Unconstitutional Secrecy Provisions Hide Iraq War Costs And Public Safety Information From The Public

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Under the FCA, originally enacted by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