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FBI’s Culture of Hostility Toward Whistleblowers—And How Justice Department Permits Policy of Retaliation

by: Thursday March 5, 2015

During a Senate Judiciary Committee hearing on FBI retaliation against whistleblowers, FBI associate deputy director Kevin Perkins declared, “We will not and do not tolerate retaliation against whistleblowers in the FBI.” The astonishing remark was made as the committee chairman, Senator Chuck Grassley, reported that an FBI whistleblower had recently emailed him to report retaliation.

The Washington Times’ Kelly Riddell reported on March 2 that a whistleblower has found who the agency selects to serve on surveillance teams is “now all about bias and favoritism and the good ol’ boy system.” Nepotism is impacting the agency as young relatives of “high-ranking supervisors” have been placed on “elite surveillance teams.” Two have been “fast-tracked to full special agent status.”

This FBI whistleblower attempted to go to supervisors. His complaint was dismissed, and he was given a “poor personnel review.” So, the whistleblower turned to Congress and emailed Grassley.

On March 3, one day later, Riddell reported the Office of Integrity and Compliance in the Justice Department advised him that he could face whistleblower retaliation.

“The main question would turn on the reasonableness of your belief; that is, would a reasonable person, in your situation, believe that the conduct at issue demonstrated mismanagement or abuse of authority?” the FBI attorney, within the Office of Integrity and Compliance, wrote in an email responding to the whistleblower’s inquiry. “In my opinion, yes.”

Then came the kicker: “I’m sure you know, though, this does not guarantee that you will not be retaliated against, even though retaliation/reprisal for making protected disclosures is illegal,” the attorney concluded in the August email to the whistleblower.

Grassley said prior to the hearing he was subject to further retaliation. Riddell reported that the whistleblower had been given a desk job and taken off a surveillance team.

The unfolding episode exemplifies the culture of hostility toward whistleblowers, which was repeatedly highlighted during the hearing.

Because of a carve-out in the Whistleblower Protection Act, the FBI may exclusively set its own regulations for whistleblowers, and, unlike other executive branch agencies, employees may not report wrongdoing in their chain of command including their immediate supervisor. There are nine individuals, who the Justice Department maintains may accept complaints. They are in the Attorney General’s office, the FBI Director’s office, the Justice Department Inspector General’s office or special agents in charge (SAIC).

Report to the wrong person or involve individuals not authorized to receive complaints, and the Justice Department can disqualify that employee from being granted protection from retaliation. It is a policy that effectively permits bullying and harassment from supervisors offended by whistleblowers.

Whistleblower Mike German, a former FBI special agent, testified, “In 2002, I was assigned to the Atlanta Division but was asked to work undercover in a Tampa counterterrorism investigation. As the operation began, I learned that the informant had illegally recorded a portion of the conversation between two subjects earlier in the investigation imperiling any possible prosecution. When the Tampa supervisor refused to address the matter and told me to pretend it didn’t happen, I felt duty-bound to report it. Luckily, I researched the proper procedure and realized I should make the report to the Tampa SAIC.”

“But I also knew failing to provide notice to my chain of command in Atlanta would cause problems for them, which would ultiamtely cause problems for me. So I called my supervisor to tell them I was going to call my assistant SAIC to tell him I was going to call the Tampa SAIC to make a whistleblower report. When I talked to my ASAIC, he asked me to write the complaint in an email to him, which he would forward to the Tampa SAIC.”

Because German transmitted his complaint through the ASAIC, the Justice Department decided he forfeited his right to be protected from retaliation he experienced for sending the email. Tampa officials involved in misconduct, falsified documents to cover it up and retaliated against German were not punished. Two individuals subsequently received promotions and became SAICs.

As German stated during the hearing, “FBI and Justice Department pay lip service to whistleblowers but the byzantine procedures they employ all but ensure that whistleblower employees reporting misconduct will not be protected from retaliation.

A report by the Government Accountability Office (GAO) on the Justice Department’s handling of FBI retaliation—publicly released on February 23—further demonstrates how the process is setup to ensure whistleblowers are neutralized and even silenced. GAO reviewed a sample of 62 cases and found a third of the cases involved employees blowing the whistle to the wrong person.

Only three of the 62 cases were deemed valid whistleblower claims by the Justice Department and those cases dragged out for eight to ten and a half years.

In one particular case, Kohn recalled how FBI special agent Jane Turner blew the whistle on Minneapolis FBI personnel, who were stealing 9/11 victims’ property from Ground Zero in New York City. The FBI retaliated against Turner for “tarnishing” their image and forced her to resign after 25 years with the agency. Her claims of retaliation were eventually validated, however, the review of her claims dragged on for so long that she had passed the mandatory retirement age, which meant she could not be reinstated.

Kohn also highlighted the case of Bassem Youssef. He served as one of the FBI’s highest-ranked Arabic-speaking agents and even was involved in operations prior to 9/11 that involved infiltrating al Qaeda. He has raised concerns about discrimination against Arab Americans in the FBI, challenged the agency for failing to recruit more Arabic-speaking agents and even experienced firsthand the abuse of national security letters by the agency.

His case has been pending for nine years. The Justice Department’s Office of Professional Responsibility ordered the agency to allow him to go back to work on counterterrorism in 2006, but the department allowed the case to be prolonged and he retired in September of last year. He was one year away from the mandatory retirement age.

“The prolonged delays in processing the whistleblower claims sends a clear message to all FBI agents: don’t blow the whistle. If you do, the messenger is shot.”

The Justice Department’s refusal to meaningfully address the status quo, which has a chilling effect on potential whistleblowers, effectively encourages employees to not challenge corruption because if they do they will be forced out of the agency and stigmatized as a whistleblower for life.

With perhaps the exception of Perkins, there was unanimous consent at the hearing, including among the handful of senators asking questions, that there needs to be a culture change at the FBI as well as a legislative fix so that the Justice Department no longer has a carve-out, where it can make its own rules for whistleblowers.

The Justice Department recently rejected key 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 department has also effectively stonewalled and denied the inspector general access to records it is legally mandated to access for oversight and review of whistleblower complaints. Congress’ inaction all but ensures this will continue.

Grassley spoke about the effect an annual ceremony held in the Rose Garden at the White House to honor whistleblowers could have on changing the culture. He recalled how one president rejected the idea and told him if this was done there’d be “3,000 whistleblowers coming out of the woodwork.” But that is exactly what everyone should want to see happen if one wants to see change actually happen in government, Grassley added.

***

Here is my appearance on HuffPost Live today to talk about this very issue with German, Kohn and Riddell.

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