Federal Bureau of Investigation officials who want to blow the whistle on illegal or unethical practices they see within the famous law enforcement agency face multiple obstacles that often intimidate them into keeping quiet.
Because Justice Department rules limit how and to whom whistleblowers can report agency retaliation, a “significant portion” of complaints are dismissed before any attempt is made to address them, according to a new report by the Government Accountability Office.
“Dismissing these whistleblower retaliation complaints could deny whistleblowers access to recourse, could permit retaliatory activity to go uninvestigated, and may have a chilling effect on other potential whistleblowers,” the congressional watchdog office said.
The report’s findings sounded all too familiar to Michael German, an FBI agent for more than a decade who retired after his decision to report wrongdoing prompted reprisal from his supervisors. German is now a fellow at New York University’s Brennan Center for Justice.
“None of this surprised me,” German said of the report. “I’m glad GAO was able to document the treatment I experienced, which wasn’t abnormal, but was rather part of the process.”
German first raised concerns in 2002 when he learned part of a meeting between an international terrorist supporter and a domestic terrorist leader had been recorded illegally by a cooperating witness, violating wiretap laws.
German said his supervisor informed him “we were just going to pretend it did not happen” when he brought it to management’s attention.
“In 14 years as an FBI agent, I had never been asked to look the other way when I saw a violation of federal law,” German said in testimony before Congress in 2006. “I reported this violation to my superiors, and that is when my journey in the labyrinth began.”
Nearly every other executive agency allows its staff to disclose wrongdoing to their superiors, the media, Congress, the Office of Special Counsel, their agency inspectors general and “others,” but the FBI forces its whistleblowers to file complaints only to a set of designated offices, the report said.
FBI officials pointed to the “sensitive nature” of the information whistleblowers in the intelligence community handle as the reason why their agency is among the few that restrict the number of people eligible to receive retaliation complaints.
Although President Obama issued a policy directive in October 2012 pushing for intelligence community whistleblowers to be allowed to report allegations of retaliation to their supervisors, the president excluded the FBI from such protections and instead ordered the agency to submit a review of its policies.
The Justice Department did so a full year after the deadline for the report had passed.
German said a series of Justice offices passed around his complaint for two years while he was quietly removed from his assignments and barred from participating in new ones.
“My career was effectively ended,” he told the House Oversight Committee in 2006.
Justice’s inspector general ultimately substantiated German’s claims in a report it issued four years after the illegal recording was taken.
German attributed his rare success to his background as a lawyer, which enabled him to navigate the “maze” of whistleblower restrictions.
But many FBI agents may struggle to do the same, the accountability office said.
That’s because the Justice Department “has not consistently explained to whom an employee must report protected disclosures,” leaving whistleblowers unaware of proper procedures.
Tom Devine, legal director at the Government Accountability Project, criticized the fact that FBI whistleblowers can’t run reports of wrongdoing up the chain of command like the vast majority of other agency whistleblowers do.
“There’s no rational basis to deny protection for the free flow of information within an organization,” Devine said. “It violates every principle of sound management to deny protection for a communication between an employee and his or her supervisor.”
He argued the policy strips FBI whistleblowers of the rights most other officials who report wrongdoing enjoy.
“It creates an environment where whistleblowers have the freedom to tell their bosses what their bosses want to hear. They do not have the freedom to point out any problems that could be unpopular within the FBI bureaucracy,” Devine said.
Liz Hempowicz, policy associate at the Project on Government Oversight, said the rules for reporting retaliation are “relatively strange” compared to those of other agencies.
“It deters people from coming forward,” Hempowicz said.
German, Devine and Hempowicz each work with groups that aided the accountability office in its probe of FBI whistleblower challenges, which also discovered some whistleblowers may have to wait years before their complaints are resolved.
The congressional watchdog office discovered the FBI took up to four years to close 15 complaints and let three complaints languish for as much as 10 years among the sample of reports it reviewed.
“To say that’s an embarrassment to the FBI is being diplomatic to a fault,” Devine said.
The Justice Department inspector general is able to investigate retaliation complaints, but Michael Horowitz, the agency watchdog, stressed in comments on the report that his office has no control over the judgement process once its probes are complete and is thus unable to shorten such delays.
German said the prolonged waiting period for retaliation reports can serve as another deterrent to would-be whistleblowers.
“The long process is part of the design to suppress the complaint,” German said. “Many times, I thought, ‘Why should I keep beating my head against the door? I’m just going to drop this and go about my business.’ ”
