By Christopher Effgen
The Disaster Center
July 27, 2004

In his "Farewell Address, Washington explained to us that experience is the best way to determine the existing tendency of a constitution.

The answer to the question as to why there are deep institutional failings in our system of government is simple and complex. The simple answer is because those who operate our institutions are allowed to act irresponsibly, incompetently and lawlessly.

The more complicated answer starts with the fact that the Office of the United States Attorney represents the government of the United States in most criminal prosecutions and is the same agency that defends federal employees and agencies in civil complaints. Because this fact is such a large part of the problem, I am going to repeat this statement in a different way. If a federal employee or agency commits a federal crime against you, the agency that would prosecute the crime is the same agency that is responsible for defending the agency and employee in a civil case.

The courts have supported this in rulings to the affect that while Congress can pass laws that makes certain conduct by Executive branch employees crimes, the Executive branch has the discretion not to prosecute the crime. Neither the court nor the Legislative branch can prosecute criminal conduct by Executive branch employees.

With regard to crimes committed by federal employees, the courts have ruled that if the Legislative branch intended to make crimes by federal employees the subject to civil litigation they could have provided the means for doing so when the legislation was passed. In other words, when the Congress passes a law that makes conduct by federal employees a Federal crime it actually lessons the likelihood that a person may sue the federal officials whom engaged in the conduct.

Congress can pass laws that require Federal employees to act or not act in certain ways, one that creates a ministerial duty. However, if employees of the Executive branch violate the law it does not create a right to sue for damages. If your rights are violated because a federal employee violated such a duty, and you suffer a loss as a result, the court will not hear you, unless the law also grants you the right to sue.

Because the law is interpreted in this way, the people who would normally investigate crimes and who control access to the facts that prove violations of the law, don't act. With respect to the laws of the United States, Executive branch employees and agencies can pretty much get away with anything. No one understands this as well as Federal agencies and employees, lawyers and the courts.

Ordinary individuals who don’t understand the way the system works, may see a wrong and try to complain, but they find no one who will listen to it, let alone, act on their complaint. When an individual of ordinary intellect and conscious finds his or her government engaging in wrongdoing destructive the rights and liberties of the people and reports it, the best defense of the agency to the allegation is simply not to hear it.

When such an individual believes that they must act to prevent the wrongdoing from continuing, their family and friends, who know how the systems works, may well advise them to turn their head away, to ignore the wrongdoing that they see taking place. Given the nature of our law and the way our system operates, it can be construed that this advice is given out of love. The person who ignores the entrities of those they love and pursues the complaint, unless they have unlimited wealth, can only do so at a cost to those who depend upon them and who loved them enough to tell them not to pursue a hopeless cause. Thus the only people who will pursue a complaint to stop the federal government engaging in an alleged wrongdoing are people who don't listen to those who love them, and who don't care about the harm that the activity is going to do to their family.

This is the Federal government's risk/threat reduction strategy. It reduces the threat that the Federal government will be successfully sued to stop it from engaging in wrongdoing. It has the effect of promoting incompetent, irresponsible, and lawless conduct because it has removed the force that would act against it. Its long-term effect is to let the risk/threat build up until an explosion or crash takes place.

Most of the federal employees that I know try to do their jobs the best that they can. Everyone, up to the President of the United States, has someone over them, someone who is ultimately responsible for their conduct.

Federal employees sometimes see wrongdoings take place that are as great, as their grave responsibilities. If they speak out about wrongdoing by their superiors they may face the same consequences that someone in the private sector could face if they reported wrongdoing by their superior to their superior.

Sometimes, even though they may be subject to retaliation, Federal employees do speak out about the wrongdoings and do suffer retaliation. Congress has passed laws to protect these whistleblowers. In theory whistleblowers who wrongly suffer the loss of their jobs may be able to get them back and be compensated for their losses.

Congress created an office to investigate complaints by Executive branch employees who allege that they have been subject to retaliation because of disclosures of wrongdoing. Every federal employee is supposed to know about the existence of this office.

The Office of Special Council (OSC), which is assigned this responsibility, at one point taught agencies courses on how to fire whistleblowers. One head of the office was quoted as saying that whistleblowers should have their heads shot off.

Whistleblowers who are denied relief from the OSC have the option to appeal the denial of their case to the Merit System Protection Board (MSPB). Of cases brought before the MSPB about 5% of the complainants "win," but of these; five years later most of them no longer work for the Federal government. The standard of proof required to win such a case before the MSPB essentially is that the agency could not possibly have had any other reason for terminating the employee.

The manner in which federal agency's operate with respect to those who would come forward to report wrongdoing approximates that of a tribe. Tribal organizations have two extreme punishments for those who violate their unwritten rules that of execution and exile. One might like Socrates speak the truth, but the cost of doing so is exile or death. Attempting to stop wrongdoing within the Federal system is a career killer and professional suicide.

As we are considering the institutional failures in our system of government, we need to look at a system that breeds incompetent, irresponsible, and lawless conduct, will not listen to those who would complain about wrongdoing, and creates an atmosphere of fear for those federal employees who would report it.

The result of the changes that have taken place since the attacks of 9-11-01 is that Executive branch has more power and less reason to act in a manner that is competent, responsible, and lawful.

They would save the reputation of an agency at the cost of destruction of the nation.

Since this article was written a group of former Federal Employees has come forward, whose disclosures were instrumental in enabling the 911 Commission to do its work. To more fully understand the problem every American should read: The Whistleblowers

This document is located at:
http://www.disastercenter.com/911_4.htm

Commentaries On The 9/11 Commission Report
For Those Who Loved Them
Risk/Threat Management
The Terrorism Center
Deep Institutional Failings
WMD -- Weapons of Mass Destruction
The 911 Commission Report and the Markle Foundation's Recommendations
An Example of Data Matching
The Accuracy of Data Matching
What the United States Stands For
The 911 ReportThe complete Commision Report in PDF format (7.4 MB)

Christopher Effgen [send him an mail] is the owner of the Disaster Center web site, and has been active in reporting about disasters by digital means since the site was established in 1996. He has authored articles dealing with wide variety of disaster related topics including risk/threat management, neural networks, the science of disaster communication, and compiled numerous disaster related statistics (many of which are hosted on this site). He is active as a participant in national and international forums promoting disaster mitigation towards the goal of sustainable development.

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