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Protecting Whistleblowers since 1977

GAP and Partners Shine Light on Senate FBI Whistleblower Bill

Shanna Devine, March 17, 2016

During Sunshine Week, the Government Accountability Project and nearly 30 organizations and whistleblowers put a spotlight on Senate bipartisan legislation to protect FBI whistleblowers.

Introduced by Senate Judiciary Committee Chairman Chuck Grassley and Ranking Member Leahy, the Federal Bureau of Investigation Whistleblower Protection Enhancement Act (FBI WPEA) of 2015 (S. 2390) would upgrade one of the least effective whistleblower policies in the U.S. Code and ensure that the nation’s top law enforcement agency is held accountable to the rule of law. The bill currently enjoys bipartisan support from six republicans and five democrats, most of whom are members of the Senate Whistleblower Protection Caucus.

On March 17th GAP and a broad spectrum of organizations – ranging from the Federal Law Enforcement Officers Association and the American Library Association to the Liberty Coalition and the Rutherford Institute – joined by whistleblowers such as Coleen Rowley, a retired FBI agent who disclosed the Bureau’s pre-9/11 lapses (and later became the 2002 Time “Person of the Year”), sent a letter underscoring the need for S.2390 –

The government's lack of accountability has been demonstrated in several cases including the revelations on the government's continuous use of inaccurate laboratory tests that continue to threaten the integrity of high stakes federal prosecutions; security breaches that were a contributing factor in failing to prevent 9/11; and participation in mass surveillance practices deemed unlawful by some federal courts and fundamentally redesigned under the USA Freedom Act.

Disturbingly, the system of rights to protect FBI whistleblowers, for all practical purposes, is the FBI's internal management issuing unpublished decisions that routinely rubber-stamp whatever retaliation is challenged. Under the FBI WPEA, mechanisms will be put in place to effectively protect public servants at the FBI from adverse employment actions for challenging abuses of power that betray the public trust. This pending legislation would transform the agency’s current whistleblower “rights” from a trap to a credible free speech shield …

Specifically, the bill would:

* Expand coverage to all relevant witnesses, including applicants for employment or new positions;

* Close loopholes that previously excluded protection for disclosures to supervisors, within the chain of command and to Congress;

* Grant authority for the Office of Inspector General to obtain temporary relief against retaliation through “stays” while an appeal proceeds;

* Establish parity for protected activity with the WPA to cover the full scope of relevant misconduct, including illegality, gross waste, gross mismanagement, or a substantial and specific danger to public health or safety;

* Increase transparency into how the Act works in practice, through publication of its track record ranging from the number of cases filed and completed, to the whistleblowers’ won-loss record;

* Commission independent review by the Government Accountability Office of the Act’s track record, to facilitate further improvements based on lessons learned; and

* Provide parity with the WPA in many critical respects, including by:

  • protecting FBI employees who refuse to violate the law;
  • affording employees the right to seek due process remedies if the Office of Inspector General (OIG) has not issued a ruling within 120 days;
  • establishing identical burdens of proof for all fact-finding under the Act;
  • conferring the right to independent due process before an Administrative Law Judge;
  • fostering due process rights generally by requiring the publication of decisions on whistleblower complaints; and 
  • adopt the Administrative Procedures Act’s requirements for judicial review.

In the words of Justice Louis Brandeis, “sunlight is said to be the best of disinfectants.” In honor of Sunlight Week in 2016, Congress should follow the lead of the Judiciary Committee and members of the Whistleblower Protection Caucus through swift passage of the FBI Whistleblower Protection Enhancement Act.

The complete letter can be viewed here

Signatories of the letter include:

Advocacy for Principled Action in Government

American-Arab Anti-Discrimination Committee (ADC)

American Civil Liberties Union

American Library Association

Bill of Rights Defense Committee and Defending Dissent Foundation

Campaign for Liberty

Coleen Rowley, retired FBI Agent and former Minneapolis Division Legal Counsel

Constitutional Alliance

Demand Progress

Elaine Mittleman, Department of the Treasury Whistleblower

Federal Law Enforcement Officer’s Association (FLEOA)

Fight for the Future

Government Accountability Project

Liberty Coalition

OpenTheGovernment.org

National Center for Transgender Equality

National Security Counselors

National Whistleblower Center

The Niskanen Center

Marvell D. Lavy, Department of Veterans Affairs Whistleblower

PEN American Center

Project On Government Oversight

Public Citizen

Restore The Fourth

The Rutherford Institute

Taxpayers Protections Alliance

Whistleblower Source Protection Program (WHISPeR)

World Privacy Forum

X-Lab