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Obama Administration Hinders FBI Whistleblower Protections & Inspector General Oversight

Michael Horowitz, Justice Department Inspector General testifying before House Oversight & Government Reform Committee

The FBI withholds records the inspector general for the Justice Department should legally be able to access, and, in the process, has impacted the ability of the office to review whistleblower allegations and claims of retaliation. President Barack Obama’s administration has apparently supported this position, which hinders an office that is supposed to provide independent oversight.

Justice Department Inspector General (IG) Michael Horowitz testified at a House Oversight & Government Reform Committee hearing on February 3. He expressed concern, along with IGs from the Environmental Protection Agency and the Peace Corps, that agencies are improperly withholding documents from their offices.

The IG Act, passed by Congress in 1978, states clearly that IGs are “authorized to have access to all records, reports, audits, reviews, documents, papers, recommendations or other materials.” They are to be given access without any exception so they can conduct oversight. Yet, in August 2014, forty-seven of the 72 IGs in government signed a letter urging Congress to reaffirm the intent of the law, which is that offices are to have “timely and unimpeded access to all records available to an agency that relate to that Inspector General’s oversight activities.” [PDF]

Horowitz explained during the committee hearing that the FBI general counsel adopted a legal position in 2010, where the IG for the Justice Department could no longer have access to “grand jury, Title III electronic surveillance, and Fair Credit Reporting Act information, because of disclosure limitations in statutes other than the IG Act.” But the IG had been able to access these records before 2010 without any issues whatsoever. What changed?

The new posture by the FBI (and allowed by the wider Justice Department) means the IG office is wasting time and resources negotiating with FBI officials for access to records.

There are further delays because the IG employees have to go to the Deputy Attorney General or Attorney General for permission to access materials. The Deputy Attorney General or Attorney General then makes a decision to allow access when they decide the oversight will be helpful to their management. It effectively transforms the choice to conduct a review into their decision instead of the IG office’s decision.

“If we have to go through the agency leadership to decide whether we get records, that’s a serious problem undermining our independence,” Horowitz stated.

Horowitz claimed his office has been working to “move forward on a whistleblower retaliation allegation involving an FBI employee and the FBI wants to first review the documents to see if we’re legally entitled” to access. That is a cause of “great concern.” Prompt access to records is necessary for there to be whistleblower protections.

He indicated that an issue has been access to records related to programs, which fall under the Foreign Intelligence Surveillance Act (FISA) and PATRIOT Act. The FBI has challenged whether the IG should be able to review “raw data” from FISA.

“So, what Congress has asked us to do is oversee the FBI’s authorities in those areas to make sure they’re exercised appropriately. To do that we have to know that we’re getting everything and we’re getting everything promptly.”

Congress took action in December 2014 and included a provision in the budget that prohibits the Justice Department from “using appropriated funds to deny, prevent or impede the DOJ OIG’s timely access to records, documents and other materials in the Department’s possession.” It has helped, but President Barack Obama would like to have the provision repealed.

Obama’s new budget suggests, “The Department is unaware of any specific materials the OIG believed necessary to its reviews but to which the OIG has not been granted access.”

This is deceptive, as Horowitz explained, because it “glosses over” how the IG’s office ultimately obtains documents at issue. The FBI seeks permission from the Deputy Attorney General or Attorney General. They are not just handed over as the records should be when requested.

As these offices review allegations of waste, fraud, abuse and/or misconduct to determine if they are accurate, they are impeded when documents are not provided quickly. It makes it difficult to fix and address corruption. It reinforces a culture that encourages clampdowns on employees who challenge conduct or policies within the agency.

The Justice Department rejected a number of key reforms “whistleblower advocates” urged the agency to adopt last year. The Office of Attorney Recruitment and Management (OARM), which handles claims of whistleblower retaliation under FBI whistleblower regulations, decided it would make it possible for “compensatory damages” to be awarded. There are now more people an FBI employee can go to and make a protected whistleblower disclosure. However, it did not adopt “judicial review, the incorporation of administrative law judges, time limits for decisions on cases, hearings upon request and a requirement that federal government employees be produced to provide testimony if it would be relevant to resolving a case.

