[Congressional Record Volume 162, Number 178 (Friday, December 9, 2016)]
[Senate]
[Pages S7128-S7130]



 FEDERAL BUREAU OF INVESTIGATION WHISTLEBLOWER PROTECTION ENHANCEMENT 
                              ACT OF 2016

  The bill (H.R. 5790) to provide adequate protections for 
whistleblowers at the Federal Bureau of Investigation, was ordered to a 
third reading and was read the third time.
  Mr. GRASSLEY. Mr. President, for a long time, my friend Senator Leahy 
and I have worked hard to improve protections for FBI employees who 
report waste, fraud, and abuse.
  In March 2015, we held a hearing in the Judiciary Committee examining 
the FBI whistleblower program. That hearing addressed Department of 
Justice and Government Accountability Office reviews of the program. 
Both of those reviews found significant problems. The biggest problem 
is a longstanding loophole the Department created in its interpretation 
of the statutory protections for FBI whistleblowers. The Department's 
rules only protect FBI employees who experience reprisal after they 
report wrongdoing to a handful of offices or individuals. But those 
rules do not recognize that almost all whistleblowers first report 
wrongdoing to their immediate supervisor. Then they go up the chain of 
command. It is just human nature

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that, when you spot a problem at work, you tell your boss.
  FBI policy even encourages employees to report through their chain of 
command. Yet under the current rules, those same employees have no 
remedy if they suffer reprisal for disclosing waste, fraud, or abuse to 
their boss. According to the Government Accountability Office, in 5 
years, roughly one-third of FBI reprisal complaints were dismissed 
because the employee made the report to the ``wrong person'' in their 
management chain. It doesn't matter if the original disclosure 
uncovered actual wrongdoing. If the employee who reported it 
experiences retaliation, there is nothing they can do about it. Worse, 
FBI employees are the only employees in the Federal Government without 
these protections.
  Even whistleblowers in the intelligence community, thanks to the 
President's Policy Directive No. 19, are protected when they make 
disclosures to their supervisors. But the employees of the FBI have 
been left behind. The problem stems from an apparent compromise 
Congress reached in 1978 as part of the Civil Service Reform Act. There 
were some in the Congress at the time that wanted to exempt the FBI 
completely from important whistleblower protections.
  But this was 1978, only a few years after J. Edgar Hoover's reign 
over the FBI ended. It had become very clear in those years that the 
FBI was not immune to abuses of power. So the FBI got its own provision 
in the U.S. Code, separate from the protections that apply to most 
other nonmilitary Federal employees. The point was to provide 
protections similar to those available for other Federal employees.
  But, when the Department wrote its rules, it strictly limited the 
number of people FBI employees could report to. The Department said 
that it should not protect disclosures to supervisors because that 
would mean the same people who are prohibited from engaging in 
reprisal--supervisors--would receive disclosures. But that was not the 
intent. The whole point of the whistleblower protection laws is to 
protect the whistleblower from the person who is going to retaliate 
against them for disclosing waste, fraud, or abuse. That is typically 
the person who receives their disclosures--which is almost always a 
direct supervisor.
  But the Department's current rules leave those employees out in the 
cold. The result? As I said, roughly one-third of FBI employee reprisal 
complaints have been dismissed because they did what FBI policy tells 
them to do. They reported to their chain of command. This result is 
absurd and not what Congress intended.
  Congress wanted to encourage disclosures of wrongdoing so that 
problems could be more easily identified and then fixed. How can you 
fix problems if your employees do not have a logical, safe way to raise 
them? The answer is that you can't.
  Moreover, there are many other federal law enforcement agencies that 
function under the same whistleblower protections as non-law 
enforcement agencies. There is no logical reason for the FBI to have 
unique, separate, and inadequate standards for protecting whistleblower 
disclosures.
  So I and Senator Leahy drafted the FBI Whistleblower Protection 
Enhancement Act. The bill amends the FBI whistleblower statute to 
clarify, once and for all, that FBI whistleblowers are protected for 
disclosing waste, fraud, and abuse in their chain of command. This 
change was recommended by the Government Accountability Office in its 
2015 review.
  It is also supported by the Office of Special Counsel, the 
Department's Office of the Inspector General, and numerous good 
government and whistleblower advocacy groups. Even FBI Director James 
Comey and Attorney General Loretta Lynch have both testified before the 
Judiciary Committee that disclosures to supervisors should be 
protected. Now, we passed a version of this bill out of the Judiciary 
Committee unanimously. That version would have made additional 
meaningful changes to the FBI whistleblower program.
  The bill adopted by the Committee would also have addressed the other 
problems identified in the Justice Department report and the Government 
Accountability Office study.
  Most importantly, the bill that passed the Committee would have dealt 
with the lengthy delays in the Department's internal investigation and 
