On Memorial Day, America Should Honor Her Troops by Bringing Them Home

Published on Monday, May 30, 2011 by The Nation

On Memorial Day, America Should Honor Her Troops by Bringing Them Home

by John Nichols

It is unfortunate but true that on this Memorial Day -- when we pause to honor those Americans who have fought the good fights against British colonialism, the sin of slavery and the menace of fascism -- U.S. troops are currently bogged down in a quagmire of George Bush's creation in Afghanistan and an continuing mission of Bush's creation in Iraq.

Appallingly, Barack Obama has maintained Bush's undeclared wars of occupation. And he has now steered the United States into another fight with Libya.

Everything about these undeclared and open-ended conflicts is at odds with the vision of the founders of the American experiment -- who generally shared James Madison's view that "permanent war" posed the greatest threat to liberty -- and the serious intent of wars against kings, slaveholders and fascists.

Soldiers fight wars because of a sense of duty. And the soldiers involved in America's current conflicts are good men and women. But these are not good fights.

Nor are their necessary fights for the U.S. military.

It is for this reason that veterans of these undeclared wars of whim have organized so well and wisely to end them, in groups such as Veterans for Peace and Iraq Veterans Against the War, which is mounting a Memorial Day campaign to highlight the wrongheaded practice of deploying traumatized troops, and the currently organizing Afghanistan Veterans Against the War project.

There are arguments to be made, some of them sound, some of them not, that people in Iraq, Afghanistan and Libya have reasons to be fighting. But the fights are their own -- not America's.

John Quincy Adams summed the sentiment up 190 years ago when, in an address to Congress, the then-Secretary of State declared that: "[America's] glory is not dominion, but liberty. Her march is the march of the mind. She has a spear and a shield: but the motto upon her shield is, Freedom, Independence, Peace."

"If the wise and learned philosophers of the elder world, the first observers of nutation and aberration, the discoverers of maddening ether and invisible planets, the inventors of Congreve rockets and Shrapnel shells, should find their hearts disposed to enquire what has America done for the benefit of mankind? Let our answer be this: America, with the same voice which spoke herself into existence as a nation, proclaimed to mankind the inextinguishable rights of human nature, and the only lawful foundations of government. America, in the assembly of nations, since her admission among them, has invariably, though often fruitlessly, held forth to them the hand of honest friendship, of equal freedom, of generous reciprocity," explained Adams. "She has uniformly spoken among them, though often to heedless and often to disdainful ears, the language of equal liberty, of equal justice, and of equal rights. She has, in the lapse of nearly half a century, without a single exception, respected the independence of other nations while asserting and maintaining her own. She has abstained from interference in the concerns of others, even when conflict has been for principles to which she clings, as to the last vital drop that visits the heart. She has seen that probably for centuries to come, all the contests of that Aceldama the European world, will be contests of inveterate power, and emerging right. Wherever the standard of freedom and Independence has been or shall be unfurled, there will her heart, her benedictions and her prayers be. But she goes not abroad, in search of monsters to destroy. She is the well-wisher to the freedom and independence of all. She is the champion and vindicator only of her own. She will commend the general cause by the countenance of her voice, and the benignant sympathy of her example. She well knows that by once enlisting under other banners than her own, were they even the banners of foreign independence, she would involve herself beyond the power of extrication, in all the wars of interest and intrigue, of individual avarice, envy, and ambition, which assume the colors and usurp the standard of freedom. The fundamental maxims of her policy would insensibly change from liberty to force.... She might become the dictatress of the world. She would be no longer the ruler of her own spirit."

The cynicism of the previous administration, which was led by a president whose family pulled strings to keep him out of the Vietnam War and a vice president who dodged the draft five times during that conflict, was beyond contempt. But so, too, is the cynicism of many Democrats who, despite their disdain for the failed foreign policies of Bush and Cheney, continue to echo the empty rhetoric of the administration when it comes to the debate about how best to end the war.

The best way to "support the troops" who have been placed in harm's way in Iraq, Afghanistan and Libya is to bring them home.

Congress considered the prospect last week and more than 200 members of the House voted for a proposal to begin taking steps to exit Afghanistan. Unfortunately, a few more members opposed that necessary step.

The growing opposition to the misguided mission in Afghanistan, as well as the clear opposition to any expansion of the Libya mission, is the encouraging news of this Memorial Day.

America is growing weary of endless war.

Wars of whim, fought without proper congressional declaration and without exit strategies, are not fights for democracy.

Fights for democracy can only be considered successful when American democracy is open and vibrant enough to allow for a realistic discussion of the nation's circumstance. Those "my-country-right-or-wrong" politicians and pundits who would shut down dissent on Memorial Day, or any other day, make a mockery of the oath to defend a constitution that protects the right to speak truth to power and to assemble for the purpose of petitioning for the redress of grievances.

The Rev. Martin Luther King Jr's Vietnam War-era counsel to Americans holds true this Memorial Day.

Americans who love their country and its promise must move beyond "the prophesying of smooth patriotism" toward "a firm dissent based upon the mandates of conscience and the reading of history."

No honest reading of the history of America's founding, or of recent events, can led to a conclusion that the undeclared wars of the moment are justified.

Americans have fought and died in pursuit of what they -- and most Americans -- believed to be noble and necessary causes. It is right to celebrate their memory. But is right, as well, to recognize that not all wars are noble and necessary.

Making the distinction between wars that are unavoidable and wars that should have been avoided (and that can now be ended) honors all veterans and all soldiers, as does a recognition that it is time to begin establishing practices and policies that err on the side of making peace -- as opposed to endless conflict.

That's a message that Michael McPhearson, the former executive director of Veterans for Peace and a co-convener of United for Peace and Justice brings to the table this Memorial Day.

"To truly honor fallen soldiers requires self-reflection, questions and action," says the veteran who served as a field artillery officer in the 24th Mechanized Infantry Division during the first Gulf War. "We must reflect on our part in their deaths. Are we allowing the blood of soldiers and civilians to be spilled in war because we are not willing to do the hard work of peace making? Hard work that may mean we must change our lifestyles, consume less and learn more about the world around us. Are we prepared to take any responsibility for our nation’s relationships with other countries? Are we willing to question our government's foreign policies and demand a change from domination to collaboration? Are we willing to take action to change ourselves so that our personal behavior and attitude reflects peace making rather than acceptance of war?"

Americans will have plenty of answers to those questions. But the first ought to be that, on this Memorial Day, the time has come to honor the troops by bringing them home.

© 2011 The Nation

John Nichols is Washington correspondent for The Nation and associate editor of The Capital Times in Madison, Wisconsin. His most recent book is The “S” Word: A Short History of an American Tradition. A co-founder of the media reform organization Free Press, Nichols is co-author with Robert W. McChesney of The Death and Life of American Journalism: The Media Revolution that Will Begin the World Again and Tragedy & Farce: How the American Media Sell Wars, Spin Elections, and Destroy Democracy. Nichols' other books include: Dick: The Man Who is President and The Genius of Impeachment: The Founders' Cure for Royalism.

Stop the Drain of Defense Dollars: What You Can Do

Stop the Drain of Defense Dollars

Defense spending is in serious need of reform, both in how and what we buy. For the most part, increasing discipline in weapons spending doesn’t require new rules. Rather, better enforcement of the rules that currently exist is needed, especially as they relate to testing and evaluation and hard-nosed assessments of whether critical technologies are ready early in a weapons acquisition. Over-reliance on too many immature technologies critical to the success of a weapon is usually the key reason weapons are delivered billions of dollars over their original cost estimates and years late. At key decision-points known as “Milestones,” where a major weapons program advances from technology validation (Milestone A) to full-scale development (Milestone B) to production (Milestone C), the Pentagon often does not exercise tough oversight or make hard decisions. With the likelihood that Defense Secretary Robert Gates will depart later this year, we may lose a high-level advocate for better accountability within the Pentagon’s weapons portfolio. Despite some reforms over the last few years, the Defense Department still struggles with a variety of weapons programs that face complicated technical challenges and cost and schedule growth, such as the estimated $384 billion Joint Strike Fighter (JSF) program (particularly the F-35B model) and the $14.4 billion Marine Corps’ Expeditionary Fighting Vehicle (EFV). Other issues arise, such as whether some of these large weapons programs even make sense given the likely set of threats the U.S. is to face in the short and medium term. Some weapons also may be less effective, yet cost far more, than some current weapons in the inventory.

There are deeply entrenched problems within the military-industrial bureaucracy; however, often the biggest obstacle to achieving reform is Congress when lawmakers become overly concerned with parochial interests rather than national security. While many of POGO’s recommendations are geared towards generating greater discipline in the military-industrial complex, Congress needs to exercise greater discipline as well.

POGO Recommendations:

• Emphasize Role of Testing and Evaluation: As prescribed by the Weapon Systems Acquisition Reform Act of 2009, DoD should not allow weapon systems programs to ramp up production until critical technologies to fielding them have been proven through sufficient developmental testing and independent operational test and evaluation. Congress should confer with GAO, the Director of Operational Test and Evaluation, and cognizant developmental test organizations to determine which programs have too much concurrency between development, testing, and production. When too much concurrency is present, Congress should hold funding of programs until they are restructured with less concurrency. The Pentagon should successfully complete realistic prototype testing and evaluation wherever possible, and Congress and GAO should carefully scrutinize any waivers to prototyping. The Director of Developmental Test and Evaluation should be more robustly staffed, report directly to the Under Secretary of Defense for Acquisition, Technology and Logistics, and make a version of each annual report available to the public.
• Hold DoD Accountable: Often DoD fails to follow its own rules for buying Major Defense Acquisition Programs (MDAPs) responsibly. Congress should hold it accountable by regularly investigating and holding hearings on acquisitions. Congress, along with the GAO, should scrutinize any proposed waivers to any part of testing or any other required aspect of the acquisition process and should create a requirement that does not allow the Pentagon to proceed to the next Milestone or sign production contracts until Congress has given it explicit statutory approval to bypass any requirement. All waivers should be made public.
• Improve and Better Scrutinize the Business Case for Major Defense Acquisition Programs: Congress should independently evaluate the risks of acquiring overly complex, expensive systems such as the EFV, the Littoral Combat Ship sea frames, and some versions of the JSF, and determine whether those systems undermine more pressing national security priorities. Congress also should require the Pentagon to use the independent Director of Cost Assessment and Program Evaluation’s cost estimates of programs (rather than the generally more optimistic military service cost estimates) when making decisions and putting together budgets.
• Curtail the Systematic Problem of Over-Reliance on Immature Technology: Congress should shift responsibility for Technological Readiness Assessments at Milestones B and C to DoD’s testing community because of concerns that the Office of the Director of Defense Research and Engineering is not the most appropriate entity for this mission. Furthermore, programs should prove they have reached a higher level of technological maturity before progressing to the next phase of their acquisition than is currently suggested by the DoD’s July 2009 Technology Readiness Assessment Deskbook.
• Make Weapons Programs Auditable: To ensure that taxpayer dollars are effectively used for their intended purpose, Congress should tie weapon systems acquisition to financial management. No new MDAP should pass Milestone B until it has financial systems in place that can capture the full cost of the program in an auditable manner.
• Congressional Ethics Needed When Second-Guessing Pentagon Cancellation of Major Weapons Programs: Once the Pentagon has recommended cancelling an MDAP, Congress can introduce legislation to fund the program anyway. An independent review is needed before Congress can force the Pentagon to buy what it doesn’t want. The review could be conducted by an independent group of experts who do not have financial ties to contractors or the localities that might be impacted by a weapons cancellation—this process can be modeled on the Defense Base Realignment and Closure Commission (BRAC). This BRAC-type commission would issue public recommendations to Congress so that if Congress overrules the recommendations, it would have to provide the public with a written explanation of its reasoning. In addition, there also should be formal disclosure by lawmakers of the contractors and subcontractors in their districts and disclosure of congressional correspondence to the Pentagon by lawmakers made on behalf of these companies.

