The DOJ Isn't Interested In Protecting FBI Whistleblowers From Retaliation

from the a.-ignore-b.-drag-feet dept

Unlike employees of other executive branch agencies, FBI employees do not have a process to seek corrective action if they experience retaliation based on a disclosure of wrongdoing to their supervisors or others in their chain of command who are not designated officials. This difference is due, in part, to DOJ’s decisions about how to implement the statute governing FBI whistleblowers. When issuing its regulations in 1999, DOJ officials did not include supervisors in the list of entities designated to receive protected disclosures, stating that Congress intended DOJ to limit the universe of recipients of protected disclosures, in part because of the sensitive information to which FBI employees have access.

In response to this requirement, DOJ reviewed its regulations and in an April 2014 report recommended adding more senior officials in FBI field offices to the list of designated entities, but did not recommend adding all supervisors. DOJ cited a number of reasons for this, including concerns about striking the right balance between the benefits of an expanded list and the additional resources and time needed to handle a possible increase in complaints. By dismissing retaliation complaints based on a disclosure made to an employee’s supervisor or someone in that person’s chain of command, DOJ leaves some FBI whistleblowers—such as the 17 complainants we identified—without protection from retaliation.

We concluded that, without clear information on how to make a protected disclosure, FBI whistleblowers may not be aware that, depending on how they report their allegation, they may not be able to seek corrective action if they experience retaliation.

[I]n 2002, former FBI agent Jane Turner filed a whistleblower complaint with DOJ alleging that her colleagues had stolen items from Ground Zero after the September 11, 2001, terrorist attacks. She was then given a “does not meet expectations” rating, placed on leave, and notified of proposed removal.

[The] DOJ ultimately found in her favor in 2013—over 10 years later.

The 4 complaints we reviewed in our 2015 report that met threshold regulatory requirements and that DOJ ultimately adjudicated on the merits, took up to 10.6 years to resolve, and DOJ did not provide parties with expected time frames for its decisions throughout these cases.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

You don't hear much about FBI whistleblowers. Many other agencies have had wrongdoing exposed by employees (and the government has often seen fit to slap the whistles out of their mouths with harsh prosecution ), but the FBI isn't one of them.ago, whistleblowers broke into the FBI and retrieved damning documents, but no one's really brokenof the FBI to do the same. In fact, the FBI would rather not talk about whistleblowingAn optimist might chalk this up to the FBI being a tightly-run organization that polices itself for malfeasance and wrongdoing. They'd be wrong , of course. Just within the past year, the FBI has twice thwarted its own oversight and may soon face budgetary constraints if it won't turn over the documents the DOJ's Inspector General is seeking.There's a reason no one blows the whistle at the FBI and this GAO report spells it out : unlike every other government agency, the DOJ's internal policies contain nothing to shield FBI whistleblowers from retaliation.To ostensibly protect means, methods and (presumably) the country itself, the DOJ eliminated several options whistleblowers could pursue when taking their complaints through official channels. A 2012 Presidential Policy Directive aimed at increasing whistleblower protections failed to move the needle.The DOJ is plainly uninterested in sheltering those who would point out FBI wrongdoing. It has set up a minefield most whistleblowers are unable to navigate.So, with no roadmap and extremely limited protections, whistleblowers whomanage to bring their complaints up through proper channels are often subjected to retaliatory actions for which they have no remedy.This retalitation was reported by Agent Turner to the DOJ, which then slowly ground its heavy wheels of so-called justice for more than a decade.Turner's case isn't an anomaly. The GAO found that, while the DOJ was often quick to dismiss retaliation complaints simply because the whistleblower failed to properly navigate its labyrinthine reporting restrictions, it was seldom interested in moving quickly on behalf of those who managed to luck into complete compliance.The DOJ blames this on "case complexity" and "staffing priorities." The latter excuse is likely the most honest. The DOJ is far more inclined to prosecute whistleblowers than protect whistleblowers. Blowing the whistle at the FBI means being subjected to vindictive actions with little to no recourse. The DOJdecide to take a whistleblower's case, but will do little, if anything, to escalate its response. In the meantime, whistleblowers are apparently supposed to take a number and wait things out in a hostile environment.Will this GAO report result in better protections? Highly doubtful, considering a directive issued by the President's office itself failed to produce any significant change. Even the agency's inside oversight -- the Office of the Inspector General -- is finding the DOJ completely unresponsive to its complaints about FBI stonewalling and obfuscation. It's highly unlikely the DOJ will handle lower-level whistleblower complaints with more speed or openness.The DOJ, along with the FBI, has successfully neutralized most forms of accountability. The OIG is openly ignored. FOIA requests are frequently greeted with massive amounts of withheld documents and redactions . When pressed, the nation's top law enforcement agency tends to wrap itself in a patchwork of undeclared wars (drugs, terrorism) and claims accountability will lead to an unsafe and unsecured country. Meanwhile, its own underling agencies go rogue while tangled, useless policies keep whistleblowers from ever opening their mouths.

Filed Under: doj, fbi, protection, whistleblowers