Justice Department whistleblower and director of National Security & Human Rights division at the Government Accountability Project (GAP), Jesselyn Radack, told Firedoglake these are “hallmarks of due process,” and, “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.”

The Whistleblower Protection Act (WPA), passed in 1989, was long ignored by the FBI and Justice Department, even though it required the Attorney General to regulate FBI whistleblowers in a manner consistent with the WPA. Not until 1997 was any action taken to implement some kind of whistleblower protections.

An FBI legislative affairs official in 2014 suggested to Senator Chuck Grassley—when he raised concerns about the Insider Threat Program intercepting whistleblower communications—that whistleblowers should register with the Program in order to be protected. This just shows how the FBI is not open to accountability whether it come from whistleblowing or oversight by an IG.

Finally, the Obama administration has branded itself the “Most Transparent Administration Ever” yet time and time again there are examples such as this that show how transparent it is that the administration is not really in favor of transparency. Instead, the administration endorses a position that promotes violations of an unambiguous law intended to enhance a system of checks and balances in government. By doing so, entire Executive Branch agencies are able to escape accountability. It also becomes harder for whistleblowers to find protection if they take their claims to an inspector general’s office.

*Horowitz’s full submitted testimony can be found here.

CommunityThe Dissenter

Obama Administration Hinders FBI Whistleblower Protections & Inspector General Oversight

Michael Horowitz, Justice Department Inspector General testifying before House Oversight & Government Reform Committee

The FBI withholds records the inspector general for the Justice Department should legally be able to access, and, in the process, has impacted the ability of the office to review whistleblower allegations and claims of retaliation. President Barack Obama’s administration has apparently supported this position, which hinders an office that is supposed to provide independent oversight.

Justice Department Inspector General (IG) Michael Horowitz testified at a House Oversight & Government Reform Committee hearing on February 3. He expressed concern, along with IGs from the Environmental Protection Agency and the Peace Corps, that agencies are improperly withholding documents from their offices.

The IG Act, passed by Congress in 1978, states clearly that IGs are “authorized to have access to all records, reports, audits, reviews, documents, papers, recommendations or other materials.” They are to be given access without any exception so they can conduct oversight. Yet, in August 2014, forty-seven of the 72 IGs in government signed a letter urging Congress to reaffirm the intent of the law, which is that offices are to have “timely and unimpeded access to all records available to an agency that relate to that Inspector General’s oversight activities.” [PDF]

Horowitz explained during the committee hearing that the FBI general counsel adopted a legal position in 2010, where the IG for the Justice Department could no longer have access to “grand jury, Title III electronic surveillance, and Fair Credit Reporting Act information, because of disclosure limitations in statutes other than the IG Act.” But the IG had been able to access these records before 2010 without any issues whatsoever. What changed?

The new posture by the FBI (and allowed by the wider Justice Department) means the IG office is wasting time and resources negotiating with FBI officials for access to records.

There are further delays because the IG employees have to go to the Deputy Attorney General or Attorney General for permission to access materials. The Deputy Attorney General or Attorney General then makes a decision to allow access when they decide the oversight will be helpful to their management. It effectively transforms the choice to conduct a review into their decision instead of the IG office’s decision.

“If we have to go through the agency leadership to decide whether we get records, that’s a serious problem undermining our independence,” Horowitz stated.

Horowitz claimed his office has been working to “move forward on a whistleblower retaliation allegation involving an FBI employee and the FBI wants to first review the documents to see if we’re legally entitled” to access. That is a cause of “great concern.” Prompt access to records is necessary for there to be whistleblower protections.

He indicated that an issue has been access to records related to programs, which fall under the Foreign Intelligence Surveillance Act (FISA) and PATRIOT Act. The FBI has challenged whether the IG should be able to review “raw data” from FISA.

“So, what Congress has asked us to do is oversee the FBI’s authorities in those areas to make sure they’re exercised appropriately. To do that we have to know that we’re getting everything and we’re getting everything promptly.” (more…)

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."