Under a presidential policy directive President Barack Obama issued in October 2012, which applied to whistleblowers with “access to classified information,” Attorney General Eric Holder was required to deliver a report within 180 days that assessed the “efficacy” of the FBI’s regulations. But it was not until June 2, 2014, that Holder delivered this report that was long overdue.
Senators Chuck Grassley and Ron Wyden wrote a letter to Obama on August 12, that requested a copy of this report put together by the Justice Department. The letter expressed the necessity for the FBI to improve its regulations to prevent retaliation against whistleblowers. A copy of the report was finally provided to the senators along with a letter dated October 17.
The report [PDF] indicates that the Office of Attorney Recruitment and Management (OARM), which handles claims of whistleblower retaliation under FBI whistleblower regulations, will now be able to award “compensatory damages.” The people who an FBI employee make a protected whistleblower disclosure will be expanded from only the highest-ranking FBI field office officials to the second-highest ranking tier.
It also has apparently created a “voluntary mediation program” for FBI whistleblower cases. The Justice Department suggests this may make it easier to resolve “workplace disputes.”
Unfortunately for potential FBI whistleblowers, the Justice Department rejected recommendations from “whistleblower advocates” to allow “judicial review,” incorporate administrative law judges, impose time limits for decisions on cases, grant hearings upon request and require the production of a federal government employee, whose testimony may be relevant to the resolution of a case.
The Justice Department supports prohibiting judicial review by having whistleblower claims litigated in a closed system because of the “FBI’s involvement in national security work” and in law enforcement. It claims Congress made a “deliberate choice” to have the system setup this way and maintains it is appropriate.
Though the agency claimed to be considering equal access to witnesses and the publication of decisions in whistleblower cases, the Justice Department did not give a definitive indication of how long it might be before whistleblowers could expect any changes related to these issues.
Jesselyn Radack, a Justice Department whistleblower and director of National Security & Human Rights division at the Government Accountability Project (GAP), reacted, “The proposed reforms are better than the current state of affairs, but that’s not saying much. It should not have taken a Presidential Policy Directive and pressure from two committed senators for the Justice Department to realize this process was dysfunctional.”
“The changes rejected by the Justice Department are the hallmarks of due process: judicial review, a neutral judge, a right to a hearing, and production of witnesses,” Radack added.
GAP represents a number of whistleblowers in a court of law and in the court of public opinion. In the organization’s experience, going through the OARM process has only resulted in “more retaliation” for whistleblowers.
“While I’m glad to see that the Department of Justice recognizes that whistleblower protections for FBI employees are disastrously inadequate, as long as the Justice Department is the prosecutor, judge and jury, whistleblowers who challenge the most politically sensitive wrongdoing will have a hard time finding justice from OARM,” Radack argued. “Should OARM fail a whistleblower, the only appellate authority is the Office of Deputy Attorney General. That’s cold comfort if lawbreaking—such as torture and secret surveillance—was approved by the Justice Department, as it was during the Bush era.”
Significantly, FBI employees would still not be able to make protected whistleblower disclosures to their immediate supervisor.
As Grassley characterized the changes, “Nobody’s got on rose-colored glasses that the culture for whistleblowers at the FBI will change anytime soon, but many of the items outlined in the FBI’s analysis are promising. I’m not a fan of all of the recommendations, but it would at least be a step forward if some of them are actually implemented and carried out. That said, in an agency with so much focus on the chain of command, it makes no sense for the FBI to be the only agency in the federal government not to protect disclosures of waste, fraud, and abuse to immediate supervisors.”
The following offices may handle FBI whistleblower retaliation cases — OARM, the Office of Inspector General (OIG) and the Office of Professional Responsibility (OPR).
Statistics in the report show that OIG determined the claims of whistleblower retaliation “warranted investigation” in 15 of the 85 closed cases between the beginning of 2005 and March 15, 2014.
During that same period, two cases out of 24 cases were deemed to warrant investigation by OPR. Four of 50 cases were deemed to warrant investigation by OARM.
“These abysmal percentages speak to how the system is stacked against whistleblowers every step of the way,” Radack asserted.
It is important to note that the Justice Department recognizes that part of the reason why whistleblowers’ claims fail to move forward to investigation is because they are not “made to the proper individual or office” or that they did not “allege the type of violation or other misconduct” that can be handled under regulations.
“FBI employees may not be aware that within field offices a disclosure is protected only if made to the highest-ranking official [now second-highest ranking] in the office,” the report acknowledges. However, this dysfunction would seem to have sustained itself for nine years or more as a service to officials, who would be implicated if proper channels worked better for employees.
In the same month that this Justice Department report was drafted, Grassley delivered a speech on the Senate floor marking twenty-five years since the Whistleblower Protection Act was signed into law. He railed against the FBI for its historically poor record on whistleblower protections.
“The protections of the Whistleblower Protection Act didn’t apply to the FBI. Yet that law did require the Attorney General to implement regulations for FBI whistleblowers consistent with those in the Whistleblower Protection Act. However, it soon became clear that was a little like putting the fox in charge of the henhouse. The Justice Department and the FBI simply ignored that part of the law for nearly 10 years. Not until 1997 did the Attorney General finally implement regulations for whistleblowers in the FBI,” Grassley recalled.
In fact, this rather stunning story Grassley told is quite relevant to whether the culture has changed at the FBI or not:
…[T]he FBI fiercely resists any efforts at Congressional oversight, especially on whistleblower matters. For example, four months ago I sent a letter to the FBI requesting its training materials on the Insider Threat Program. This program was announced by the Obama Administration in October 2011. It was intended to train federal employees to watch out for insider threats among their colleagues. Public news reports indicated that this program might not do enough to distinguish between true insider threats and legitimate whistleblowers. I relayed these concerns in my letter. I also asked for copies of the training materials. I said I wanted to examine whether they adequately distinguished between insider threats and whistleblowers.
In response, an FBI legislative affairs official told my staff that a briefing might be the best way to answer my questions. It was scheduled for last week. Staff for both Chairman [Patrick] Leahy and I attended, and the FBI brought the head of their Insider Threat Program. Yet the FBI didn’t bring the Insider Threat training materials as we had requested. However, the head of the Insider Threat Program told the staff that there was no need to worry about whistleblower communications. He said whistleblowers had to register in order to be protected, and the Insider Threat Program would know to just avoid those people.
Now I have never heard of whistleblowers being required to “register” in order to be protected. The idea of such a requirement should be pretty alarming to all Americans. Sometimes confidentiality is the best protection a whistleblower has. Unfortunately, neither my staff nor Chairman Leahy’s staff was able to learn more, because only about ten minutes into the briefing, the FBI abruptly walked out. FBI officials simply refused to discuss any whistleblower implications in its Insider Threat Program and left the room. These are clearly not the actions of an agency that is genuinely open to whistleblowers or whistleblower protection.
So, contrary to the Wall Street Journal‘s framing, the FBI is not “revamping” the rules but is tinkering around the edges to create the appearance of major reform.
The federal official, who whispered in a Wall Street Journal reporter’s ear some sensational statements about how these rules may make whistleblowing “potentially lucrative,” is incorrect to put it that way. No personnel will be pursuing whistleblowing to get rich off of reporting misconduct. And no personnel will be able to guarantee that they will have favorable outcomes in their cases, where their allegations are appropriately investigated, either.
*Image used for story appears on Justice Department’s own government website & is in the public domain