[Senate Hearing 114-829]
[From the U.S. Government Publishing Office]









                                                        S. Hrg. 114-829

                 WHISTLEBLOWER RETALIATION AT THE FBI:
                  IMPROVING PROTECTIONS AND OVERSIGHT

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 4, 2015

                               __________

                           Serial No. J-114-5

                               __________

         Printed for the use of the Committee on the Judiciary










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                 U.S. GOVERNMENT PUBLISHING OFFICE
                 
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                       COMMITTEE ON THE JUDICIARY

                  CHARLES E. GRASSLEY, Iowa, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont,       
JEFF SESSIONS, Alabama                   Ranking Member
LINDSEY O. GRAHAM, South Carolina    DIANNE FEINSTEIN, California
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
MICHAEL S. LEE, Utah                 RICHARD J. DURBIN, Illinois
TED CRUZ, Texas                      SHELDON WHITEHOUSE, Rhode Island
JEFF FLAKE, Arizona                  AMY KLOBUCHAR, Minnesota
DAVID VITTER, Louisiana              AL FRANKEN, Minnesota
DAVID PERDUE, Georgia                CHRISTOPHER A. COONS, Delaware
THOM TILLIS, North Carolina          RICHARD BLUMENTHAL, Connecticut
            Kolan L. Davis, Chief Counsel and Staff Director
      Kristine Lucius, Democratic Chief Counsel and Staff Director 
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
                            C O N T E N T S

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                       MARCH 4, 2015, 10:02 A.M.

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.     1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     9
    prepared statement...........................................    82

                               WITNESSES

Witness List.....................................................    35
German, Michael, Fellow, Liberty and National Security Program, 
  Brennan Center for Justice at New York University School of 
  Law, Former Special Agent, Federal Bureau of Investigation, New 
  York, New York.................................................     4
    prepared statement...........................................    36
Horowitz, Hon. Michael E., Inspector General, U.S. Department of 
  Justice, Washington, DC........................................    25
    prepared statement...........................................    44
Kiper, J. Richard, Ph.D., Special Agent, Federal Bureau of 
  Investigation, Miami, Florida..................................     7
    prepared statement...........................................    53
Kohn, Stephen M., Executive Director, National Whistleblowers 
  Center, Washington, DC.........................................     5
    prepared statement...........................................    56
Maurer, David C., Director, Homeland Security and Justice Issues, 
  U.S. Government Accountability Office, Washington, DC..........    22
    prepared statement...........................................    63
Perkins, Kevin L., Associate Deputy Director, Federal Bureau of 
  Investigation, Washington, DC..................................    23
    prepared statement...........................................    75

                               QUESTIONS

Questions submitted to Michael German by Senator Grassley........    83
Questions submitted to Hon. Michael E. Horowitz by:
    Senator Grassley.............................................    84
    Senator Leahy................................................    91
Questions submitted to Stephen M. Kohn by Senator Grassley.......    86
Questions submitted to Kevin L. Perkins by Senator Grassley......    87

                                ANSWERS

Responses of Michael German to questions submitted by Senator 
  Grassley.......................................................    93
Responses of Hon. Michael E. Horowitz to questions submitted by:
    Senator Grassley.............................................    96
    Senator Leahy................................................   100
Responses of Stephen M. Kohn to questions submitted by Senator 
  Grassley.......................................................   106
Responses of Kevin L. Perkins to questions submitted by Senator 
  Grassley.......................................................   108