National Security

Our country’s national defense should never take a back seat to private special interests. But too often it does, putting our nation’s servicemen and women at risk, and elevating the agendas of defense contractors ahead of legitimate national security needs. POGO investigates wasteful military spending, the cozy relationship between defense contractors and procurement officials, and malfunctioning weapons systems in order to draw attention to those cases where our national security has been compromised by greed, and in many cases, sheer incompetence. Click on the program areas below to learn more.

A-10 Warthog Aircraft
Despite widespread acclaim by the pilots who fly them, the Air Force brass has repeatedly tried to kill the unglamorous A-10 Warthog program. POGO has and will continue to defend this highly effective and relatively inexpensive aircraft.

B-1 Bomber
Originally conceived in the 1960s as a long-range conventional bomber, the B-1 has been plagued in recent years by a skyrocketing price tag and technical difficulties, while its key requirements have been reduced. The B-1 may no longer be as relevant given its more cost effective alternatives. As the B-1 nears the end of its service life, The Air Force is planning for the integration of next-generation long-range bombers

B-2 Bomber
The most expensive airplane ever built, the B-2 bomber is a perfect example of what the malfunctioning defense acquisition system tends to produce: tremendously expensive and complex weapons in quantities much smaller than originally intended. POGO is also concerned that the B-2’s most distinguishing characteristic, its ability to evade enemy radar, has proven to be unreliable.

Ballistic Missile Defense
Currently the single most expensive weapons system in the Pentagon’s annual budget, the U.S. missile defense program utilizes a questionable acquisition strategy that involves researching, procuring, fielding, testing, and evaluating missile defense assets all at once, making it difficult to ensure that taxpayer dollars are well spent. While POGO does not take a position, pro or con, on missile defense, we believe there needs to be better oversight, testing, and financial accountability in the missile defense program.

Black Hawk Helicopter
Systemic quality control problems at the defense contractor Sikorsky Aircraft have led to defective parts on the Black Hawk helicopter, an aviation workhorse that is prevalent throughout most of the armed services. POGO has argued that Sikorsky should make publicly available the production inspection records for the Black Hawk.

Boeing Tanker Leasing Deal
POGO and its congressional allies uncovered a major Air Force sweetheart deal that would have given Boeing a sole-source leasing contract for tanker aircraft worth tens of billions dollars, much more than it would have cost to simply buy the aircraft. Darleen Druyun, for years the top Air Force procurement official, was discovered to have steered this deal and others to Boeing while negotiating for a higher-paying executive position at the company. Druyun and a top Boeing executive were given prison sentences for attempting to bilk the taxpayer.

C-130J Transport Aircraft
Since its inception in the mid-1990s, the C-130J transport aircraft program has proven to be problematic for U.S. taxpayers. After the Pentagon threatened to cut the program in 2004, the program’s boosters in Congress and Lockheed Martin, the contractor, began a massive disinformation campaign about the alleged need for the aircraft. In 2006, following POGO’s recommendation, the Air Force decided to restructure the C-130J contract, saving taxpayers millions of dollars.

C-17 Airlifter
The C-17 is a four-engine cargo jet designed for intercontinental airlift of large “outsize” payloads to short landing strips in remote areas of the world. In December 2000, the Air Force proposed a possibly illegal arrangement to declare Boeing’s C-17 a “commercial item”--even though the government is the only purchaser of this plane. The result would have been reduced financial oversight of any future Air Force purchases of the cargo plane, and a heavy burden on taxpayers. A few years later, POGO helped to expose a sweetheart deal that would have given Boeing a sole-source leasing contract for the C-17 (see Boeing Leaser Taking Deal).

Comanche Helicopter
Originally conceived in 1983, the requirements for the RAH-66 Comanche helicopter called for a small, lightweight, high performance reconnaissance and attack aircraft. However, to incorporate all these features into a single aircraft, weight had to be added, and new technologies had to be developed because they were either immature or still conceptual in nature. As a result, throughout its history, the Comanche program suffered from dogged funding problems, changing requirements, and wildly unrealistic technological expectations. The Army canceled the Comanche program in 2004, following POGO’s recommendation.

Crusader Howitzer
The Crusader is an armored, mechanized vehicle that was slated to become the Army’s next-generation, 155mm, Self-Propelled Howitzer cannon, supported by a companion ammunition resupply vehicle. POGO recommended canceling the $11.2 billion program after redesign efforts resulted in decreased mission effectiveness. There were also major issues with the Crusader’s development and testing processes. The Crusader was canceled in 2002, in part because it was deemed too heavy to be useful in today’s battles.

CSAR-X
A crucial weapons system requirement for the Air Force’s helicopter replacement program for its combat search and rescue mission, dubbed CSAR-X, was significantly and inappropriately weakened by Air Force program officials to allow Boeing’s Chinook helicopter to compete. Boeing eventually won the CSAR-X contract, worth an estimated $10-15 billion. POGO’s findings indicated that the acquisition process was subverted, and the needs of the warfighter consequently undermined. As a result, the wrong helicopter for the mission may have been procured, possibly putting at risk the men and women in our armed forces who need to be rescued.

Defense Contractor Mergers
POGO has raised serious concerns about defense contractor mergers, which tend to reduce competition, increase the cost of goods and services, and tie the government’s hands when it may want to suspend, debar, or otherwise hold a contractor accountable. POGO believes that the government should not be using taxpayer funds to pay for “restructuring” costs such as merger expenses and executive compensation. Because the merging of defense contractors affects not just defense spending but all federal contracts, you can learn more about this issue in the Contract Oversight section.

Defense and the National Interest Blog
After a ten-year run of analysis, commentary, and discussion, DNI is no longer generating new content. The site is now maintained and preserved for your reading pleasure by the Project On Government Oversight.

FA-22 Fighter Aircraft
Since its conception in 1986, the Air Force’s F-22A Raptor fighter jet has been the focus of continued debate. Problems range from technical flaws (despite 20 years of research and development) to a cost that is higher per aircraft than any other in history. POGO recently opposed a congressional plan authorizing multi-year procurement of the F-22A, especially after it was revealed that the head of a federal research institute which recommended multi-year procurement was holding stocks and stock options in an F-22A subcontractor.

Future Combat Systems
The Army’s 30-year, $160 billion Future Combat Systems (FCS) program will create a modernized system of armored vehicles, robots, and drones connected via a sophisticated battle command network. But the development of FCS has been plagued by major problems, including poor planning of program requirements and unwarranted levels of confidence in unproven technologies. POGO has also raised concerns about the FCS program being acquired under an Other Transactions Authority (OTA) agreement, which means that it is exempt from contracting controls and oversight mechanisms that are typically in place to protect taxpayers from waste and abuse.

Future Combat Systems (FCS) Resources

Growler ITV
The Growler is an updated version of the M151 Jeep that the U.S. military retired in the early 1980s. POGO has found that the Pentagon is wasting taxpayer dollars on the Growler, an unarmed vehicle that is out of place in today’s missions where troops often have to contend with ambushes and roadside bombs.

Intelligence
POGO advocates for stronger oversight and accountability in the intelligence community. In recent years, POGO has supported measures that would grant greater access to congressional intelligence committees and strengthen whistleblower protections for intelligence personnel.

Joint Strike Fighter Aircraft
The Joint Strike Fighter (JSF) is expected to be the largest military aircraft procurement ever, awarded to Lockheed Martin in 2001 for an estimated $300 billion. But POGO has raised concerns that JSF aircraft will be outfitted with risky and unproven technologies. In addition, a recent Pentagon report looking at how Lockheed manages JSF and other programs concluded that the contractor is non-compliant with industry guidelines for tracking and managing costs.

Littoral Combat Ship

Mine Resistant Ambush Protected Vehicles
Due to their heavy armor and V-shaped hull, Mine Resistant Ambush Protected vehicles (MRAPs) are less susceptible to deadly improvised explosive devices and other types of asymmetric weapons. POGO recently obtained an internal report showing that the Marine Corps "grossly mishandled" requests from Marines in Iraq for more MRAPs, leading to unacceptable delays which have placed U.S. troops at great risk.

Patriot Missile
The Patriot is a surface-to-air missile of central importance to the U.S. Army’s anti-ballistic missile platform. But POGO recently learned that Patriot missiles have been shooting down friendly aircraft in testing as far back as 1993. Even the updated missiles are having problems distinguishing between friendly and enemy aircraft. POGO has criticized the Pentagon for continuing to promote the Patriot despite its knowledge of this serious target discrimination problem.

Predator UAV
The Predator Unmanned Aerial Vehicle is primarily used for surveillance, reconnaissance, and target acquisition. Many Pentagon officials and reporters have praised the Predator for its successful deployment in Kosovo and Afghanistan. But POGO obtained a Pentagon report which concludes that the Predator is “not operationally effective or suitable” due to serious technical limitations, especially when the aircraft is flying in the rain or at nighttime.

Spare Parts
In the 1980s, POGO worked to expose outrageously overpriced military spending on coffee pots, nuts, and other spare parts. Several years later, the contractor-driven campaign to “re-invent government” removed many of the safeguards that were put in place to keep costs low and protect taxpayers from overspending on spare part items. These acquisition reforms allowed contractors to sell “commercial” items without having to provide cost and price data to prove that their prices are fair. As a result, POGO continues to expose spare part horror stories at the Pentagon.

Stryker Armored Vehicle
The Stryker is an eight-wheeled armored combat vehicle produced by General Dynamics. POGO has raised questions about the decision to move away from more heavily armored vehicles in favor of swifter, more lightly armored vehicles like the Stryker. POGO is also concerned that the vehicle has not been adequately tested. A few years ago, an Army think tank identified several technical problems with the Stryker, such as malfunctioning weapons and computer systems and a vulnerability to rocket-propelled grenades (RPGs).

V-22 Osprey Aircraft
The V-22 Osprey, a Marine Corps aircraft that takes off like a helicopter and lands like a plane, has been plagued by countless setbacks since it was first introduced more than 25 years ago. Inside sources familiar with the V-22 have informed POGO about problems with downwash, visibility, de-icing, and emergency egress. There have also been questions raised about the lack of adequate testing and evaluation of the aircraft. POGO has called for the cancellation of the V-22, which has been involved in numerous accidents killing both Marines and civilians.

Wasteful Defense Spending
Year after year, the Congress and the Pentagon support big ticket expenditures for weapons systems that do not work, are constantly run way over budget, and are designed to address different threats from a bygone era. Today, there is even greater urgency for canceling the wasteful programs that drain funds from essential national security needs and put our troops at risk. POGO will continue to investigate and challenge billions of dollars in wasteful Pentagon spending on programs that exist primarily to benefit defense contractors.

Do Something.

Here's what you can do to get involved in POGO's good government efforts.

Stay Informed

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Connect with POGO

• Like POGO on Facebook
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Write to Policymakers

POGO makes it easy for you to make an impact as a good government advocate. Here's what you can do right now:

• Tell your Members of Congress about POGO's reform agenda
• Tell President Obama to nominate an aggressive, independent watchdog in Afghanistan
• Tell your Members of Congress to take a stand for nuclear safety

Make a Donation

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Internship and Fellowship Opportunities

POGO's investigations depend on the work of a dedicated group of interns and fellows. Interns have recently worked on projects such as bringing public attention to wasteful trends in defense procurement policy, improving testing and tightening financial oversight of the missile defense program, increasing security at nuclear weapons and power plants nationwide, and examining the revolving door between the financial industry and its regulators. Learn about POGO's unique opportunities for internships and fellowships.

