February 27, 2015

DOJ Gets Failing Marks For Treatment Of FBI Whistleblowers

By the C|C Whistleblower Lawyer Team

The Government Accountability Office (GAO) this week released its much anticipated report on the Department of Justice’s treatment of FBI whistleblowers.  The GAO’s findings do not speak well of the government’s treatment of this particular class of intelligence whistleblower.  In short, the GAO found the DOJ has not properly handled complaints of FBI whistleblower retaliation; has not provided clear guidance on the proper channels through which these whistleblowers should report wrongdoing; and ultimately, has created a chilling effect for future FBI whistleblowers thinking about keeping their complaints within the agency.  Not exactly the kind of report that will dampen the recent rush of intelligence whistleblowers reaching out to the press.

The GAO’s findings were based on its review of the DOJ case files for all FBI whistleblower retaliation complaints closed within the past five years (there were 62 of them).  The GAO also interviewed whistleblower lawyers, whistleblower advocates and various government officials about the FBI whistleblower complaint process.  Here are some of the GAO’s more notable findings:

  • Of the 62 whistleblower retaliation complaints, the DOJ awarded corrective action in only 3 of them.
  • The DOJ terminated 48 of the 62 complaints based on their failure to meet certain threshold regulatory requirements, rather than on whether whistleblower retaliation actually occurred.
  • The most common reason these complaints did not pass muster was because the underlying whistleblower disclosure was made to an FBI or DOJ official not among the select group of government officials to whom FBI whistleblower disclosures are permitted such as the whistleblower’s immediate supervisor.
  • The DOJ adjudicated only 4 complaints on the merits and the 3 on which the DOJ ruled in favor of the whistleblower took more than 8 years to resolve.
  • The DOJ failed to provide the whistleblowers with periodic status updates or obtain their consent for extensions of time as required under the agency regulations.
  • The DOJ and FBI failed to provide clear guidance on the proper individuals to whom whistleblowers should report wrongdoing.

Senator Chuck Grassley (R-Iowa), Chairman of the Senate Judiciary Committee and the long-time advocate for whistleblowers who commissioned the GAO report, made it very clear he was not happy with these reported failings.  In a press statement he issued to coincide with the report’s public release, he complained about the FBI’s treatment of whistleblowers and the need to remedy this gaping hole in our whistleblower regime:

The FBI and Department of Justice, in particular, have a vested interest in investigating wrongdoing, yet when an FBI employee uncovers misconduct within the agency’s own ranks, it’s not so easy to sound the alarm without the risk of retaliation.  This report confirms that reforms are needed to empower whistleblowers at FBI and ensure they are effectively and efficiently protected against retaliation in the workplace.

In this vein, the GAO made several recommendations.  One, Congress should consider whether disclosures of wrongdoing to supervisors and others in the FBI employee’s chain of command should be protected.  Two, the DOJ and FBI should clarify to whom FBI employees may make protected disclosures and make clear that whistleblower who make disclosures to non-designated individuals will not be protected.  Three, the DOJ should develop an oversight mechanism to ensure better compliance with its requirements to keep whistleblowers updated on the status and timing of their retaliation complaints.  And four, the DOJ should take action to reduce the length of time it takes to review and adjudicate whistleblower complaints.

As the GAO seemed to stress, without some change in the current process, there is a real risk that future FBI whistleblowers will be discouraged from stepping forward.  Alternatively, they will join the ranks of Snowden, Manning, Sterling, etc. in finding the press the most conducive outlet to disclose their concerns of abuse or wrongdoing within the national intelligence community.

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