The Project On Government Oversight (POGO) is an investigative organization which works with insider contacts and whistleblowers to investigate corruption, fraud and abuse in the federal government.
On May 15, POGO focused its attention on abuses within the VA healthcare system, setting up a confidential and secure way for whistleblowers, including veterans and VA employees, to report abuses without fear of reprisals or repercussions. In a very short time, POGO received approximately 700 confidential tips from whistleblowers. The investigative organization also received something else: a subpoena from the Obama administration to hand over every single confidential tip.
POGO is refusing to comply. Per its website:
The Department of Veterans Affairs’ in-house watchdog has demanded that the Project On Government Oversight turn over all information it has collected related to abuses and mismanagement at VA medical facilities, according to a subpoena delivered to POGO May 30.The website launched by POGO, to which whistelblowers have flocked in a very short span, essentially provides an encrypted dropbox into which veterans and current VA staffers have been submitting confidential tips on abuses. They have done so because they trust that it is digitally secure – that it cannot be penetrated by prying government eyes.
The subpoena from the VA Office of Inspector General demands all records POGO has received from current or former VA employees, as well as any other individuals, including veterans. The subpoena asks for records related to “wait times, access to care, and/or patient scheduling issues at the Phoenix, Arizona VA Healthcare System and any other VA medical facility.”
POGO, which has a 33-year history of working with whistleblowers to expose government fraud, waste and abuse, wrote the IG today and refused to provide the records, most of which have come from confidential tips submitted through VAOversight.org.
POGO and the Iraq and Afghanistan Veterans of America (IAVA) launched VAOversight.org on May 15 to offer potential whistleblowers a safe channel to confidentially report abuses in the VA healthcare system, which have been the focus of intense media scrutiny and congressional hearings in recent weeks.
Since the website went live, about 700 people have submitted tips or aired grievances. About 25 percent of those tips have come from current or former VA staffers. POGO is reviewing the information it has received and is looking into many of the claims.
In a letter sent to the IG this morning, 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.”
While this is likely true, the Obama administration has begun to rely upon a different tactic to obtain such secure information: the administrative subpoena, which is not constrained by the Fourth Amendment.
Here is Ars Technica:
It's not shadowy spies or engineers from the National Security Agency [who would like to read] the hundreds of tips about government fraud that the Project on Government Oversight (POGO) has received in less than a month.Because the administrative subpoena doesn't require that there be probable cause a crime has been committed, it can be employed, essentially at will, to obtain any sort of information desired. This is precisely what seems to be happening with POGO, and the organization is steadfast in its refusal to hand over whistleblower testimony, with Newman stating that POGO's investigators and journalists are willing to go to jail rather than reveal the identities of those who confidentially submitted tips to its site. For to do otherwise would be to destroy itself as a trusted watchdog.
Instead, it's lawyers from the Obama administration employing the power of the administrative subpoena in a bid to siphon data from POGO's encrypted submission portal.
"If they are successful, that defeats the purpose of trying to improve our online security with encryption," Joe Newman, the project's communications director, said in a telephone interview.
The administrative subpoena, which does not require the Fourth Amendment standard of probable cause, comes as 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. But no matter how securely encrypted the boxes might be, the subpoena is an old-school cracking tool that doesn't require any electronic decryption methods.
As for its rights, this is what POGO sent the Obama administration:
Based on protections afforded by the First Amendment of the United States Constitution, it is in the public interest that POGO protect its sources, methods, and unpublished information involving any matter related to any POGO investigation or sources, including our investigation into the Department of Veterans Affairs. The administrative subpoena served by the IG on POGO would infringe on POGO’s freedom of speech, freedom of press, and freedom of association rights as they relate to all whistleblowers and sources who come to POGO alleging improper administration of federal policies, programs, contracts, or spending. Moreover, complying with the administrative subpoena would undercut and harm the very purpose for which POGO was founded and functions.If the Obama administration fully pursues this subpoena, and if POGO is forced to defend itself in court for refusing to comply, it would be a monumental case with wide-ranging First Amendment and digital security implications.
For now, the identities of vulnerable VA staffers are at stake, and POGO is assuring those who have acted as whistleblowers that their identities will not be compromised. No matter how hard the government presses.
David Harris-Gershon is author of the memoir What Do You Buy the Children of the Terrorist Who Tried to Kill Your Wife?, just out from Oneworld Publications.
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