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

Federal Bureau of Investigation, Office of Integrity and 
  Compliance, subject: ``Whistleblower protection,'' message to 
  FBI Whistleblower, August 4, 2014, email--redacted.............   196
Riddell, Kelly, ``FBI surveillance teams frustrated by nepotism 
  and internal politics. Whistleblower: War on terror hampered by 
  culture of favoritism,'' The Washington Times, March 2, 2015, 
  article........................................................   219
United States Department of Justice, correspondence from Hon. 
  Glenn A. Fine, Inspector General, to Hon. Arlen Specter, a U.S. 
  Senator from the State of Pennsylvania and Chairman, Hon. 
  Patrick J. Leahy, a U.S. Senator from the State of Vermont and 
  Ranking Member, and Hon. Charles E. Grassley, a U.S. Senator 
  from the State of Iowa and Member, U.S. Senate Committee on the 
  Judiciary, March 8, 2006, letter...............................   129
United States Department of Justice, correspondence from Hon. 
  Michael E. Horowitz, Inspector General, to Hon. Charles E. 
  Grassley, a U.S. Senator from the State of Iowa and Chairman, 
  U.S. Senate Committee on the Judiciary, February 3, 2015, 
  letter.........................................................   145
United States Department of Justice, correspondence from Hon. 
  Michael E. Horowitz, Inspector General, to Hon. Charles E. 
  Grassley, a U.S. Senator from the State of Iowa and Chairman, 
  U.S. Senate Committee on the Judiciary, February 19, 2015, 
  letter.........................................................   149
United States Department of Justice, correspondence from Hon. 
  Michael E. Horowitz, Inspector General, to Hon. Charles E. 
  Grassley, a U.S. Senator from the State of Iowa and Chairman, 
  U.S. Senate Committee on the Judiciary, February 25, 2015, 
  letter.........................................................   153
United States Department of Justice, correspondence from Stephen 
  D. Kelly, Assistant Director, Office of Congressional Affairs, 
  Federal Bureau of Investigation, to Hon. Charles E. Grassley, a 
  U.S. Senator from the State of Iowa and Chairman, U.S. Senate 
  Committee on the Judiciary, March 2, 2015, letter..............   162
United States Department of Justice, correspondence from Stephen 
  D. Kelly, Assistant Director, Office of Congressional Affairs, 
  Federal Bureau of Investigation, to Hon. Charles E. Grassley, a 
  U.S. Senator from the State of Iowa and Chairman, U.S. Senate 
  Committee on the Judiciary, March 3, 2015, letter..............   164
United States Department of Justice, ``Department of Justice 
  Report on Regulations Protecting FBI Whistleblowers,'' April 
  2014, report...................................................   169
United States Senate Committee on the Judiciary, correspondence 
  from Hon. Arlen Specter, a U.S. Senator from the State of 
  Pennsylvania and Chairman, Hon. Patrick J. Leahy, a U.S. 
  Senator from the State of Vermont and Ranking Member, and Hon. 
  Charles E. Grassley, a U.S. Senator from the State of Iowa and 
  Member, to Hon. Glenn A. Fine, Inspector General, U.S. 
  Department of Justice, February 3, 2006, letter................   122
United States Senate Committee on the Judiciary, correspondence 
  from Hon. Charles E. Grassley, a U.S. Senator from the State of 
  Iowa and Ranking Member, to Hon. James B. Comey, Jr., Director, 
  Federal Bureau of Investigation, July 17, 2014, letter.........   142
United States Senate Committee on the Judiciary, correspondence 
  from Hon. Charles E. Grassley, a U.S. Senator from the State of 
  Iowa and Chairman, to Hon. James B. Comey, Jr., Director, 
  Federal Bureau of Investigation, February 26, 2015, letter.....   157
United States Senate Committee on the Judiciary, correspondence 
  from Hon. Charles E. Grassley, a U.S. Senator from the State of 
  Iowa and Ranking Member, to Hon. Michael E. Horowitz, Inspector 
  General, U.S. Department of Justice, May 21, 2014, letter--
  redacted.......................................................   205
United States Senate Committee on the Judiciary, correspondence 
  from Hon. Charles E. Grassley, a U.S. Senator from the State of 
  Iowa and Ranking Member, to Hon. James B. Comey, Jr., Director, 
  Federal Bureau of Investigation, September 26, 2014, letter....   206
United States Senate Committee on the Judiciary, ``FBI Policy 
  Directive 0773D, Loss of Effectiveness Transfers, 
  Observations,'' notes..........................................   215
United States Senate Committee on the Judiciary, ``Response to 
  FBI Letter of March 2, 2015,'' notes...........................   212
Washington Times, The, ``FBI email warns whistleblower of 
  retaliation if surveillance program concerns reported,'' March 
  4, 2015, article...............................................   198

 
                 WHISTLEBLOWER RETALIATION AT THE FBI: 
                  IMPROVING PROTECTIONS AND OVERSIGHT

                              ----------                              


                       WEDNESDAY, MARCH 4, 2015,

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:02 a.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Charles E. 
Grassley, Chairman of the Committee, presiding.
    Present: Senators Grassley, Tillis, Leahy, Whitehouse, 
Klobuchar, Franken, and Blumenthal.

         OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
             A U.S. SENATOR FROM THE STATE OF IOWA

    Chairman Grassley. The Committee will come to order. Since 
Congress passed the Whistleblower Protection Act in 1989, I 
have been saying that whistleblowers are a very important part 
of Government operations by exposing waste, fraud and abuse, to 
help keep Government honest and efficient.
    But despite all of our hard work over 25 years, 
whistleblowers are still fired, still demoted, still 
discredited, and oftentimes ostracized, all for doing what I 
consider a very patriotic duty, and that is telling the truth. 
But sometimes the truth hurts.
    Today we are going to focus on whistleblower retaliation at 
the White House. And you may ask why. The FBI's whistleblower 
policies need special scrutiny because the legal protections 
for its employees are weaker than at any other agency, and 
there is a reason gave them to be different. I am not sure I 
agreed with it at the time, but it is probably necessary to get 
a Whistleblower Protection Act passed for the rest of 
Government. That is because the FBI is not subject to the 
Whistleblower Protection Act.
    So as the law allowed, it has its own rules, very special 
rules, and, consequently, employees have no ability to appeal 
for an independent judgment outside of the Justice Department.
    Back in 2012, President Obama issued a directive that 
established limited protection for whistleblowers in the 
intelligence community. He required the Department of Justice 
to report on how effective the FBI regulations actually are in 
protecting whistleblowers.
    The Department submitted that report April 2014, a year 
late. In May 2013, I also asked the Government Accountability 
Office to look into the Department's handling of FBI 
whistleblower complaints. That report was published last week 
and the Government Accountability Office is here to testify 
about those findings.
    Now, unfortunately, the Justice Department failed to 
identify a witness from the Attorney General's or Deputy 
Attorney General's office to talk about its report and the 
recommendations for reform.
    The GAO and the Justice Department reports have several 
important findings in common. I will mention just two of them 
now.
    First, both reports recognize that unlike every other 
Federal agency, the FBI employees are not protected from 
retaliation when they report wrongdoing to their direct 
supervisors. This ought to be cause for anybody to scratch 
their head.
    The FBI culture requires a deep respect for the chain of 
command. The FBI encourages employees to report wrongdoing to 
their supervisors within the chain of command, but it does not 
tell those same people they have no recourse if they experience 
retaliation for doing so.
    It is not surprising then that the Department found a 
significant portion of FBI whistleblower complaints have been 
rejected because the whistleblower blew the whistle to the, 
quote-unquote, ``wrong person.''
    Two of our witnesses today tried to disclose waste or 
wrongdoing only to be told that their whistleblowing was not 
protected under FBI rules.
    Mr. Kiper went to the assistant director of the Training 
Division. That was the most senior person in his office at 
Quantico and actually ranked higher at the FBI than the special 
agent in charge. But that official is not listed in the FBI 
whistleblower regulation.
    Similarly, Special Agent Mike German tried to blow the 
whistle to a special agent in charge, as required under the 
rules, but the FBI said that it did not count because the 
initial contact went through the assistant special agent in 
charge.
    So the FBI's so-called whistleblower protections did not 
protect these whistleblowers simply because of a technicality. 
That is my first point.
    Now, the second point, both the GAO and the Justice 
Department reports confirmed that the Department subjects FBI 
whistleblowers to delay after delay in these cases. For 
instance, it took the Department more than 10 years to finally 
uphold Jane Turner's retaliation claim after she was fired for 
reporting that FBI agents took souvenirs from the Ground Zero 
after 9/11.
