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Liberty-Minded Attorneys Urge Congress to Strengthen Protections for FBI Whistleblowers Who Speak Out Against Government Waste and Misconduct

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Published on: March 26, 2016

During Sunshine Week, The Rutherford Institute joined with a broad spectrum of nearly 30 organizations and whistleblowers—including the Government Accountability Project, the Federal Law Enforcement Officers Association, the American Library Association and whistleblower Coleen Rowley (a retired FBI agent who disclosed the Bureau’s pre-9/11 lapses)—to urge Congress to strengthen protections for employees of the Federal Bureau of Investigation who speak out against government waste and misconduct.

In a letter to the ranking members of the Senate Judiciary Committee, the coalition pointed out that the Federal Bureau of Investigation Whistleblower Protection Enhancement Act (FBI WPEA) of 2015 (S. 2390) would, if enacted, 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 letter asserts that the lack of protections for whistleblowers within the FBI has imposed a culture of forced silence within the agency resulting in a continuous use of inaccurate lab results in federal prosecution, participation in mass surveillance of citizens, and other law enforcement failures and abuses.

“While the NSA has repeatedly come under fire for its domestic spying programs, the FBI has continued to operate its subversive and clearly unconstitutional programs with little significant oversight or push-back from the public, Congress or the courts,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “The FBI’s laundry list of crimes against the American people includes surveillance, disinformation, blackmail, entrapment, intimidation tactics, harassment and indoctrination, governmental overreach, abuse, misconduct, trespassing, enabling criminal activity, and damaging private property, and that’s just based on the little that we know. This legislation would hopefully shed some much-needed light on FBI programs that abuse the government’s powers and betray the public trust.”

Under the Federal Whistleblower Protection Act (WPA) of 1989, federal employees are generally protected from retaliation by superiors when they speak out about misconduct or waste that they become aware of within their agencies. However, the FBI was allowed to create its own system for whistleblower protection under the Civil Service Reform Act, which provides practically no protection for FBI whistleblowers. For example, employees who have revealed security breaches that contributed to lapses that led up to the 9/11 attaches and participation in warrantless surveillance of citizens have been silenced or removed. The FBI WPEA seeks to correct this problem and provide a credible free speech shield for FBI employees by, among other things, removing exemptions from whistleblower protection for disclosures to supervisors who report to Congress, allowing the Office of Inspector General (OIG) to seek the postponement of adverse actions against employees while the appeal process in proceeding, and expanding the coverage of protected disclosures to cover the full scope of relevant misconduct within the FBI.

The proposed legislation would also 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 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  adopting the Administrative Procedures Act’s requirements for judicial review.

Article reposted with permission from The Rutherford Institute

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