Contact Us

Project On Government Oversight (POGO)
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Phone: (202) 347-1122
Fax: (202) 347-1116
Email: info@pogo.org

For a look at the lighter side of POGO, swing by our Watercooler.

Protect Federal Whistleblowers, Who Protect Taxpayers: What You Can Do Now

Protect Federal Whistleblowers, Who Protect Taxpayers

Our country must address the growing federal debt, and we cannot afford to tolerate waste, fraud, or abuse in the federal government. We must empower those on the front lines to use safe, legal channels to expose wrongdoing. Today, our federal workforce faces intimidation and retaliation with precious few protections for working to make our government more accountable to taxpayers. Unfortunately, under current law the Merit Systems Protection Board rules against 99 percent of whistleblowers who file suit to defend themselves against retaliation. Fear of committing career suicide leads federal workers to become silent observers when they witness fraud, waste, or abuse. Congress must enact whistleblower reforms that ensure federal whistleblowers who are punished for speaking the truth have the tools they need to fight that retaliation, and win. A bill that would have substantially changed the status quo, the Whistleblower Protection Enhancement Act (WPEA), passed both the Senate and the House. Yet, it was inexplicably held by an anonymous Senator in the last hours of the last Congress.

In addition, only some contractors have whistleblower protections under the law today, leaving our huge shadow government without critical accountability. We must provide best-practice whistleblower protections for all government contractors to reduce waste, fraud, and abuse.

Furthermore, the nearly 3 million Active, Reserve, and National Guard uniformed personnel face a higher hurdle in proving claims of whistleblower retaliation than civil service employees. It is a disgrace that those who serve our country in the military have substandard rights.

Another problem is that the Office of Special Counsel has been without a Special Counsel since Scott Bloch left in disgrace after having allegedly retaliated against whistleblowers within the agency that is charged with protecting federal whistleblowers. We must have a functional OSC to ensure federal employees can come forward with confidence that their legitimate claims of wrongdoing will be properly investigated and that they will be protected for doing so.

In addition, although agencies are required to inform employees of the rights and remedies available to them under the prohibited personnel practices and whistleblower provisions statutes, there is very little enforcement. The OSC has implemented a voluntary certification program for compliance, but participation has been dismal.

POGO Recommendations:

• Enact the Bipartisan WPEA: The Whistleblower Protection Enhancement Act will save billions of taxpayer dollars and countless lives by establishing real, desperately needed protections for those in our government who warn us of waste, fraud, political tampering with science, and other abuses.
• Expand Whistleblower Protections to All Federal Contractors: Congress should pass a bill similar to the one introduced in 2009 by Senator Claire McCaskill to cover all federal government contractors who blow the whistle on wrongdoing.
• Improve the Federal System for Whistleblowing: Congress must conduct rigorous oversight to ensure that agencies do not suppress or retaliate against whistleblowers, that there are strong systems for whistleblowing throughout the government, and that the OSC is fulfilling its mission. Congress also should make the OSC certification program mandatory.
• Strengthen Military Whistleblower Protections: The men and women who serve in the military should have much stronger protections. Congress should pass legislation to upgrade military whistleblower protections to create more independence in investigations and hearings and strengthen the due process rights for service members.

Do Something.

Here's what you can do to get involved in POGO's good government efforts.

Stay Informed

The best way to stay in the loop about our investigations, reports, testimony before Congress, and other releases is to sign up for our email updates. You'll receive an email or two each week highlighting the key developments in the fight for a more effective, open, accountable, and ethical federal government.

Connect with POGO

• Like POGO on Facebook
• Follow POGO on Twitter
• Follow POGO on Tumblr
• Visit POGO's YouTube channel
• Subscribe to the RSS feed for POGO's blog
• Listen to POGO's podcasts

Write to Policymakers

POGO makes it easy for you to make an impact as a good government advocate. Here's what you can do right now:

• Tell your Members of Congress about POGO's reform agenda

FOR IMMEDIATE RELEASE January 12, 2011 1:33 PM

CONTACT: National Whistleblowers Center Lindsey M. Williams (202) 342-1903lmw@whistleblowers.org

A New Opportunity to Protect Federal Employee Whistleblowers

Whistleblower Protection for Federal Employees -- Let's Get it Right

WASHINGTON - January 12 - Today, the National Whistleblowers Center (NWC) issued the following statement:

Whistleblower Protection for Federal Employees -- Let's Get it Right

The new Congress gives whistleblower advocates an opportunity to make a new start on the Whistleblower Protection Enhancement Act ("WPEA"). The National Whistleblowers Center (NWC) today calls on legislators and advocates to get it right this time. Legal protections for federal employees should be enhanced without any provisions that would take away presently existing rights. If any poison pills are included in new legislation, federal employees will continue to suffer when they raise concerns about waste, fraud and abuse in the federal government.

The obituaries over the defeat of the WPEA in the last Congress (S. 372), have taken on an air of nostalgia over how the forces of "good" were defeated by one lone anonymous Senate "hold," that somehow caused a major landmark whistleblower rights bill for federal employees to be defeated. It is a great political story -- if only it was half-true. In reality, the final, compromised version of S. 372 was the worst and weakest whistleblower protection law approved by the Senate or the House over the past 30 years. It was fatally flawed and divisive legislation.

A Roll Back of Important Rights

On May 14, 2009 over 290 public interest organizations, including all of the members of the Make if Safe Coalition, wrote an open letter to President Obama and Congress calling for the enactment of nine significant reforms in the Whistleblower Protection Enhancement Act. Unfortunately, S. 372 failed to include seven of these nine requirements. Worse, it contained two major cutbacks in current rights.

The May 14th letter stated:

It is crucial that Congress restore and modernize the Whistleblower Protection Act by passing all of the following reforms:

* Grant employees the right to a jury trial in federal court; [Note: S. 372 only granted some employees this right, and the right could be completely taken away by the Merit Systems Protection Board]

* Extend meaningful protections to FBI and intelligence agency whistleblowers; [Note: S. 372 completely violated this demand -- all protections for intelligence agency whistleblowers were stripped from the bill]

* Strengthen protections for federal contractors, as strong as those provided to DoD
contractors and grantees in last year's defense authorization legislation; [S. 372 completely violated this demand. No protections for federal contractors were included in the bill]

* Extend meaningful protections to Transportation Security Officers (screeners); [TSA employees were covered - this request was honored]

* Neutralize the government's use of the "state secrets" privilege; [No reform of the "state secrets" privilege was contained. This devastating "privilege" that permits the government to throw out valid whistleblower cases was not reformed or "neutralized"]

* Bar the MSPB from ruling for an agency before whistleblowers have the opportunity
to present evidence of retaliation; [S. 372 not only failed to fix this problem, but it increased the problem by giving the MSPB power to summarily dismiss whistleblower cases without the current right to a hearing on the merits]

* Provide whistleblowers the right to be made whole, including compensatory
damages; [S. 372 honored this demand]

* Grant comparable due process rights to employees who blow the whistle in the course
of a government investigation or who refuse to violate the law; [S. 372 did not include this reform]

* Remove the Federal Circuit's monopoly on precedent-setting cases. [S. 372 did not include this reform. The removal of the Federal Circuit's monopoly was limited to a five year time period, and even within that short scope of opportunity, the Office of Personnel Management could transfer cases filed in other circuits back to the Federal Circuit]

A Strong and Effective Bill Was Possible

A comparison with the modern whistleblower protections passed by Congress make it evident why groups like the National Whistleblowers Center, the Federal Ethics Center, the National Security Whistleblowers Coalition and the No-Fear Coalition were extremely troubled by S. 372.

The demands set forth in the May 14, 2009 letter signed by over 290 public interest groups were not "pie in the sky" utopian dreams. There were pragmatic demands that Congress has listened to and repeatedly enacted into law for other groups of whistleblowers. These are the types of rights that should have been included in the final version of S. 372. Below is a comparison of nine weak provisions contained in S. 372 with the strong versions of reform most recently enacted in the employee protection provisions of the Food Safety Act passed by Congress in December of 2010:

1. Right to Court Access and Jury Trial

S.372

Only federal employees who suffered severe retaliation were eligible for court access and a trial by jury, and S. 372 provided no court access whatsoever for FBI or intelligence agency employees. Additionally, S. 372 created this right as experimental for five years and the right would disappear after 5 years. No other whistleblower law contains these limitations.

Food Safety Act

Any employee who suffers an adverse action is entitled to a jury trial in court.

2. Exhaustion of Administrative Remedies

S. 372

If Merit Systems Protection Board ("MSPB") issues final ruling in 270 days, right to jury trial could be lost forever.

Food Safety Act

Employees preserve all other rights they have by law to have a case heard in federal court by a jury regardless of administrative rulings. Whistleblowers will have a right to court access and a jury trial in all cases if they want.

3. Scope of Protected Activity

S. 372

For the first time in any federal law, the law excluded "minor" violations of law from protection. The law created a "good faith" defense for managers that would be raised in almost every case alleging violations of law.

Food Safety Act

Employees have the right to blow the whistle on any and all violations of federal law, and there is no "good faith" exception for managers.

4. Preliminary Reinstatement

S. 372

The Office of Special Counsel continues to lack the power to order an employee back into his or her job if the OSC finds retaliation. OSC must file a petition for a stay with the Merits Systems Board.

Food Safety Act

The administrative investigatory agency (Department of Labor) has the authority and is required to order an employee back into his or her job if, on the basis of the preliminary investigation, OSHA finds retaliation.

5. Cases Heard by Administrative Law Judges

S. 372

A proposal to have real Administrative Law Judges (ALJs) assigned to hear the whistleblower cases was rejected. Thus, the current system of MSPB "Administrative Judges" (who are not subject to any judicial qualifications whatsoever, and do not even have to be attorneys) remains in place.

Food Safety Act

If a case is heard at the administrative level, the cases are assigned to statutory ALJs, i.e. Administrative Law Judges who are appointed under the ALJ Act, who must meet mandatory qualifications to be a judge and who are provided extraordinary job protections guaranteeing their judicial independence.

6. Burden of Proof

S. 372

If a case is heard in court, the burden of proof for the agency is lowered from clear and convincing to preponderance of the evidence, and it becomes much harder for an employee to win. Specifically, the long-standing "contributing factor" test is repealed for cases that proceed to court. Thus, instead of employees only having to prove that retaliation was a "contributing factor" in the adverse action, employees would have to demonstrate that retaliation was the "motivating" factor. Moreover, employees would always bear the burden of proof that the employer's reason for terminating the employee was a pretext. Under the "contributing factor" test, that burden of proof would have shifted to the employer to demonstrate, by "clear and convincing evidence," that the employee should not have been fired. S. 372 is the first federal whistleblower law passed in over ten years to repeal the "contributing factor" test in whistleblower court cases.

Food Safety Act

Federal courts are required to apply the pro-whistleblower "contributing factor" test.

7. All-Circuit Review

S. 372

S. 372 would have permitted all-circuit review of administrative decisions only if the federal government permitted such reviews. Under S. 372 the Office of Personnel Management was empowered to file a motion and have any appeal transferred to the Federal Circuit for review. There was no limitation placed on this power. Also, all-circuit review was considered "experimental" and after five years even the limited right would be extinguished.

Food Safety Act

Employees would have real all-circuit review. Employers did not have the power to have cases transferred to a pro-employer circuit. In fact, every real judicial circuit would have jurisdiction to hear cases, except the Federal Circuit, which is a special court designed to hear only limited cases. There was no sunset provision in the law.