    It took more than 9 years to resolve another case, that of 
Robert Kobus. His claim of retaliation for reporting time and 
attendance fraud, just in time for him to plan his retirement.
    As we know, however, justice delayed is justice denied. And 
even after finally winning vindication was anyone ever held 
accountable for the retaliation against these whistleblowers. I 
am not aware of any accountability.
    If no one pays a price, then it will happen again.
    In addition to the findings of these two reports, the FBI 
appears to be engaged in a pattern of stonewalling the 
Inspector General, including two investigations of FBI 
whistleblower complaints.
    On February 3, the Inspector General reported to Congress 
that the FBI failed to comply with its legal obligation to 
provide timely access to all records requested. The FBI said 
that it needed to review the records before it decided whether 
to provide access to the IG.
    Now, it took 4 months from the initial request for the FBI 
to cough up the documents. That is not how the law is supposed 
to work. It should not take months of negotiation and it should 
not taking notice to Congress for the Inspector General to get 
access to documents in FBI whistleblower cases.
    That does not instill then much confidence in the 
Department's willingness or its ability to protect 
whistleblowers. The FBI needs to commit to cooperate with the 
independent oversight of its treatment of whistleblowers.
    Now, I conclude with this. I am pleased that the Department 
has made recommendations in its 2014 report to improve FBI 
whistleblower protections. Those recommendations are a start, 
but they do not go far enough.
    Last week's report from the Government Accountability 
Office made that very clear. If every other law enforcement and 
intelligence agency can protect disclosure of waste, fraud or 
abuse to a direct supervisor, then why cannot the FBI? 
Whistleblowers should not have to fear retaliation for speaking 
up and they should not have to wait a decade for relief, and 
they should not have to apply to Congress to see justice done.
    I will proceed with the introduction of the first panel and 
then if Senator Leahy comes, I am going to interrupt and let 
him make his statement.
    Steve Kohn has represented FBI whistleblowers for decades, 
including Dr. Frederick Whitehurst, a former supervisor special 
agent, who began blowing the whistle on the FBI crime lab way 
back in 1989. Mr. Kohn also represents former Special Agent 
Jane Turner, Supervisory Special Agent Bassem Youssef, and non-
agent, FBI employee Robert Kobus. Each of these cases dragged 
on for years.
    Richard Kiper currently works in the Miami field office, 
but previously worked in the training division, formerly known 
as the Academy in Quantico. He reported mismanagement to the 
highest ranking official in the training division.
    His reports included allegations that the FBI misled OMB, 
Office of Management and Budget. However, the FBI regulations 
did not protect his disclosure because the training division is 
technically not a field office.
    Following his disclosure, Mr. Kiper was demoted from a GS-
15 position to a GS-13 through the loss of effectiveness order. 
Then Mr. German is a fellow with the Brennan Center for Justice 
at New York University School of Law and a former FBI special 
agent.
    Mr. German spent 16 years as an undercover agent at the 
Bureau, risking his life to infiltrate White supremacists and 
neo-Nazi hate groups across the United States. Some of these 
groups had ties to foreign terrorist groups.
    When he reported that a portion of a meeting between two 
such groups had been illegally recorded by mistake, he was 
removed from investigation, targeted for retaliation. So much 
for putting his life in danger.
    Now, unless some lawyer tells me otherwise, you just stay 
seated, but I am going to ask you to swear.
    [Witnesses are sworn in.]
    Chairman Grassley. Each of them nodded their heads.
    I think my staff probably--did we tell them 5 minutes for 
testimony? So will you kind of stay to that 5 minutes. I do not 
care if it is 5 minutes and 30 seconds or even 6 minutes, but 
after 6 minutes, it kind of drags on.
    Mr. German, would you start, please?

