement with the DOJ to resolve allegations of criminal violations of the Foreign Corrupt Practices Act in Djibouti, China, Vietnam, Indonesia, and Kuwait. Following the breach—failing to meet cooperation and disclosure requirements—the DOJ subsequently prosecuted the corporation for its misconduct.
Other major corporations that have been prosecuted after breaching leniency agreements include the multinational agrichemical corporation Monsanto and the financial corporation formerly known as Royal Bank of Scotland, NatWest Group, which reportedly rebranded in part to dissociate itself from its past misconduct.
"The DOJ's fresh willingness to hold corporate offenders accountable for leniency agreement breaches is among the strongest and most necessary corporate accountability reforms implemented by the Biden administration," the report says. "It's also one that is currently facing its greatest test: Boeing."
Boeing entered into DPA in 2021, after a pair of deadly 737 MAX 8 jet crashes in 2018 and 2019. In January, a door plug flew off a 737 MAX 9 during a flight, resulting in an emergency landing and fresh scrutiny—including a DOJ criminal investigation.
In a February letter to DOJ leaders including Monaco and Attorney General Merrick Garland, Weissman wrote that "if the DOJ finds that Boeing again violated the law, Boeing should be prosecuted both for its original and its subsequent misconduct."
As Common Dreamsreported earlier Monday, Boeing announced that its commercial airplanes division leader will leave immediately, the chairman of the board will resign after the annual meeting in May, and the CEO will step down at the end of this year.
"Of course CEO Dave Calhoun should be dismissed," responded Weissman. "But for real and lasting change to occur, Boeing must now be held criminally accountable both for the recent safety failures and the... crashes that took 346 lives."
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