8. Cut-Backs in Existing Rights

S. 372

This law contained two drastic reductions in the rights currently enjoyed by federal employees. First, Administrative Judges within the MSPB were authorized to grant summary dismissals of cases solely on the basis of agency affidavits. Under current law in place since 1978 such summary dismissals by the MSPB have been barred. Second, the scope of protected disclosures was reduced (i.e. reporting "minor" violations of law would not longer be protected). Prior to S. 372 whistleblower advocates never approved reductions in current rights, but instead tried to strengthen existing laws.

Food Safety Act

The bill only added rights. It also contained a provision guaranteeing that rights currently existing under state laws were not impacted, and guaranteeing that no private contract could reduce rights.

9. National Security Exemption

S. 372

With the full support of S.372-advocates, the House of Representatives cutout all of the limited protections for national security whistleblowers who work at intelligence agencies that were proposed. These employees remain without any coverage under the federal Whistleblower Protection Act. If this cut-back had been approved by the Senate, the possibility of passing a new whistleblower law just covering national security employees was viewed as hopeless, if not completely impossible.

Other laws

No other federal whistleblower law exempts national security employees, or creates this dual structure of protection. For example, under the False Claims Act, federal contractors are all equally covered, regardless of whether the contractor is working on a top-secret national security project or a highway grant. There is equal protection for all employees covered under other laws.

Conclusion

S. 372 was a bad deal for whistleblowers. It failed to include seven of the nine "crucial" requirements deemed essential by over 290 public interest organizations. It actually contained two material "poison pills" or rollbacks from current employee rights, which would have actually harmed whistleblowers and set back reform.

It is time to stop lamenting over what happened with S. 372. It is time to stop pointing fingers and placing blame. It is time to stop obsessing over the past. It is time for the whistleblower advocacy community to look forward and work together. It is time to demand that President Obama fulfill his promise to whistleblowers, and that Congress do its job to fully protect all federal employees who report waste, fraud and abuse.

Links:

NWC Statement "Whistleblower Protection for Federal Employees -- Lets Get it Right"
May 14, 2009 Letter from Public Interest Groups
Whistleblower Protection Enhancement Act (S. 372) passed by Senate on December 10, 2010
Whistleblower Protection Enhancement Act (S. 372) passed by House on December 22, 2010
Petition for a National Whistleblower Protection Act

###

Since 1988, the NWC and attorneys associated with it have supported whistleblowers in the courts and before Congress and achieved victories for environmental protection, government contract fraud, nuclear safety and government and corporate accountability.

National Whistleblowers Center Links:

Home Press Center Action Center

Open the Government: What You Can Do Now

Open the Government

There is obviously a lot of agreement—across party lines—about the need for a more open government. The new rules for the 112^th Congress that were advanced by the new majority in the House include many critical first steps towards opening the work of Congress to the American people. POGO was pleased to see the 72-hour rule for posting legislation online (one of our 2010 recommendations), as well as measures to increase transparency in committee proceedings. But we hope the progress won’t end with the rules for the House.

A number of openness measures were left undone at the end of the last Congress, including improving the Freedom of Information Act (FOIA). FOIA has been a cornerstone for improving our democracy since it was enacted. However, it does not always work as intended, and agencies don’t have enough funding to properly respond to FOIA requests. In addition, POGO is concerned about the proliferation of unnecessary statutory exemptions to FOIA slipped into all kinds of legislation.

POGO is also concerned that the backlash from the WikiLeaks disclosures might increase government secrecy and undermine the public’s right to know. Certainly there are important policy questions to consider, but the government should not move to further restrict speech and legal disclosures of wrongdoing. The consequence of WikiLeaks cannot be silence and fear under the guise of protecting information.

POGO Recommendations:

• Put Reports to Congress Online: Congress should make all reports it requests from the administration or the Congressional Research Service publicly available on a central website. The Access to Congressionally Mandated Reports Act (H.R. 6026), introduced last year by Representative Steve Driehaus (D-OH), is a commonsense reform that could address this issue.
• Improve and Modernize the Freedom of Information Act (FOIA): Ultimately all public information should be affirmatively disclosed and immediately available to the public online in both open-source and original context in a searchable, sortable, and downloadable format. Hearings should be held to consider the concept, such as the approach proposed in the Public Online Information Act of last Congress. But Congress should immediately pass the Faster FOIA Act; a bipartisan bill introduced last Congress by Senators Patrick Leahy (D-VT) and John Cornyn (R-TX) to create a board to examine ways to improve FOIA. Congress should review the overuse of FOIA exemptions, and implement a procedure to allow for adequate examination of statutory exemptions in proposed legislation by the appropriate committees of jurisdiction. Also, more funding for FOIA should be mandated, perhaps as a set percentage of budgets or as a formula based on the volume and types of requests.
• Support the New Open Government Infrastructure: Progress is being made in transforming the culture and practices of agencies through the Open Government Directive. Congress should help support, not undermine, these efforts by ensuring agencies have adequate resources to fulfill their FOIA obligations and the Obama administration’s mandate for more transparency, collaboration, and participation.

Do Something.

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• Tell your Members of Congress about POGO's reform agenda

We're asking you to join OpenTheGovernment.org by adding your name to the Statement of Values. We're inviting both organizations and individuals to sign.To add your organization or name, please email us!

Next, sign up for our email list to receive our Policy and News Updates and periodic alerts.

Statement of Values

To protect the safety and well-being of our families, homes, and communities; to hold our government accountable; and to defend the freedoms upon which our democracy depends; we, the undersigned individuals and organizations, believe the public has a right to information held by our government.

The American way of life demands that government operate in the open to be responsive to the public, to foster trust and confidence in government, and to encourage public participation in civic and government institutions.

The public's right to know promotes equal and equitable access to government, encourages integrity in official conduct, and prevents undisclosed and undue influence from special interests.

OpenTheGovernment.org seeks to advance the public's right to know and to reduce secrecy in government.

December 8, 2009

M10-06

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

FROM: Peter R. Orszag, Director

SUBJECT: Open Government Directive

In the Memorandum on Transparency and Open Government, issued on January 21, 2009, the President instructed the Director of the Office of Management and Budget (OMB) to issue an Open Government Directive. Responding to that instruction, this memorandum is intended to direct executive departments and agencies to take specific actions to implement the principles of transparency, participation, and collaboration set forth in the President’s Memorandum. This Directive was informed by recommendations from the Federal Chief Technology Officer, who solicited public comment through the White House Open Government Initiative.

The three principles of transparency, participation, and collaboration form the cornerstone of an open government. Transparency promotes accountability by providing the public with information about what the Government is doing. Participation allows members of the public to contribute ideas and expertise so that their government can make policies with the benefit of information that is widely dispersed in society. Collaboration improves the effectiveness of Government by encouraging partnerships and cooperation within the Federal Government, across levels of government, and between the Government and private institutions.

This Open Government Directive establishes deadlines for action. But because of the presumption of openness that the President has endorsed, agencies are encouraged to advance their open government initiatives well ahead of those deadlines. In addition to the steps delineated in this memorandum, Attorney General Eric Holder earlier this year issued new guidelines¹ for agencies with regard to the Freedom of Information Act (FOIA). With those guidelines, the Attorney General reinforced the principle that openness is the Federal Government’s default position for FOIA issues.

This memorandum requires executive departments and agencies to take the following steps toward the goal of creating a more open government:

1. Publish Government Information Online
   To increase accountability, promote informed participation by the public, and create economic opportunity, each agency shall take prompt steps to expand access to information by making it available online in open formats.² With respect to information, the presumption shall be in favor of openness (to the extent permitted by law and subject to valid privacy, confidentiality, security, or other restrictions).
   1. Agencies shall respect the presumption of openness by publishing information online (in addition to any other planned or mandated publication methods) and by preserving and maintaining electronic information, consistent with the Federal Records Act and other applicable law and policy. Timely publication of information is an essential component of transparency. Delays should not be viewed as an inevitable and insurmountable consequence of high demand.

   2. To the extent practicable and subject to valid restrictions, agencies should publish information online in an open format that can be retrieved, downloaded, indexed, and searched by commonly used web search applications. An open format is one that is platform independent, machine readable, and made available to the public without restrictions that would impede the re-use of that information.
      
   3. To the extent practical and subject to valid restrictions, agencies should proactively use modern technology to disseminate useful information, rather than waiting for specific requests under FOIA.
      
   4. Within 45 days, each agency shall identify and publish online in an open format at least three high-value data sets (see attachment section 3.a.i) and register those data sets via Data.gov. These must be data sets not previously available online or in a downloadable format.

   5. Within 60 days, each agency shall create an Open Government Webpage located at http://www.[agency].gov/open to serve as the gateway for agency activities related to the Open Government Directive and shall maintain and update that webpage in a timely fashion.
      
   6. Each Open Government Webpage shall incorporate a mechanism for the public to:
      
      1. Give feedback on and assessment of the quality of published information;
         
      2. Provide input about which information to prioritize for publication; and
         
      3. Provide input on the agency’s Open Government Plan (see 3.a.).
         
   7. Each agency shall respond to public input received on its Open Government Webpage on a regular basis.
      
   8. Each agency shall publish its annual Freedom of Information Act Report in an open format on its Open Government Webpage in addition to any other planned dissemination methods.
      
   9. Each agency with a significant pending backlog of outstanding Freedom of Information requests shall take steps to reduce any such backlog by ten percent each year.
      
   10. Each agency shall comply with guidance on implementing specific Presidential open government initiatives, such as Data.gov, eRulemaking, IT Dashboard, Recovery.gov, and USAspending.gov.
       
2. Improve the Quality of Government Information
   To improve the quality of government information available to the public, senior leaders should make certain that the information conforms to OMB guidance on information quality³ and that adequate systems and processes are in place within the agencies to promote such conformity.
   1. Within 45 days, each agency, in consultation with OMB, shall designate a high-level senior official to be accountable for the quality and objectivity⁴ of, and internal controls over, the Federal spending information publicly disseminated through such public venues as USAspending.gov or other similar websites. The official shall participate in the agency’s Senior Management Council, or similar governance structure, for the agency-wide internal control assessment pursuant to the Federal Managers’ Financial Integrity Act.⁵
      
   2. Within 60 days, the Deputy Director for Management at OMB will issue, through separate guidance or as part of any planned comprehensive management guidance, a framework for the quality of Federal spending information publicly disseminated through such public venues as USAspending.gov or other similar websites. The framework shall require agencies to submit plans with details of the internal controls implemented over information quality, including system and process changes, and the integration of these controls within the agency’s existing infrastructure. An assessment will later be made as to whether additional guidance on implementing OMB guidance on information quality is necessary to cover other types of government information disseminated to the public.
      
   3. Within 120 days, the Deputy Director for Management at OMB will issue, through separate guidance or as part of any planned comprehensive management guidance, a longer-term comprehensive strategy for Federal spending transparency, including the Federal Funding Accountability Transparency Act and the American Reinvestment and Recovery Act. This guidance will identify the method for agencies to report quarterly on their progress toward improving their information quality.
      
3. Create and Institutionalize a Culture of Open Government
   To create an unprecedented and sustained level of openness and accountability in every agency, senior leaders should strive to incorporate the values of transparency, participation, and collaboration into the ongoing work of their agency. Achieving a more open government will require the various professional disciplines within the Government – such as policy, legal, procurement, finance, and technology operations – to work together to define and to develop open government solutions. Integration of various disciplines facilitates organization-wide and lasting change in the way that Government works.
   1. Within 120 days, each agency shall develop and publish on its Open Government Webpage an Open Government Plan that will describe how it will improve transparency and integrate public participation and collaboration into its activities. Additional details on the required content of this plan are attached. Each agency’s plan shall be updated every two years.
      
   2. Within 60 days, the Federal Chief Information Officer and the Federal Chief Technology Officer shall create an Open Government Dashboard on www.whitehouse.gov/open. The Open Government Dashboard will make available each agency’s Open Government Plan, together with aggregate statistics and visualizations designed to provide an assessment of the state of open government in the Executive Branch and progress over time toward meeting the deadlines for action outlined in this Directive.
      