   STATEMENT OF MICHAEL GERMAN, FELLOW, LIBERTY AND NATIONAL 
   SECURITY PROGRAM, BRENNAN CENTER FOR JUSTICE AT NEW YORK 
UNIVERSITY SCHOOL OF LAW, FORMER SPECIAL AGENT, FEDERAL BUREAU 
              OF INVESTIGATION, NEW YORK, NEW YORK

    Mr. German. Thank you, Chairman Grassley, for inviting me 
to testify about improving protections for FBI whistleblowers. 
FBI and Justice Department officials pay lip service to 
protecting whistleblowers, but the byzantine procedures they 
employ all but ensure that FBI employees reporting misconduct 
will not be protected from retaliation.
    New reports by the Justice Department and the Government 
Accountability Office make clear that the current system is not 
working, but the incremental improvements the Justice 
Department proposes are inadequate and would keep FBI employees 
trapped in a system with substandard protections.
    A legislative solution is necessary to finally give FBI 
employees the protection they deserve.
    At his nomination hearing, FBI Director James Comey called 
whistleblowers critical to a functioning democracy. He argued 
that, quote, ``Folks have to feel free to raise their concerns 
and if they are not addressed up their chain of command, to 
take them to the appropriate place,'' end quote.
    This sounds good, but any agents who followed his advice 
would not be protected under the Justice Department regulation 
governing FBI whistleblowers.
    These regulations require FBI employees to bypass the chain 
of command and report misconduct only to a handful of high 
level officials in order to receive protection.
    In the field, the lowest ranking official authorized to 
receive protected disclosures is the special agent in charge.
    I cannot overstate how difficult it would be for an agent 
to break protocol and report directly to an SAC. I served as an 
FBI agent for 16 years, was assigned to three different field 
offices, and worked undercover investigations in at least three 
more. In all that time, I did not have more than 10 personal 
audiences with an SAC, none of which occurred at my request.
    If I had asked for a meeting with the SAC, he or she would 
immediately call the assistant special agent in charge to find 
out what I wanted, who would then call my supervisor with the 
same question, who would then call me to ask me what the heck I 
thought I was doing.
    My experience as an FBI whistleblower demonstrates how 
difficult it is to follow these procedures and how illusory the 
protections really are.
    In 2002, I was assigned to the Atlanta Division, but was 
asked to work undercover in a Tampa counterterrorism 
investigation. As the operation began, I learned that the 
informant in the case had illegally recorded a portion of a 
conversation between two subjects earlier in the investigation, 
imperiling any possible prosecution.
    When the Tampa supervisor refused to address the matter and 
told me to pretend it did not happen, I felt duty bound to 
report it. Luckily, I researched the proper procedure and 
realized I should make the report to the Tampa SAC. But I also 
knew that failing to provide notice to my chain of command in 
Atlanta would cause problems for them, which would ultimately 
cause problems for me.
    So I called my supervisor to tell him I was going to call 
my assistant special agent in charge to him I was going to call 
the Tampa SAC to make a whistleblower report.
    When I talked to my ASAC, however, he asked me to write the 
complaint in an email to him, which he would forward to the 
Tampa SAC. This seemed reasonable, especially because I had 
little confidence the Tampa SAC would take my call.
    The FBI would later argue, however, that by transmitting my 
through my ASAC, I forfeited my right to be protected from the 
reprisals I faced for sending that email.
    My experience is not unusual. The GAO and Justice 
Department reviews confirm that a significant portion of 
retaliation complaints are closed because the whistleblower 
reported to the wrong FBI official.
    The Justice Department argues that it does not need to 
amend its regulations to protect whistleblower reporting to 
direct supervisors because it has no evidence that FBI 
employees are inhibited from such reporting.
    But I provided the review group a 2009 Inspector General 
survey that showed 42 percent of FBI agents said they did not 
report all the misconduct they saw on the job; 18 percent said 
they had never reported such wrongdoing. Reasons for not 
reporting included fear or retaliation 16 percent; a belief 
that misconduct would not be punished 14 percent; and, a lack 
of management support for such reporting 13 percent. Tellingly, 
85 percent said if they did report wrongdoing, it would be to 
their direct supervisor.
    FBI employees often take great risks to protect our 
security. We should protect them when they report waste, fraud 
and abuse that undermines their important missions.
    Compelling the Justice Department to protect whistleblower 
disclosures to supervisors is one of several potential reforms 
I recommend in my written testimony, which I will be happy to 
discuss in response to questions.
    Thanks again for holding this important hearing.
    [The prepared statement of Mr. German appears as a 
submission for the record.]
    Chairman Grassley. Thank you very much.
    Senator Leahy said that we will finish the panel, then he 
can make his opening statement. I will let you ask questions 
first.
    Mr. Kohn?