adjudication process. We also wanted to provide FBI whistleblowers with 
some relief when the inspector general finds in their favor. That way, 
FBI would be encouraged to settle cases instead of wasting taxpayer 
money defending reprisal. We wanted to require the Department to make 
its decisions on these cases publicly available. That way, the FBI 
would not be the only party in these cases with access to case 
precedent.
  We also wanted to be sure that FBI employees had opportunities for a 
fair and independent hearing and the ability to seek relief from a 
court of appeals. In that case, at least someone outside the Department 
would be able to hold the Department and the FBI accountable. But, 
behind the scenes, the FBI and the Justice Department objected to these 
provisions--although they never provided any official written comment 
on the bill. They claimed our reforms would jeopardize national 
security.
  But they never, ever said how. In nearly a year, they could not 
produce one single specific, coherent concern with the process that we 
developed. They had no response to the fact that classified information 
has not been an issue in FBI cases. Reprisal complaints generally can 
be considered without ever addressing classified information. The 
Department's own rules tell employees not to file classified 
information as part of the whistleblower program; and there has never 
been an FBI case that required the consideration of classified 
information.
  The FBI even initially objected to the provision recommended by GAO 
that would protect disclosures to supervisors. The FBI claimed that 
their employees' work was too sensitive. But that claim holds no water 
because employees in the intelligence community are protected for 
reporting wrongdoing to their supervisors.
  Now, we have waited nearly a year for constructive, good-faith 
feedback on our other reforms, but have received none. And 
unfortunately, we have not been able to reach a unanimous agreement on 
those issues this year or obtain time for debate and a vote on the 
floor. I am very disappointed. However, we still found a way forward on 
one key provision of this legislation. FBI employees have waited long 
enough to be protected for the same disclosures as everyone else in the 
Federal Government. Year after year, decade after decade, so many FBI 
employees have been retaliated against with no legal recourse.
  Well, that ends now. We can keep working together on other, much-
needed reforms, and we will. We are not finished with the great work 
left to do to improve FBI whistleblower protections. Other issues 
identified by the Government Accountability Office and by the Justice 
Department itself still need to be addressed.
  But with the passage of the amendment to our bill, FBI employees will 
finally have a remedy if they are retaliated against for reporting 
waste, fraud, and abuse to their supervisors--just like every other 
Federal employee in the vast American bureaucracy. I am thankful for 
the support and hard work of Senator Leahy on these issues for so many 
years and for working so closely with me on this legislation. I also am 
very thankful for Representative Chaffetz's leadership on this issue in 
the House. I know that he and Representatives Jeffries and Cummings 
have been great advocates for this change.
  Most of all, I am grateful for the FBI whistleblowers I have worked 
with over the years, folks like Fred Whitehurst, Jane Turner, Michael 
German, Robert Kobus, Darin Jones, and so many more. This would never 
have come to pass without your leadership, persistence, and personal 
sacrifice. It has been a long road, but it has been a privilege to 
travel it with you.
  We are not done yet. But now, we are one very big step closer.
  Mr. LEAHY. Mr. President, whistleblowers play an essential role in 
providing transparency and accountability in the Federal Government and 
exposing waste, fraud, and abuse. It is important that all government 
employees have safe and effective avenues to come forward when they 
have evidence of wrongdoing, and to encourage them

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to come forward they must be afforded protections from retaliation. 
Unfortunately, under current law, FBI employees who report waste or 
misconduct are not afforded the same whistleblower protections as all 
other Federal employees. That is why I worked closely with Senator 
Grassley to author the FBI Whistleblower Protection Enhancements Act of 
2016.
  The bill Senator Grassley and I drafted was a comprehensive package. 
Not only did it extend protections to FBI employees who report waste, 
fraud, or abuse to supervisors in their chain of command, but it also 
provided clear guidance on the investigation and adjudication of 
retaliation claims so that those same employees are not denied 
whistleblower protections without reason or without opportunity to 
appeal. Unfortunately, the bill we have passed today has been stripped 
of many of these worthy reforms. While I am pleased we will finally 
update the law to provide whistleblower protections for FBI employees 
who blow the whistle within their chain of command, I am disappointed 
that the bill we have before of contains only a fraction of the reform 
that Senator Grassley and I worked so hard to move through the Senate 
Judiciary Committee.
  This is a small but important step forward, but it is not sufficient. 
The Senate must work to pass comprehensive reform so that FBI employees 
are able to blow the whistle and not face repercussions for doing so. I 
hope we can revisit this important issue in the next Congress.

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