   3. Within 45 days, the Deputy Director for Management at OMB, the Federal Chief Information Officer, and the Federal Chief Technology Officer will establish a working group that focuses on transparency, accountability, participation, and collaboration within the Federal Government. This group, with senior level representation from program and management offices throughout the Government, will serve several critical functions, including:
      
      1. Providing a forum to share best practices on innovative ideas to promote transparency, including system and process solutions for information collection, aggregation, validation, and dissemination;
         
      2. Coordinating efforts to implement existing mandates for Federal spending transparency, including the Federal Funding Accountability Transparency Act and the American Reinvestment and Recovery Act; and
         
      3. Providing a forum to share best practices on innovative ideas to promote participation and collaboration, including how to experiment with new technologies, take advantage of the expertise and insight of people both inside and outside the Federal Government, and form high-impact collaborations with researchers, the private sector, and civil society.
         
   4. Within 90 days, the Deputy Director for Management at OMB will issue, through separate guidance or as part of any planned comprehensive management guidance, a framework for how agencies can use challenges, prizes, and other incentive-backed strategies to find innovative or cost-effective solutions to improving open government.
      
4. Create an Enabling Policy Framework for Open Government
   Emerging technologies open new forms of communication between a government and the people. It is important that policies evolve to realize the potential of technology for open government.
   1. Within 120 days, the Administrator of the Office of Information and Regulatory Affairs (OIRA), in consultation with the Federal Chief Information Officer and the Federal Chief Technology Officer, will review existing OMB policies, such as Paperwork Reduction Act guidance and privacy guidance, to identify impediments to open government and to the use of new technologies and, where necessary, issue clarifying guidance and/or propose revisions to such policies, to promote greater openness in government.
      

Nothing in this Directive shall be construed to supersede existing requirements for review and clearance of pre-decisional information by the Director of the Office of Management and Budget relating to legislative, budgetary, administrative, and regulatory materials. Moreover, nothing in this Directive shall be construed to suggest that the presumption of openness precludes the legitimate protection of information whose release would threaten national security, invade personal privacy, breach confidentiality, or damage other genuinely compelling interests.

If you have any questions regarding this memorandum, please direct them to opengov@omb.eop.gov or call Nicholas Fraser, Information Policy Branch, Office of Information and Regulatory Affairs, Office of Management and Budget at (202) 395-3785

Attachment - Open Government Plan

1. Formulating the Plan: Your agency’s Open Government Plan is the public roadmap that details how your agency will incorporate the principles of the President’s January 21, 2009, Memorandum on Transparency and Open Government into the core mission objectives of your agency. The Plan should reflect the input of (a) senior policy, legal, and technology leadership in your agency and (b) the general public and open government experts. It should detail the specific actions that your agency will undertake and the timeline on which it will do so.
   
2. Publishing the Plan: Consistent with the deadlines set forth in this Directive, the Plan should be published online on the agency’s Open Government Webpage in an open format that enables the public to download, analyze, and visualize any information and data in the Plan.
   
3. Components of the Plan:
   
   1. Transparency: Your agency’s Open Government Plan should explain in detail how your agency will improve transparency. It should describe steps the agency will take to conduct its work more openly and publish its information online, including any proposed changes to internal management and administrative policies to improve transparency. Specifically, as part of your Plan to enhance information dissemination, your agency should describe how it is currently meeting its legal information dissemination obligations,⁶ and how it plans to improve its existing information dissemination practices by providing:
      
      1. A strategic action plan for transparency that (1) inventories agency high-value information currently available for download; (2) fosters the public’s use of this information to increase public knowledge and promote public scrutiny of agency services; and (3) identifies high value information not yet available and establishes a reasonable timeline for publication online in open formats with specific target dates. High-value information is information that can be used to increase agency accountability and responsiveness; improve public knowledge of the agency and its operations; further the core mission of the agency; create economic opportunity; or respond to need and demand as identified through public consultation.
         
      2. In cases where the agency provides public information maintained in electronic format, a plan for timely publication of the underlying data. This underlying data should be in an open format and as granular as possible, consistent with statutory responsibilities and subject to valid privacy, confidentiality, security, or other restrictions. Your agency should also identify key audiences for its information and their needs, and endeavor to publish high-value information for each of those audiences in the most accessible forms and formats. In particular, information created or commissioned by the Government for educational use by teachers or students and made available online should clearly demarcate the public’s right to use, modify, and distribute the information.
         
      3. Details as to how your agency is complying with transparency initiative guidance such as Data.gov, eRulemaking, IT Dashboard, Recovery.gov, and USAspending.gov. Where gaps exist, the agency should detail the steps the agency is taking and the timing to meet the requirements for each initiative.
         
      4. Details of proposed actions to be taken, with clear milestones, to inform the public of significant actions and business of your agency, such as through agency public meetings, briefings, press conferences on the Internet, and periodic national town hall meetings.
         
      5. A link to a publicly available website that shows how your agency is meeting its existing records management requirements.⁷ These requirements serve as the foundation for your agency’s records management program, which includes such activities as identifying and scheduling all electronic records,⁸ and ensuring the timely transfer of all permanently valuable records to the National Archives.
         
      6. A link to a website that includes (1) a description of your staffing, organizational structure, and process for analyzing and responding to FOIA requests;(2) an assessment of your agency’s capacity to analyze, coordinate, and respond to such requests in a timely manner, together with proposed changes, technological resources, or reforms that your agency determines are needed to strengthen your response processes; and (3) if your agency has a significant backlog, milestones that detail how your agency will reduce its pending backlog of outstanding FOIA requests by at least ten percent each year. Providing prompt responses to FOIA requests keeps the public apprised of specific informational matters they seek.
         
      7. A description or link to a webpage that describes your staffing, organizational structure, and process for analyzing and responding to Congressional requests for information.
         
      8. A link to a publicly available webpage where the public can learn about your agency’s declassification programs, learn how to access declassified materials, and provide input about what types of information should be prioritized for declassification, as appropriate. Declassification of government information that no longer needs protection, in accordance with established procedures, is essential to the free flow of information.⁹
         
   2. Participation: To create more informed and effective policies, the Federal Government should promote opportunities for the public to participate throughout the decision-making process. Your agency’s Open Government Plan should explain in detail how your agency will improve participation, including steps your agency will take to revise its current practices to increase opportunities for public participation in and feedback on the agency’s core mission activities. The specific details should include proposed changes to internal management and administrative policies to improve participation
      
      1. The Plan should include descriptions of and links to appropriate websites where the public can engage in existing participatory processes of your agency.
         
      2. The Plan should include proposals for new feedback mechanisms, including innovative tools and practices that create new and easier methods for public engagement.
         
   3. Collaboration: Your agency’s Open Government Plan should explain in detail how your agency will improve collaboration, including steps the agency will take to revise its current practices to further cooperation with other Federal and non-Federal governmental agencies, the public, and non-profit and private entities in fulfilling the agency’s core mission activities. The specific details should include proposed changes to internal management and administrative policies to improve collaboration.
      
      1. The Plan should include proposals to use technology platforms to improve collaboration among people within and outside your agency.
         
      2. The Plan should include descriptions of and links to appropriate websites where the public can learn about existing collaboration efforts of your agency.
         
      3. The Plan should include innovative methods, such as prizes and competitions, to obtain ideas from and to increase collaboration with those in the private sector, non-profit, and academic communities.
         
   4. Flagship Initiative: Each agency’s Open Government Plan should describe at least one specific, new transparency, participation, or collaboration initiative that your agency is currently implementing (or that will be implemented before the next update of the Open Government Plan). That description should include:
      
      1. An overview of the initiative, how it addresses one or more of the three openness principles, and how it aims to improve agency operations;
         
      2. An explanation of how your agency engages or plans to engage the public and maintain dialogue with interested parties who could contribute innovative ideas to the initiative;
         
      3. If appropriate, identification of any partners external to your agency with whom you directly collaborate on the initiative;
         
      4. An account of how your agency plans to measure improved transparency, participation, and/or collaboration through this initiative; and
         
      5. An explanation of the steps your agency is taking to make the initiative sustainable and allow for continued improvement.
         
   5. Public and Agency Involvement: Your agency’s Open Government Plan should include, but not be limited to, the requirements set forth in this attachment. Extensive public and employee engagement should take place during the formation of this plan, which should lead to the incorporation of relevant and useful ideas developed in that dialogue. Public engagement should continue to be part of your agency’s periodic review and modification of its plan. Your agency should respond to public feedback on a regular basis.

FOOTNOTES

1. http://www.usdoj.gov/ag/foia-memo-march2009.pdf

2. The Federal Government has defined information in OMB Circular A-130, “Management of Federal Information Resources,” as any communication or representation of knowledge such as facts, data, or opinions presented in any medium or format.

3. Information Quality Act, Pub. L. No. 106-554, section 515; see also, “Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies” (67 FR 8452) and your agency’s Information Quality Act guidelines.

4. The Federal Government has defined quality and objectivity in, “Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies” (67 FR 8452). Quality is “…the encompassing term, of which ‘utility,’ ‘objectivity,’ and ‘integrity’ are the constituents.” “‘Objectivity’ focuses on whether the disseminated information is being presented in an accurate, clear, complete, and unbiased manner, and as a matter of substance, is accurate, reliable, and unbiased.”

5. The implementing guidance for the Federal Managers’ Financial Integrity Act can be found in OMB Circular A-123, “Management’s Responsibility for Internal Control.”

6. Paperwork Reduction Act, Pub L. No. 104-13, section 3506(d).

7. 36 CFR Subchapter B – Records Management.

8. E-Government Act of 2002, Pub L. No. 107-347, section 207(e).

9. Executive Order 12958, Classified National Security Information.

POGO’S Reform Agenda: A Good Government Guide For The 112th Congress

POGO’S Reform Agenda: A Good Government Guide For The 112th Congress

For the past 30 years, the Project On Government Oversight (POGO) has championed good government reforms as a nonpartisan, independent watchdog. Implementing the following recommendations will help put the country on the right track to a more effective, accountable, open, and ethical government—one that is truly responsive to the needs of its citizens. Furthermore, while it is always a goal to have the best possible government at the lowest feasible cost, our troubled economy makes it even more imperative that Congress shrink the cost of government thoughtfully. The place to begin to save billions of taxpayer dollars is to reduce waste, fraud, and abuse. We welcome the opportunity for meaningful discussions about this roadmap for reform.