 STEPHEN M. KOHN, EXECUTIVE DIRECTOR, NATIONAL WHISTLEBLOWERS 
                     CENTER, WASHINGTON, DC

    Mr. Kohn. Thank you, Senator Grassley, Senator Leahy, for 
holding this hearing.
    The Department of Justice's program for protecting FBI 
whistleblowers is broken, in large part due to the devastating 
impact caused by prolonged delays in deciding cases.
    I want to focus my remarks on three heroic Americans who 
faced severe retaliation simply for reporting serious 
misconduct. Robert Kobus worked at the FBI New York field 
office for 34 years as an FBI operations manager. His 
commitment to law enforcement is both professional and 
profoundly personal.
    His sister was murdered by al Qaeda on September 11, 2001. 
Mr. Kobus reported budget and time card fraud. It was a simple 
case, fully documented, but the retaliation was swift, stripped 
of his duties and literally isolated in a vacant floor among 
130 empty desks, and we have the pictures.
    The Inspector General's investigation found retaliation, 
ordered corrective action. Instead of fixing the problem, it 
went on for 9 years, his case. The FBI spent untold taxpayers' 
money frivolously fighting Mr. Kobus.
    In the end, Kobus won, but ask him about his victory and 
the 9-year process he lived through. The FBI's uncontrolled 
bullying tactics which went on continuously while the DOJ 
reviewed his very simple case ruined a very promising career.
    Jane Turner's case is even worse. She was one of the first 
female agents in the FBI and had a stellar career. After 
disclosing to the Inspector General that property of victims of 
9/11 attacks at the crime scene had been taken illegally by 
agents, she was swiftly retaliated against, subject to brutal 
retaliation, in the FBI's words, because she embarrassed the 
Bureau.
    Eventually she was--she filed her claim, but while her 
claim was pending, with no relief, they gave her a notice of 
proposed removal and she was forced to resign.
    After she passed mandatory retirement age, the Department 
of Justice procedures finally ruled, 11 years later, and found 
the notice of proposed removal improper. But what did that do 
for her? She already passed mandatory retirement age. Her 
career was already ruined.
    Finally, there is Supervisory Special Agent Bassem Youssef. 
Before blowing the whistle, he received the highly prestigious 
DCI award from the director of Central Intelligence for his 
spectacular contributions against terrorism.
    He also served as the FBI's first legal attache in Riyadh, 
Saudi Arabia and in the 1990s he successfully infiltrated the 
organization we now know as al Qaeda and developed a direct 
source with contacts with the blind sheik and Osama bin Laden.
    His efforts actually prevented real terrorist attacks. He 
blew the whistle and his case has been pending for 9 years, no 
end in sight.
    The OPR, they investigated it and within about 6 months 
found retaliation and ordered him back to work in 
counterterrorism operations, using his language and his skills. 
But for 9 years the case is pending.
    And Mr. Youssef, regardless of the outcome of that case, 
will never win because he retired in September 2014, about 1 
year to mandatory date. So he will never be assigned to 
counterterrorism again, and the United States lost his services 
forever and that is a major loss for all Americans and a major 
loss in our counterterrorism efforts.
    The prolonged delays in processing the whistleblower claims 
sends a clear message to all FBI agents: Do not blow the 
whistle; if you do, the messenger is shot. The law needs to be 
fixed and it is up to Congress to do that job.
    Thank you.
    [The prepared statement of Mr. Kohn appears as a submission 
for the record.]
    Chairman Grassley. Thank you, Mr. Kohn.
    Mr. Kiper?

