Hearing of the Senate Judiciary Committee - Whistleblower Retaliation at the FBI: Improving Protections and Oversight

Hearing

Since Congress passed the Whistleblower Protection Act in 1989, I have been saying that
whistleblowers are a very important part of Government operations. By exposing waste, fraud,
and abuse, they help keep Government honest and efficient. But despite all of our hard work
over 25 years ago, whistleblowers are still fired, demoted, discredited, and ostracized--all for
doing their patriotic duty and telling the truth.

Today, we are going to focus on whistleblower retaliation at the FBI. Why? The FBI's
whistleblower policies need special scrutiny because the legal protections for its employees are
weaker than at any other agency. The FBI is not subject to the Whistleblower Protection Act. It
has its own, special rules, and employees have no ability to appeal for an independent judgment
outside the Justice Department.

Back in 2012, President Obama issued a directive that established limited protections for
whistleblowers in the intelligence community. He required the Department of Justice to report
on how effective the FBI regulations actually are in protecting whistleblowers. The Department
submitted that report in April 2014--a year late.

In May 2013, I also asked the Government Accountability Office to look into the Department's
handling of FBI whistleblower complaints. That report was published last week, and GAO is
here to testify about the findings.

Unfortunately, the Justice Department failed to identify a witness from the Attorney General's or
Deputy Attorney General's office to talk about its report and recommendations for reform.
The GAO and the Justice Department reports have several important findings in common.
I'll mention just two of them now.

First, both reports recognize that, unlike every other federal agency, FBI employees are not
protected from retaliation when they report wrongdoing to their direct supervisors. This makes
me scratch my head. The FBI culture requires a deep respect for the chain of command. The
FBI encourages employees to report wrongdoing to their supervisors and within the chain of
command. But it does not tell them they will have no recourse if they experience retaliation for
doing so.

It is not surprising that the Department found a significant portion of FBI whistleblower
complaints have been rejected because the whistleblower blew the whistle to the "wrong
person." Two of our witnesses today tried to disclose waste or wrongdoing only to be told that
their whistleblowing was not protected under FBI rules. Mr. Kiper went to the Assistant
Director of the Training Division. That was the most senior person in his office at Quantico and
ranked higher at the FBI than a Special Agent in Charge. But that official is not listed in the FBI
whistleblower regulations. Similarly, Special Agent Mike German tried to blow the whistle to
the Special Agent in Charge as required under the rules. But, the FBI said it didn't count
because the initial contact went through the Assistant Special Agent in Charge. So, the FBI's socalled
whistleblower protections did not protect these whistleblowers simply because of a
technicality.

Second, both the GAO and the Justice Department reports confirmed that the Department
subjects FBI whistleblowers to delay after delay in these cases. It took the Department more than
ten years to finally uphold Jane Turner's retaliation claim, after she was fired for reporting that
FBI agents took "souvenirs" from Ground Zero after 9/11. It took more than nine years to
resolve Robert Kobus' claim of retaliation for reporting time and attendance fraud--just in time
for him to plan his retirement.

As we know, however, justice delayed is justice denied. And even after finally winning
vindication, was anyone ever held accountable for the retaliation against these whistleblowers?
Not that I'm aware of. If no one pays a price, then it will happen again.

In addition to the findings in these two reports, the FBI appears to be engaged in a pattern of
stonewalling the Inspector General--including in two investigations of FBI whistleblower
complaints. On February 3, the Inspector General reported to Congress that the FBI failed to
comply with its legal obligation to provide timely access to all records requested. The FBI said
that it needed to review the records before it decided whether to provide access to the Inspector
General. It took four months from the initial request for the FBI to cough up the documents.
That is not how the law is supposed to work.

It should not take months of negotiations and a notice to Congress for the Inspector General to
get access to documents in FBI whistleblower cases. That doesn't instill much confidence in the
Department's willingness or ability to protect whistleblowers. The FBI needs to commit to
cooperating with independent oversight of its treatment of whistleblowers.

To conclude, I am pleased that the Department has made recommendations in its 2014 report to
improve FBI whistleblower protections. Those recommendations are a start, but they do not go
far enough. Last week's report from the Government Accountability Office made that clear. If
every other law enforcement and intelligence agency can protect disclosures of waste, fraud, or
abuse to a direct supervisor, then why can't the FBI? Whistleblowers should not have to fear
retaliation for speaking up, and they should not have to wait a decade for relief. And, they
should not have to rely on Congress to see justice done.

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