1. Open the Government

• Put Reports to Congress Online
• Improve and Modernize the Freedom of Information Act
• Support the New Open Government Infrastructure

2. Protect Federal Whistleblowers, Who Protect Taxpayers

• Enact the Bipartisan Whistleblower Protection Enhancement Act
• Expand Whistleblower Protections to All Federal Contractors
• Improve the Federal System for Whistleblowing
• Strengthen Military Whistleblower Protections

3. Stop the Drain of Defense Dollars

• Emphasize Role of Testing and Evaluation
• Hold DoD Accountable
• Improve and Better Scrutinize the Business Case for Major Defense Acquisition Programs
• Curtail the Systematic Problem of Over-Reliance on Immature Technology
• Make Weapons Programs Auditable
• Congressional Ethics Needed When Second-Guessing Pentagon Cancellation of Major Weapons Programs

4. Fix the Failures That Led to the BP Gulf Oil Disaster

• Oversee Interior Reorganization
• Investigate the Scientific Integrity of the BP Gulf Oil Disaster Response
• Enact the CLEAR Act Reforms

5. Protect Consumers and Investors

• Ensure Implementation of Wall Street Reform
• Increase Transparency at Financial Regulators
• Hold Regulators Accountable
• Limit the Authority of Self-Regulatory Organizations such as the Financial Industry Regulatory Authority

6. Curb the Costs of the Shadow Government

• Determine the Real Cost of the Shadow Government
• Cut Waste in Contracts
• Reform Interagency Contracts
• Save Money with Audits
• Improve Information on Federal Spending
• Create an Independent Contract Audit Agency
• End Noncompetitive Contracts
• End Certain Private Security Contracting
• Make Lobbying for Taxpayer Dollars More Transparent

7. Raise the Ethical Bar, Slow the Revolving Door

• Slow the Revolving Door
• Make Revolving Door Information More Transparent
• Give the Office of Government Ethics Some Teeth

8. Make Advisors to Our Government More Accountable

• Strengthen Integrity of Federal Advisory Committees

9. Watchdog the Watchdogs, and Give Them More Teeth

• Give Inspectors General (IGs) Necessary Subpoena Power
• Make Investigations of IGs More Transparent
• Ensure IG Independence in FOIA Compliance
• Prevent Tip-Offs
• Encourage More Witness Cooperation with IGs
• Hold IGs Accountable

10. Prevent Foreign Agents from Operating in Secrecy

• Fix Foreign Agent Registration Act

11. Improve Nuclear Security and Save Billions of Taxpayer Dollars

• Recycle the Cold War
• Melt and Dilute
• Scrutinize $12 Billion in Construction Projects
• Inventory Nuclear Materials

12. Make Healthcare Safer

• Free the FDA Advisory Panels from the Profit Motive
• Increase Funding and Reduce the Corruption of Science
• Investigate the FDA
• Retain and Expand the Physician Payments Sunshine Act

1. Open the Government

There is obviously a lot of agreement—across party lines—about the need for a more open government. The new rules for the 112^th Congress that were advanced by the new majority in the House include many critical first steps towards opening the work of Congress to the American people. POGO was pleased to see the 72-hour rule for posting legislation online (one of our 2010 recommendations), as well as measures to increase transparency in committee proceedings. But we hope the progress won’t end with the rules for the House.

A number of openness measures were left undone at the end of the last Congress, including improving the Freedom of Information Act (FOIA). FOIA has been a cornerstone for improving our democracy since it was enacted. However, it does not always work as intended, and agencies don’t have enough funding to properly respond to FOIA requests. In addition, POGO is concerned about the proliferation of unnecessary statutory exemptions to FOIA slipped into all kinds of legislation.

POGO is also concerned that the backlash from the WikiLeaks disclosures might increase government secrecy and undermine the public’s right to know. Certainly there are important policy questions to consider, but the government should not move to further restrict speech and legal disclosures of wrongdoing. The consequence of WikiLeaks cannot be silence and fear under the guise of protecting information.

POGO Recommendations:

• Put Reports to Congress Online: Congress should make all reports it requests from the administration or the Congressional Research Service publicly available on a central website. The Access to Congressionally Mandated Reports Act (H.R. 6026), introduced last year by Representative Steve Driehaus (D-OH), is a commonsense reform that could address this issue.
• Improve and Modernize the Freedom of Information Act (FOIA): Ultimately all public information should be affirmatively disclosed and immediately available to the public online in both open-source and original context in a searchable, sortable, and downloadable format. Hearings should be held to consider the concept, such as the approach proposed in the Public Online Information Act of last Congress. But Congress should immediately pass the Faster FOIA Act; a bipartisan bill introduced last Congress by Senators Patrick Leahy (D-VT) and John Cornyn (R-TX) to create a board to examine ways to improve FOIA. Congress should review the overuse of FOIA exemptions, and implement a procedure to allow for adequate examination of statutory exemptions in proposed legislation by the appropriate committees of jurisdiction. Also, more funding for FOIA should be mandated, perhaps as a set percentage of budgets or as a formula based on the volume and types of requests.
• Support the New Open Government Infrastructure: Progress is being made in transforming the culture and practices of agencies through the Open Government Directive. Congress should help support, not undermine, these efforts by ensuring agencies have adequate resources to fulfill their FOIA obligations and the Obama administration’s mandate for more transparency, collaboration, and participation.

2. Protect Federal Whistleblowers, Who Protect Taxpayers

Our country must address the growing federal debt, and we cannot afford to tolerate waste, fraud, or abuse in the federal government. We must empower those on the front lines to use safe, legal channels to expose wrongdoing. Today, our federal workforce faces intimidation and retaliation with precious few protections for working to make our government more accountable to taxpayers. Unfortunately, under current law the Merit Systems Protection Board rules against 99 percent of whistleblowers who file suit to defend themselves against retaliation. Fear of committing career suicide leads federal workers to become silent observers when they witness fraud, waste, or abuse. Congress must enact whistleblower reforms that ensure federal whistleblowers who are punished for speaking the truth have the tools they need to fight that retaliation, and win. A bill that would have substantially changed the status quo, the Whistleblower Protection Enhancement Act (WPEA), passed both the Senate and the House. Yet, it was inexplicably held by an anonymous Senator in the last hours of the last Congress.

In addition, only some contractors have whistleblower protections under the law today, leaving our huge shadow government without critical accountability. We must provide best-practice whistleblower protections for all government contractors to reduce waste, fraud, and abuse.

Furthermore, the nearly 3 million Active, Reserve, and National Guard uniformed personnel face a higher hurdle in proving claims of whistleblower retaliation than civil service employees. It is a disgrace that those who serve our country in the military have substandard rights.

Another problem is that the Office of Special Counsel has been without a Special Counsel since Scott Bloch left in disgrace after having allegedly retaliated against whistleblowers within the agency that is charged with protecting federal whistleblowers. We must have a functional OSC to ensure federal employees can come forward with confidence that their legitimate claims of wrongdoing will be properly investigated and that they will be protected for doing so.

In addition, although agencies are required to inform employees of the rights and remedies available to them under the prohibited personnel practices and whistleblower provisions statutes, there is very little enforcement. The OSC has implemented a voluntary certification program for compliance, but participation has been dismal.

POGO Recommendations:

• Enact the Bipartisan WPEA: The Whistleblower Protection Enhancement Act will save billions of taxpayer dollars and countless lives by establishing real, desperately needed protections for those in our government who warn us of waste, fraud, political tampering with science, and other abuses.
• Expand Whistleblower Protections to All Federal Contractors: Congress should pass a bill similar to the one introduced in 2009 by Senator Claire McCaskill to cover all federal government contractors who blow the whistle on wrongdoing.
• Improve the Federal System for Whistleblowing: Congress must conduct rigorous oversight to ensure that agencies do not suppress or retaliate against whistleblowers, that there are strong systems for whistleblowing throughout the government, and that the OSC is fulfilling its mission. Congress also should make the OSC certification program mandatory.
• Strengthen Military Whistleblower Protections: The men and women who serve in the military should have much stronger protections. Congress should pass legislation to upgrade military whistleblower protections to create more independence in investigations and hearings and strengthen the due process rights for service members.

3. Stop the Drain of Defense Dollars

Defense spending is in serious need of reform, both in how and what we buy. For the most part, increasing discipline in weapons spending doesn’t require new rules. Rather, better enforcement of the rules that currently exist is needed, especially as they relate to testing and evaluation and hard-nosed assessments of whether critical technologies are ready early in a weapons acquisition. Over-reliance on too many immature technologies critical to the success of a weapon is usually the key reason weapons are delivered billions of dollars over their original cost estimates and years late. At key decision-points known as “Milestones,” where a major weapons program advances from technology validation (Milestone A) to full-scale development (Milestone B) to production (Milestone C), the Pentagon often does not exercise tough oversight or make hard decisions. With the likelihood that Defense Secretary Robert Gates will depart later this year, we may lose a high-level advocate for better accountability within the Pentagon’s weapons portfolio. Despite some reforms over the last few years, the Defense Department still struggles with a variety of weapons programs that face complicated technical challenges and cost and schedule growth, such as the estimated $384 billion Joint Strike Fighter (JSF) program (particularly the F-35B model) and the $14.4 billion Marine Corps’ Expeditionary Fighting Vehicle (EFV). Other issues arise, such as whether some of these large weapons programs even make sense given the likely set of threats the U.S. is to face in the short and medium term. Some weapons also may be less effective, yet cost far more, than some current weapons in the inventory.

There are deeply entrenched problems within the military-industrial bureaucracy; however, often the biggest obstacle to achieving reform is Congress when lawmakers become overly concerned with parochial interests rather than national security. While many of POGO’s recommendations are geared towards generating greater discipline in the military-industrial complex, Congress needs to exercise greater discipline as well.

POGO Recommendations:

• Emphasize Role of Testing and Evaluation: As prescribed by the Weapon Systems Acquisition Reform Act of 2009, DoD should not allow weapon systems programs to ramp up production until critical technologies to fielding them have been proven through sufficient developmental testing and independent operational test and evaluation. Congress should confer with GAO, the Director of Operational Test and Evaluation, and cognizant developmental test organizations to determine which programs have too much concurrency between development, testing, and production. When too much concurrency is present, Congress should hold funding of programs until they are restructured with less concurrency. The Pentagon should successfully complete realistic prototype testing and evaluation wherever possible, and Congress and GAO should carefully scrutinize any waivers to prototyping. The Director of Developmental Test and Evaluation should be more robustly staffed, report directly to the Under Secretary of Defense for Acquisition, Technology and Logistics, and make a version of each annual report available to the public.
• Hold DoD Accountable: Often DoD fails to follow its own rules for buying Major Defense Acquisition Programs (MDAPs) responsibly. Congress should hold it accountable by regularly investigating and holding hearings on acquisitions. Congress, along with the GAO, should scrutinize any proposed waivers to any part of testing or any other required aspect of the acquisition process and should create a requirement that does not allow the Pentagon to proceed to the next Milestone or sign production contracts until Congress has given it explicit statutory approval to bypass any requirement. All waivers should be made public.
• Improve and Better Scrutinize the Business Case for Major Defense Acquisition Programs: Congress should independently evaluate the risks of acquiring overly complex, expensive systems such as the EFV, the Littoral Combat Ship sea frames, and some versions of the JSF, and determine whether those systems undermine more pressing national security priorities. Congress also should require the Pentagon to use the independent Director of Cost Assessment and Program Evaluation’s cost estimates of programs (rather than the generally more optimistic military service cost estimates) when making decisions and putting together budgets.
• Curtail the Systematic Problem of Over-Reliance on Immature Technology: Congress should shift responsibility for Technological Readiness Assessments at Milestones B and C to DoD’s testing community because of concerns that the Office of the Director of Defense Research and Engineering is not the most appropriate entity for this mission. Furthermore, programs should prove they have reached a higher level of technological maturity before progressing to the next phase of their acquisition than is currently suggested by the DoD’s July 2009 Technology Readiness Assessment Deskbook.
• Make Weapons Programs Auditable: To ensure that taxpayer dollars are effectively used for their intended purpose, Congress should tie weapon systems acquisition to financial management. No new MDAP should pass Milestone B until it has financial systems in place that can capture the full cost of the program in an auditable manner.
• Congressional Ethics Needed When Second-Guessing Pentagon Cancellation of Major Weapons Programs: Once the Pentagon has recommended cancelling an MDAP, Congress can introduce legislation to fund the program anyway. An independent review is needed before Congress can force the Pentagon to buy what it doesn’t want. The review could be conducted by an independent group of experts who do not have financial ties to contractors or the localities that might be impacted by a weapons cancellation—this process can be modeled on the Defense Base Realignment and Closure Commission (BRAC). This BRAC-type commission would issue public recommendations to Congress so that if Congress overrules the recommendations, it would have to provide the public with a written explanation of its reasoning. In addition, there also should be formal disclosure by lawmakers of the contractors and subcontractors in their districts and disclosure of congressional correspondence to the Pentagon by lawmakers made on behalf of these companies.