 STATEMENT OF J. RICHARD KIPER, Ph.D., SPECIAL AGENT, FEDERAL 
            BUREAU OF INVESTIGATION, MIAMI, FLORIDA

    Mr. Kiper. Thank you, Chairman Grassley, Senator Leahy and 
other Members of the Committee, for holding this important 
hearing on whistleblower retaliation at the FBI.
    As a victim of unjustified adverse actions, I am grateful 
for the opportunity to share my experience with you. Like 
thousands of other FBI employees, I work hard at my job every 
day. I have been rewarded for my efforts over the past 15 years 
not only in terms of statistical accomplishments, but I have 
also been honored with several incentive and recognition 
awards, including outstanding law enforcement of the year in 
the southern district of Florida.
    I take seriously my responsibility to keep the American 
people safe, but I also recognize the importance of effectively 
managing the resources they have entrusted to me. Whether it is 
helping to define the requirements for the FBI's new case 
management system or creating a data base to manage human 
sources in Miami, I have always raised my hand when I believed 
FBI processes and products needed to be improved.
    However, I never imagined that my desire to promote 
excellence would be used against me. In 2011, I accepted a 
position as chief of the investigative training unit at the FBI 
Academy. This was a position for which I was especially well 
suited due to my investigative experience in the FBI as well as 
my four degrees in education.
    At the FBI Academy, I continued to push for ethical and 
efficient solutions to problems and I brought problems to the 
attention of the highest ranking leaders at the FBI Academy.
    Specifically, I brought to light the following issues: the 
training division's intentional misleading of the Office of 
Management and Budget regarding the training of new agents and 
new analysts; training division's wasteful decision to install 
SCION, the FBI's top secret computer system, in the 
intelligence and investigative training center building; and, 
training division's mismanagement of the October 2011 
realignment as it lacked any business process definition or 
sound instructional design principles.
    When I raised these issues with the training division 
leadership, I did not retain an attorney or study the 
whistleblower statute to ensure I was making a disclosure of 
wrongdoing to a, quote-unquote, ``appropriate recipient.'' I 
was just trying to do the right thing, like I have always done.
    I have made these disclosures to the highest ranking 
officials at my work site, hoping these executives would, at 
least, consider making positive changes. Instead, I was removed 
and demoted two GS levels.
    The tool used to retaliate against me was the FBI's loss of 
effectiveness, or LOE, process. From April 22 to May 3, 2013, 
an FBI inspection team traveled to the FBI Academy to conduct 
an inspection. On the last day of inspection, training division 
executives told me I was being removed from my position as a 
result of an LOE finding.
    The news was shocking to me, as I had earned outstanding 
evaluations from my supervisors, enjoyed nearly perfect climate 
survey results from my employees, and received four awards 
during my tenure at the training division.
    At the time I was told of my removal, the training division 
executives refused to tell me why I had received the LOE 
finding or why they had agreed with it. Five weeks after I was 
told of my removal, they finally provided to me the written 
justification for my LOE finding.
    Although the inspectors found absolutely nothing wrong with 
my unit, they documented several accusations against me that 
were demonstrably false.
    As Senator Grassley effectively articulated in a letter to 
Director Comey on September 26, 2014, the justification for my 
removal was, quote, ``contradicted by the FBI's own 
documents,'' unquote.
    It is worth noting that if I had been accused of actual 
wrongdoing, say, driving under the influence, vandalism or 
soliciting prostitutes, I would have been given a chance to 
challenge the investigation and appeal the adverse action.
    However, with the FBI's LOE process, the accused have no 
avenue to appeal the findings, no chance to prevent the 
outcome, no recourse whatsoever.
    In light of the irregular inspection activities and false 
statements used to justify my LOE finding, the only explanation 
for my removal and demotion is that of retaliation for having 
made the disclosures I mentioned earlier.
    While no one in the FBI has disputed the fact that my LOE 
was based on false information, what they are contesting is 
that my whistleblower disclosures were not protected because 
they were not made to a, quote-unquote, ``qualifying 
individual'' listed in 28 CFR 27.1(a).
    While conceding that my disclosures were made to the 
highest ranking official at the FBI Academy, the FBI insists 
the disclosures were not made to the, quote, ``highest ranking 
official in any FBI office,'' unquote, as the statute requires.
    According to this logic, the adverse actions taken against 
me could not have been taken in retaliation for my disclosures 
because my disclosures were not protected under the statute.
    I have no doubt that my removal and demotion was 
retaliation for having made whistleblower disclosures. I made 
these disclosures in good faith and I made them to the highest 
ranking officials at the FBI Academy, who outrank the highest 
ranking official in any FBI field office.
    Thank you for considering the expansion of the FBI 
whistleblower protections so that the FBI is held accountable 
for its actions and held to the standard of its motto--
fidelity, bravery and integrity.
    Thank you again for holding this hearing and I would be 
happy to answer any questions you may have.
    [The prepared statement of Mr. Kiper appears as a 
submission for the record.]
    Chairman Grassley. Thank you, Mr. Kiper.
    Now, Senator Leahy both for his opening statement and you 
can ask questions first.

