- The Washington Times - Tuesday, March 3, 2015

The FBI bluntly told a potential whistleblower that he could face retaliation by coming forward with concerns about political meddling inside a secret terrorism and counterintelligence surveillance program.

The warning came in an email from a bureau attorney that raises questions in Congress about the bureau’s ability to properly handle accusations of wrongdoing and protect those who come forward.

The Senate Judiciary Committee is planning to take testimony Wednesday about the FBI’s whistleblower protections, and an ongoing review of the bureau’s surveillance program has raised concerns for the panel’s chairman, Sen. Chuck Grassley, Iowa Republican.

“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.

The email, which was obtained and validated by The Washington Times, demonstrates what lawmakers and whistleblower activists have long suspected: The FBI repeatedly mishandles whistleblower cases, retaliating against employees who report waste, fraud and abuse, and fails to adequately investigate charges of misbehavior.

This whistleblower works in one of the FBI’s “G-teams,” which investigate counterterrorism cases, a topic on which the FBI is notoriously resistant to whistleblower complaints.

“The FBI has placed its bureaucratic culture ahead of protecting Americans from terrorism,” said Stephen Kohn, a lawyer and executive director of the National Whistleblowers Center. “They have allowed retaliatory animus and their cultural hostility toward whistleblowers to compromise the counterterrorism program. What these employees are reporting is shocking but not new.”

Last month, the Government Accountability Office found the FBI did little to offer its whistleblowers immunity and recommended the law enforcement agency issue guidance for those who wished to file complaints.

The GAO report found nearly 90 percent of FBI whistleblower claims were dismissed, and in only three cases from 2009 to 2013 did the Department of Justice side with the complainant.

It also took the bureaucracy as long as 10 years to resolve the complaints, even if verified, the report found.

“The FBI’s whistleblower process is broken,” Mr. Grassley said in a statement to The Times.

His committee will dig into such accusations Wednesday, demanding better protections and oversight for those brave enough to come forward.

“I am going to take a very serious look at the reforms proposed by GAO and the Justice Department at Wednesday’s Judiciary Committee hearing,” Mr. Grassley said.

The FBI is continually trying to improve its whistleblower protection process, but not all lawyers within the FBI are qualified to answer whistleblower protection questions or grant whistleblower status, according to those within the agency.

Only nine officials have been formally designated within the bureau to receive whistleblower complaints, the GAO report found. Any FBI employee who reports wrongdoing to a boss not anointed by the FBI to handle such complaints “is not protected, and the person does not have a right to recourse if the individual should experience retaliation as a result,” according to the GAO assessment.

“The FBI recognizes the important role played by whistleblowers in our law enforcement efforts, and we take very seriously our responsibilities with regard to FBI employees who make protected disclosures under the regulations,” FBI spokesman Christopher Allen said in response to the whistleblower’s accusations and emails.

“The FBI will not tolerate reprisals or intimidation by any FBI employee against those who make protected disclosures, nor tolerate attempts to prevent employees from making such disclosures,” the spokesman said.

Last year, the FBI proposed revamping its whistleblower rules to make it easier for those to come forward. It expanded the list of FBI officials to whom a whistleblower can report concerns, and it allows whistleblowers to call witnesses if their cases are heard and make them eligible for compensation if their case proves true.

Still, those revisions proved little solace for the member on the surveillance squad wanting to report misbehavior.

The whistleblower’s personnel file shows that for most of the last two decades he received high ratings and frequent praise for his surveillance work, including numerous awards and commendations as well as personal letters of gratitude directly from FBI directors when he worked in the Washington area. He received a rating of “excellent” in 2013 in his new division.

But after he questioned management in 2014 as to why his division was passed over for a new surveillance team it had earned in the rankings, the whistleblower was given a first-ever negative evaluation. “I’ve been retaliated against just for asking a fair question,” he told The Times.

His performance review, dated September 2014 — a month after he went to the FBI’s legal team seeking whistleblower advice — was downgraded to “minimally successful,” with the primary justification being he was spending too much time trying to call out mismanagement rather than concentrating on the job at hand.

“[Name of whistleblower] advised he had consulted with a law firm and was going to pursue legal action,” his superior wrote in his September review, obtained by The Times. “I advised him he was free to do so, but all research and related activity must be on his own time, and his time was to be spent leading the team.”

Just a year earlier, however, the whistleblower received an “excellent” performance review, even notching off a few “outstanding” marks — the highest rank — in some categories.

“[Name of whistleblower] demonstrated excellent skill in establishing priorities, schedules, and plans when given a new assignment or task, [he] quickly evaluated the priority and addressed appropriately,” the 2013 review said.

After the performance downgrade, and being told by an FBI lawyer his efforts to report agency waste, fraud and abuse may led to retaliation, the whistleblower sought whistleblower protection status and took his concerns to both the Justice Department’s inspector general and the Senate Judiciary Committee.

“FBI culture discourages any kind of official complaint,” said Michael German, a fellow with the Brennan Center for Justice’s Liberty and National Security Program and a former FBI agent. “You can whine and stomp your feet, and nobody is going to get too angry with you. But if you make an official complaint — if it has to go on paper, it exists, it’s real, and somebody has to deal with it.”

Mr. German left the FBI in 2004 after reporting deficiencies in the FBI’s counterterrorism operations to Congress — complaints of which he said ended his career at the bureau.

“You’d think the FBI would be interested in knowing how to do its job better, but they seemed more concerned about suppressing complaints, especially regarding terrorism cases,” he said.

The fact there’s so few people qualified to grant whistleblower protection has a chilling effect on those in the bureau who may want to report misdeeds but can’t go through their traditional chain of command, Mr. German said.

Forty-two percent of FBI agents surveyed by the inspector general in 2009 said they did not report all the employee misconduct they found on the job, and 18 percent said they never reported misconduct at all, which is troubling for a law enforcement agency, said Mr. German.

The reasons cited for not reporting included fears of retaliation, management not being supportive or worries no discipline action would be sought.

The counterterrorism units in which the threatened whistleblower works are known as G-teams, and are made up of covert tracking specialists who do not have the rank of special agents. With the possibility of 1,000 terrorist sleeper cells embedded within the U.S., the G-teams work with FBI agents to track down potential threats to the U.S. homeland.

“I just know what our team was and what it could be — I want to think the oath I took means something,” the whistleblower told The Times. “I consider some [of] our team’s actions an abuse of power and potentially a substantial and specific danger to public health and safety.”

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