4. Fix the Failures That Led to the BP Gulf Oil Disaster

POGO has a keen interest in addressing the failures of oversight that led to the BP oil disaster, and in ensuring accountability in the response to this offshore oil spill, the largest in our nation’s history. This spill has caused enormous economic problems in the Gulf states, caused hardship for the people in the region, continues to threaten vital ecosystems, and will remain a concern for years to come whenever food is harvested in Gulf waters.

The Interior Department manages public lands and royalties owed to the government for use of our national resources, one of the government’s largest sources of revenue after taxes. Numerous investigations and last year’s BP oil disaster in the Gulf of Mexico have revealed that many government regulators are too close to the companies they oversee, leading to an extreme failure of oversight. While some of Interior has been reorganized and new ethics rules issued, it is unclear if this has been sufficient to ensure better regulation, improve the collection of royalties, and deal with pervasive conflicts of interest. Certainly the ethics reforms have not been broad enough in scope, some of them to the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) employees in the Gulf. Conflicts of interest and ethics lapses were not limited to the Gulf region, and in fact exist throughout Interior, including the Bureau of Land Management, which oversees onshore drilling. Unfortunately, the political will in Congress to reform Interior shut off with the cap of the well, but many problems remain for Congress to address in order to avert another disaster.

In addition, troubling questions have been raised about the scientific integrity in the response to the crisis by federal agencies and the White House. This does not square with the President’s directive to strengthen scientific integrity. Federal government scientists play a vital role in providing policymakers data and scientific analysis to ensure they can make the best, most informed decisions about our environment, health, and national security. The public has a right to know if the opinions of federal scientists were altered, ignored, or oversimplified.

POGO Recommendations:

• Oversee Interior Reorganization: Congress should closely oversee the reorganization and new ethics policies at Interior to ensure that they are being properly implemented, but the problems of lax oversight and the culture of coziness cannot be adequately addressed without legislative reform. Reforms should apply to all of Interior and not merely to the reorganized BOEMRE.
• Investigate the Scientific Integrity of the BP Gulf Oil Disaster Response: Congress should conduct rigorous oversight of the federal response to the oil disaster and hold the Obama administration accountable for any tampering with the science.
• Enact the CLEAR Act Reforms: Congress must codify effective reforms to close the revolving door for all of Interior, improve training for inspectors, end the Royalty-In-Kind program, provide oil and gas industry employees with best-practices whistleblower protections, and enact other good government reforms from the Consolidated Land, Energy, and Aquatic Resources Act of 2010 to ensure that taxpayers get their fair share and companies get fair access to public land.

5. Protect Consumers and Investors

A systemic lack of transparency and accountability at our government’s top financial regulatory agencies contributed directly to the recent financial crisis, leading to the bailout that placed billions of taxpayer dollars at risk, and necessitating a regulatory overhaul, addressed by the Dodd-Frank Act. The Dodd-Frank Act was, on balance, an appropriate response, embodying many POGO-recommended reforms such as the creation of the Consumer Financial Protection Bureau, whistleblower protections, Government Accountability Office (GAO) audits of the Federal Reserve, and more independence for Inspectors General (IG) watchdogging the financial regulators. That is why it is so troubling that some in Congress are already calling for the repeal or de-funding of these critical reforms, many of which have yet to be implemented.

However, there are also many other threats to our financial security that have not yet been adequately tackled by Congress. There continue to be systematic cultural problems, conflicts of interest, and overt secrecy in our financial regulatory bodies. In addition, the Financial Industry Regulatory Authority (FINRA) and other self-regulatory organizations (SROs) are lobbying for expanded authority, even as they resist calls for greater transparency and accountability from their own members. POGO is generally concerned that these SROs have an unduly cozy relationship with the industries they’re tasked with overseeing.

POGO Recommendations:

• Ensure Implementation of Wall Street Reform: POGO urges Congress to ensure the Dodd-Frank Act is fully and properly implemented, and that there is adequate funding for realizing the intent of lawmakers. Congress also must conduct more regular, routine oversight to improve the functioning of our financial regulatory agencies, reduce waste, fraud, and abuse, and save taxpayer dollars.
• Increase Transparency at Financial Regulators: Congress should hold hearings and conduct investigations to monitor transparency and FOIA reforms at the Securities and Exchange Commission (SEC), Commodity Futures Trading Commission (CFTC), Federal Reserve, Consumer Financial Protection Bureau (CFPB), and other financial regulatory agencies. Topics for oversight could include the agencies’ overuse of FOIA exemptions (especially FOIA Exemptions 3, 4, and 8), and establishing strong FOIA practices at the new CFPB.

Also, Congress must provide for full GAO audits of the Fed, the collection and sharing of financial data in a standardized format, more authority for financial regulatory agency IGs to redact and post their own investigative reports, and increased transparency at opaque, semi-private entities such as the regional Fed banks and SROs such as FINRA.

• Hold Regulators Accountable: Congress should ensure that the agencies are addressing internal cultural problems that have prevented them from making the best use of existing resources. Topics for oversight could include the revolving door between agencies and industry, the widespread failure to reward and protect whistleblowers from both inside and outside the government, unimplemented IG recommendations, and the need for greater financial expertise within agencies.
• Limit the Authority of SROs such as FINRA: Congress should not give additional authority to private self-regulatory groups that are opaque and unaccountable to taxpayers. Instead, Congress should examine limiting SRO authority, requiring them to follow the same rules that apply to other regulators, and mandating more transparency and accountability.

6. Curb the Costs of the Shadow Government

Everyone is concerned that the cost of government has spiraled out of control, and yet waste associated with the large shadow government is often ignored. Worse, the waste often grows as an unintended consequence of downsizing the federal workforce. Taxpayers can’t afford this huge amount of waste and potential fraud. In addition, the inaccuracies and delays in information about contractor performance and responsibility exacerbate the failures in oversight and accountability.

In FY 2010, the federal government spent at least $535 billion on contracts and awarded over $554 billion in grants. There are few proper controls for this money due to poorly written contracts, insufficient attention from an overstretched acquisition workforce, and other deficiencies—leading to billions of taxpayer dollars being vulnerable to waste, fraud, and abuse. Furthermore, many of these contracts are with companies whose employees perform critical tasks many believe should be performed by government employees, often creating situations where contractors are overseeing other contractors. Holding contractors accountable is a particular problem in war zones, where accountability of criminal actions is difficult because of evidence-gathering challenges and continuing jurisdictional questions.

Overall, the world of contractors and grantees is still largely not known to the public, although those contractors and grantees are performing a variety of tasks on behalf of the public, paid for by taxpayer dollars. The combined workforce of federal government and government contractor employees needs to be brought into the open. The public—and the government—needs useful information made available in a timely manner and online so that there is far more accountability to taxpayers.

POGO Recommendations:

• Determine the Real Cost of the Shadow Government: Congress should make it a priority to assess the actual cost of government operations, including the shadow government, and the extent to which contracting out has undermined accountability, effective management, and policy-making in federal agencies. Oversight should include an examination of the real costs of using contractors instead of federal employees, including the loss on the investment in skilled workers who go through the revolving door to more lucrative jobs in the taxpayer-funded contractor industry. Congress also should review federal contracts and grants, especially in areas of national security and the health and sciences fields, where spending decisions sometimes stand opposed to what is in the best interest of the American public.
• Cut Waste in Contracts: Congress should pursue genuine contracting reforms that will improve accountability in contract spending and restore the old saying “bang for the buck.” For example, Congress should de-bundle contract requirements in order to invite more contractors to the table. Contracts that lump together multiple goods and services exclude smaller businesses that could successfully provide one good or service, but are incapable of managing massive multi-part contracts. Breaking apart multi-supply or multi-service contracts would also assist the government in reducing the multiple layers of subcontracting now prevalent in federal contracting that can drive up costs while adding little value.
• Reform Interagency Contracts: Interagency contracts should be examined to cut fat and eliminate perverse incentives for agencies like the General Services Administration (GSA) to overcharge other agencies. Congress should appropriate money to agencies to end their reliance on the industrial funding fees collected on orders from other agencies. This system creates a perverse incentive to keep costs or prices high. In other words, agencies might not be seeking the best prices because program revenue would be lost.
• Save Money with Audits: Congress should provide enforcement tools needed to prevent, detect, and remedy waste, fraud, and abuse in federal spending, including more frequent pre-award and post-award audits to prevent defective pricing. Specifically, the GSA Inspector General should have post-award authority to audit cost or pricing information submitted to GSA for the award of Multiple Award Schedule (MAS) contracts.
• Improve Information on Federal Spending: Better information and sharing of information will go a long way to improve accountability of contractors. Congress should pass a bill requiring all contracts, including delivery and task orders, be posted online, increasing the scope of cases included in the federal contractor responsibility and performance database, requiring contractors to provide more information on cost or pricing data, and ensuring that past performance of contractors and all administrative agreements are shared among agencies and made publicly available.
• Create an Independent Contract Audit Agency: The Defense Contract Audit Agency is in essence the de facto Federal Contract Audit Agency for the entire government, not just the Defense Department. However, DCAA auditors are not independent of the Defense Department’s procurement branch. Furthermore, non-DoD agencies must pay for DCAA’s audit services, creating a disincentive for them to utilize DCAA when evaluating contractor proposals. A truly independent FCAA would help keep contractors in check and save more taxpayer dollars than it would cost.
• Restrict Noncompetitive Contracts: Congress should pass legislation that places a one-year time limit on task orders in excess of $100 million. Such unusually large task orders should be required to be re-competed each year. Currently, a contractor can become one of several on a so-called multiple award contract, which allows them to receive task orders for specific projects. Those task orders can be for multiple years that, in effect, become “sole source” contracts. For instance, the LOGCAP IV contract for supplying the troops with meals and logistical support has three contractors “competing” among one another (Dyncorp, Fluor, and KBR).While each task order is competed among those contractors, once selected, the winning offer or has the exclusive right to all the work under that task order. Annual savings are more likely to result if competition takes place on a recurring basis (e.g., annually). Under the present system, once a multi-year task order is awarded, all the government ever sees from the incumbent contractor is an annual price escalation.
• End Certain Private Security Contracting: Private security contractors are performing inherently governmental functions when working in a combat zone or area of significant military operations. Any operations that are critical to the success of the U.S. government’s mission in those areas must be controlled and performed by military personnel.
• Make Lobbying for Taxpayer Dollars More Transparent: Congress must ensure more transparency in procurement lobbying. Both contractors and government officials should be required to report all lobbying related to seeking government funds, and this reporting should be made available to the public online in a timely manner in a searchable and sortable format.

7. Raise the Ethical Bar, Slow the Revolving Door

For years, the government has punted on the issue of government ethics. The revolving door creates actual and apparent ethical concerns, and personal and organizational conflicts of interest raise red flags about the loyalty and financial interests of those working inside and outside the government. The well-oiled revolving door between government and industry has frequently undermined the integrity of the government’s contracting, regulatory, and enforcement activities. There have long been troubling examples of an overly cozy relationship between the regulators and the regulated, most recently the close ties between the SEC and Wall Street, and between DOI and BP.

Some agencies, such as the Department of Defense, SEC, and CFTC require officials to file statements if they intend to go work for a contractor or appear before their former agency on behalf of an outside client shortly after leaving office. Unfortunately, not all agencies keep revolving door information, and those that do don’t make it available online to the public. This makes it is difficult to hold agencies and officials accountable for their close ties with industry. Ensuring public access to who has gone through the revolving door would shine a much-needed light on officials who abuse the revolving door for their own personal gain.

