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FBI Whistleblowers Have No Legal Protection For Making Reports Of Wrongdoing

A Senate Judiciary Committee report concludes Federal Bureau of Investigation employees, including those in the intelligence community, “enjoy no legal protection for making reports of wrongdoing to supervisors or others in their chain of command.” It supports the passage of legislation to institute and expand whistleblower protections for FBI employees.

In 2014, the Justice Department refused to adopt key reforms that would benefit FBI whistleblowers. The department rejected “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 the resolution of a case.”

The proposed Federal Bureau of Investigation Whistleblower Protection Enhancement Act of 2016 seeks to correct a system the Justice Department will not change, by offering FBI employees opportunities for judicial review outside the Justice Department. It expands the list of individuals an FBI employee may make “protected disclosures” to when blowing the whistle.

Currently, the FBI takes advantage of a carve-out in the Whistleblower Protection Act. It sets its own regulations for whistleblowers. Employees may only pursue redress for retaliation by going to “nine persons and entities” on a “designated list.” They may not report wrongdoing to an immediate supervisor in their chain of command and reporting to the wrong individual can lead to the “disqualification” of entirely legitimate complaints.

The arrangement contributes to the culture of hostility against whistleblowers within the agency, however, this legislation would make it so FBI employees could report wrongdoing to a supervisor in their chain of command.

Investigations and adjudication of complaints happen entirely within the Justice Department. There is currently no “opportunity for independent review.” The legislation would change that by allowing a federal circuit court of appeals to hear cases.

“Its necessity has been demonstrated by the lengthy delays and lack of transparency in the Justice Department’s current regulatory process for hearing these cases internally,” according to the committee report. “Courts may set aside decisions that are, among other things, arbitrary and capricious, unsupported by substantial evidence, or without observance of procedure required by law.”

Cases have been known to take up to a decade to resolve. The Government Accountability Office examined 62 complaints closed within 2009 and 2013. It found the Justice Department ruled in favor of whistleblowers in only three instances. In those three cases, it took eight to ten and a half years to complete reviews.

Like the committee report states, “The Justice Department has never made available to FBI whistleblowers litigating reprisal cases the precedent of the Office of Attorney Recruitment and Management or the Deputy Attorney General. This puts litigants at an extreme disadvantage when trying to assert their rights in a contested proceeding.”

The proposed legislation aims to correct this by requiring the Attorney General and administrative law judges to proactively publish decisions in cases so FBI whistleblowers alleging retaliation may understand case law and put together strong cases asserting their rights.

To reduce extraordinary delays in cases, the “legislation requires the Attorney General to establish and announce publicly the date by which the Attorney General intends to complete his or her review.”

The proposed legislation also contains a provision that would make it possible to strip FBI employees of pay if they take actions to prohibit or threaten a person who makes a whistleblower disclosure. An FBI employee engaged in this retaliation could be removed, suspended without pay, demoted, lose rank, seniority, or status.

It attempts to protect whistleblowers from relocation, transfers, discipline, and loss of benefits or other employee rights as a way of punishing them for complaining about wrongdoing.

The changes in the proposed bill represent reforms whistleblower advocates have spent the past years urging the Justice Department to incorporate so FBI whistleblowers may have some level of protection.

The Justice Department has disregarded calls for meaningful reforms. In addition to maintaining a status quo that stigmatizes whistleblowers, the department has also stonewalled and denied the inspector general access to records it is legally mandated to access for oversight and review of whistleblower complaints.

For years, senators and representatives have shown quite a bit of deference to the Justice Department, even though their culture of hostility toward FBI whistleblowers is completely indefensible. They have held off pursuing legislative reforms, believing the Justice Department would embrace reasonable administrative changes. But there are senators, like Senator Chuck Grassley, Senator Claire McCaskill, and Senator Ron Wyden, who apparently will not wait any longer for the Justice Department to change its corrupt culture against whistleblowers.

Kevin Gosztola

Kevin Gosztola

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