Although the Obama administration has taken unprecedented steps towards a more ethical government, system-wide problems persist. Part of the problem is the lack of oversight and enforcement of existing rules; other problems stem from a lack of adequate restrictions or appropriate penalties.

POGO Recommendations:

• Slow the Revolving Door: Congress should take action to slow the revolving door between the federal government and the industries they regulate. Congress should expand the current rules to apply to all federal employees and all positions with regulated industries, not just lobbyists. Also, the Obama revolving door bans should be made permanent in statute and should apply to all federal employees, not just political appointees. Congress should give a government body, such as OGE, more authority to conduct investigations and enforce the law. Penalties should be adjusted to maximize enforcement and deterrence.
• Make Revolving Door Information More Transparent: Congress should require agencies that keep revolving door databases to make them available to the public online. In addition, Congress should mandate that all departments and agencies keep revolving door and other conflict of interest information and disclose online to the public it in a timely manner.
• Give the Office of Government Ethics Some Teeth: Congress should give OGE the authority to compel department and agency heads to investigate potential violations of ethics law and report the findings to the President (as OSC does regarding whistleblower disclosures). The OGE also ought to have the authority to officially refer cases to the Office of the Inspector General at the agency. Congress needs to conduct regular oversight of training and authority of ethics officers.

8. Make Advisors to Our Government More Accountable

Federal advisory committees have been called “the fifth arm of government” for the influential role they play in advising agencies, Congress, and the President on everything from nuclear energy to FDA drug approvals. The Federal Advisory Committee Act (FACA) provides agencies with certain rules to follow in the establishment and management of advisory committees. The OGE and GSA have also attempted to give agencies guidance on how to run their advisory committees. However, thanks to the inherent shortcomings of FACA, as well as loopholes created by courts over the years, there is very little consistency among advisory committees when it comes to selecting and designating members, identifying and mitigating conflicts of interest, posting materials online, and more.

Last year, the House passed a bill (Federal Advisory Committee Act Amendments of 2010, H.R. 1320) to make federal advisory committees more transparent and accountable by banning political litmus tests for potential appointees, prohibiting the appointment of members with conflicts of interest, instructing the GSA to come up with stronger rules for implementing FACA, and requiring the public disclosure of committee materials such as meeting transcripts.

POGO Recommendations:

• Strengthen Integrity of Federal Advisory Committees: Congress should enact the reforms to FACA passed by the House last year (H.R. 1320). Congress should also consider passing additional requirements for posting conflict-of-interest waivers and recusal statements, giving the public more input in nominating committee members, tracking how agencies respond to committee recommendations, and overhauling the federal advisory committee database on fido.gov.

9. Watchdog the Watchdogs, and Give Them More Teeth

Inspectors General require an extraordinary degree of independence and authority to effectively perform their duties. But they also need to be held accountable for misconduct and inadequate work performance.

Empowering IGs to subpoena deposition testimony from witnesses would enable IGs to ensure better cooperation from outside contractors, former agency employees, and regulated entities in the course of their investigations. Presently only the Department of Defense IG has the power to subpoena deposition testimony from witnesses. However, the power of subpoena should be balanced with the rights of potential witnesses, and checks must be in place to ensure its legitimate use. The scope of subpoena power should not include federal employees, as there are other, more appropriate procedures in place for this purpose. Inspectors General also must do more to make whistleblowers aware of their protections under the law in order to encourage more federal employees to come forward.

POGO is concerned that it is common practice at the SEC Office of the Inspector General, and possibly at other OIGs, to allow the agency general counsel to make the final determination concerning redactions of IG-created records. Inspectors General do not have to go through the agency’s FOIA office, general counsel, or management in order to redact IG-created records to be in compliance with FOIA or any other law. Doing so creates a clear conflict of interest because the agency general counsel is responsible for protecting the interests of the agency and therefore would be more inclined to unnecessarily redact records that might embarrass the agency.

POGO Recommendations:

• Give IGs Necessary Subpoena Power: Congress should empower Inspectors General to subpoena deposition testimony from witnesses who are not federal employees, with some checks to ensure legitimacy and rights for those served.
• Make Investigations of IGs More Transparent: Official communications and findings regarding investigations of IG alleged misconduct from the Integrity Committee of the Council of the Inspectors General on Integrity and Efficiency to the Office of Management and Budget should be made publicly available.
• Ensure IG Independence in FOIA Compliance: Congress should investigate the nature and scope of Inspectors General deferring to the agency’s FOIA office, general counsel, or management for redactions of IG-created records, perhaps to be in compliance with FOIA or any other law. Congress should pass legislation making it clear that IGs must make final determinations for redactions of their reports, rather than allowing agency counsels or other agency personnel to make these determinations.
• Prevent Tip-Offs: Eliminate the Right to Financial Privacy Act provision requiring IGs to notify contractors prior to obtaining the companies’ financial records. This requirement tips off contractors and can harm the government’s ability to investigate federal contracts.
• Encourage More Witness Cooperation with IGs: Congress should consider providing for OIG whistleblower ombudsmen who would be responsible for educating and advising employees of their rights.
• Hold IGs Accountable: Congress should conduct strenuous oversight of OIG operations and hold them to the highest standards of accountability and effectiveness.

10. Prevent Foreign Agents from Operating in Secrecy

The Foreign Agent Registration Act (FARA) is supposed to provide disclosure that allows the U.S. government and the American people to evaluate the statements and activities of foreign agents. But for decades, the GAO has highlighted significant deficiencies in FARA that impede the Department of Justice from effectively enforcing the Act. Most problematic is the ability of persons to exempt themselves from registration. Justice also does not have the power to subpoena documents or to require information from persons who have exempted themselves from FARA.

POGO Recommendations:

• Fix FARA: Congress should amend the FARA to give the Department of Justice the power to subpoena documents and to prohibit persons who represent foreign corporations from exempting themselves from registration.

11. Improve Nuclear Security and Save Billions of Taxpayer Dollars

Tens of billions of dollars can be saved in the nuclear weapons complex by canceling construction of unneeded facilities, whose price-tag has grown in some cases by ten times. In addition, as much as $23 billion in revenue can be generated by downblending the over 300 MT of highly enriched uranium (HEU) that is unneeded for weapons—a prime target for terrorists—to low enriched uranium for use in commercial nuclear power plants. This would significantly reduce costs associated with the storage and security, and safeguard this large quantity of nuclear explosives. It’s a win-win situation.

The Energy Department is also deciding what to do with research reactor spent fuel containing HEU at the Savannah River Site in South Carolina. In 2000, the DOE decided to deploy a melt and dilute technology for disposal of HEU at a cost of $1.6 billion. DOE reversed this decision in favor of the using the 57-year-old H-Canyon reprocessing plant instead. GAO reported in 2008 that the cost of using the H-Canyon would be as much as $4.6 billion.

Spending on nuclear weapons needs to be closely scrutinized. As part of the agreement to get Senate ratification of the New START Treaty, the Obama administration agreed to significantly increase funding for the life extension program of the nuclear weapons stockpile and the modernization of the DOE nuclear weapons complex. Specifically, annual nuclear weapons spending will rise between FY 2010 and 2015 by more than 18 percent from $6.34 billion to $7.83 billion. According to the National Nuclear Security Administration (NNSA), this will be a down payment. Over the next 20 years, the NNSA plans for the U.S. to spend about $167 billion to maintain the U.S. nuclear weapons stockpile and refurbish the weapons research and production complex. Despite the fact that the U.S. nuclear arsenal has been cut in half, and new weapons design and manufacture ended 20 years ago, spending on nuclear warheads has continued to increase. By 2018, NNSA spending is planned to increase by 50 percent above Cold War levels. This does not even include an additional $100 billion projected by the Defense Department for nuclear weapons delivery systems.

POGO Recommendations:

• Recycle the Cold War: Congress should require the DOE to establish a schedule to accelerate the dismantlement of excess HEU-bearing weapons components, and to increase the rate of blend-down into low enriched uranium. The DOE should also be required to store the blended-down material and to sell it in a manner that would not disrupt commercial nuclear fuel markets.
• Melt and Dilute: As much as $3 billion can be saved if the DOE were to reinstate its decision to use the melt and dilute technology at the Savannah River Site. Congress should require the DOE to fulfill its Record of Decision in 2000 to deploy the melt and dilute option for the disposition of spent research reactor spent fuel at the Savannah River Site.
• Scrutinize $12 Billion in Construction Projects: The current cost estimates for the Uranium Processing Facility at Y-12 and the Chemistry and Metallurgy Research Replacement facility at Los Alamos are approximately $6 billion each. The requirements for both buildings are in serious question. Most DOE construction projects increase by three to four times over initial estimates, particularly when they are design-build, as these are. Both of these construction projects are only about 50 percent designed; yet there are imminent plans to begin construction. Congress should hold oversight hearings on these projects and reconsider the scope and requirements for these projects.
• Inventory Nuclear Materials: Currently there is little transparency about the amounts of HEU and plutonium being stored across the weapons complex. Congress should require the executive branch to prepare an accounting of the nuclear weapons materials being stored along with their disposition path. Without this information, Congress is appropriating money in a vacuum.

12. Make Healthcare Safer

POGO has a keen interest in ensuring both public confidence in government science and the public’s health and safety. Unfortunately, there have been pervasive problems with scientific integrity and performance at the Food and Drug Administration (FDA). While the FDA has seemed to perform its mission to advance innovations, it has failed spectacularly in protecting the public health by effectively regulating food, drugs, and medical devices. Warnings from whistleblowers inside the agency of overly cozy relationships and dangerous approvals have not been adequately investigated. In addition, with foreign countries as a growing source of our food and drugs, and with more and more clinical trials conducted overseas, more regulation is needed. Yet, the resources available to this critical agency are insufficient: the FDA only receives around $4 billion annually to regulate around 25 percent of the economy. That means for every $500 of products sold in country, there is only about one federal dollar to approve products, regulate sales and marketing, litigate in court, investigate criminal matters, oversee foreign companies, and more. Worse, the user fees that fund drug and device approvals are negotiated and paid for by drug companies and device manufacturers—resulting in a perverse regulatory incentive. The FDA should not have competing interests between funding and safe drugs and devices.

Too often, problems with drugs and medical devices only become apparent once these products have been on the market for years and used in thousands of people with a range of health problems. Not only is more oversight needed to ensure both adequate pre-approval testing and processes free from industry influence, but there is also an urgent need for more surveillance of drugs and devices on the market.

POGO Recommendations:

• Free the FDA Advisory Panels from the Profit Motive: Congress should ensure the FDA severely restricts the use of experts on FDA advisory panels who have financial ties to the makers of drugs and devices they review. If there are any exceptions made to this rule, then the full explanation for the exception and all financial ties of the panel member should be made public and put online. Also, the FDA must cast a wider net and do more outreach to recruit advisors who do not have conflicts of interest.
  
• Increase Funding and Reduce the Corruption of Science: Next year, Congress will consider reauthorizing the Prescription Drug User Fee Act (PDUFA). Now is the time for Congress to re-examine the user fee funding scheme and explore ways to increase FDA funding and reduce the conflicts of interest created by negotiated fees.
• Investigate the FDA: Congress should take a close look at the FDA’s safety record and conflicts of interest. Congress should ensure that initiatives to reform programs like the 510(k) device approval process are adequate, and further explore regulation of imports and the overseas activities in order to protect people here at home.
  
• Retain and Expand the Physician Payments Sunshine Act: Patients should know more about the relationships between physicians, hospitals, patient advocacy groups, and other health-care institutions and manufacturers of drugs, devices, biologicals, or medical supplies.

Founded in 1981, the Project On Government Oversight (POGO) is a nonpartisan independent watchdog that champions good government reforms. POGO's investigations into corruption, misconduct, and conflicts of interest achieve a more effective, accountable, open, and ethical federal government.

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