          OPENING STATEMENT OF HON. PATRICK J. LEAHY,
            A U.S. SENATOR FROM THE STATE OF VERMONT

    Senator Leahy. Thank you, Mr. Chairman. I want to thank you 
for holding this hearing. You have had a long and well 
documented interest in whistleblowers and I have been happy and 
proud to work together with you on a lot of these issues.
    We have a very large Government and, for the most part, it 
works very well. But when it does not, those of us who have to 
make decisions on budget and everything else may not know about 
it and we have to rely a lot of times on those who are in the 
Government to know what is going on.
    A lot of times, they are whistleblowers and I their role is 
essential in providing accountability. I do not care if it is a 
Democratic or Republican administration, we want that kind of 
accountability, one of the same reasons why I push for an 
updated FOIA, Freedom of Information Act.
    But it is also if you have an employee who knows about 
wrongdoing, I think that they have to have real avenues where 
they can come forward and tell about it and not be punished for 
actually letting taxpayers and everybody else know what is 
going wrong. But they have to be protected from retaliation.
    Now, Mr. German and I have talked before on this and I know 
the retaliation that he has gone through. I know it all too 
well. Frankly, I do not know how you even keep your sanity from 
what you went through. You had a distinguished career at the 
FBI, but--it was 10 years ago, more than a decade ago, you were 
forced to end that.
    Mr. Chairman, he chose to do this after making, as he said 
in his testimony, a whistleblower disclosure at the FBI that 
went nowhere. Instead of the Bureau acting on the problems he 
pointed out, the same kind of insularity and mismanagement 
identified by the 9/11 Commission as a major failing, he was 
marginalized and mistreated.
    You think they would have learned. We know, after the fact, 
at least, we could have prevented 9/11 if people had corrected 
some of these failings.
    Look at the effective counterterrorism work you did to get 
criminal convictions against terrorists. That is just brushed 
aside and you would think that the FBI would be applauding 
that.
    We have had two recent Government reports, one by the 
Department of Justice, another by the Government Accountability 
Office that highlight the obstacles that remain for FBI 
employees.
    Our country, our Government has got to do better.
    Let me ask you this, Mr. German. Do you believe it is 
necessary for the FBI to have a separate whistleblower regime 
simply because the Bureau handles national security and 
intelligence information?
    Mr. German. I do not think it is necessary that they have a 
separate one and to the extent they can make an argument that 
they do, there are only a few FBI employees who would ever need 
to be part of the process. The vast majority of FBI employees 
do not have regular access or work in national security issues. 
They work on regular law enforcement issues, and those could 
easily be put into the Office of Special Counsel and MSPB 
system without risking any security issues, just like many 
other Federal law enforcement agencies are and just like many 
Department of Homeland Security employees are.
    Senator Leahy. The reason I ask that, I look at what 
happened 9/11 and hindsight is always 20/20, but you look at 
the mistakes made where people were not listened to, where dots 
were not connected.
    I recall going down to the FBI a day or so after 9/11 and 
they were working very hard getting--somebody would call in 
with some information from some part of the country and 
somebody would write it down and hand it to somebody else who 
would rewrite it, hand it to somebody else who would put it in 
a pile.
    I am looking at this and sort of had visions of Dickens' 
time and they were going to fly some photographs out, getting 
airplanes to fly some photographs. I said why do you not just 
email them. We do not have that facility. I said, well, my 12-
year-old neighbor can do it for you, if you want. But I did 
know that a number--the FBI had been urged to update this.
    If you have--and I realize this sounds like I am answering 
my own question--but if you have strong whistleblower 
protection, do you believe that would also give us better 
national security, not less national security?
    Mr. German. Absolutely. I think it would improve security 
in a number of different ways. Number one, you would correct 
problems very quickly that were identified, but number two, it 
would give FBI employees and other intelligence employees less 
incentive to go around the system and leak to the press.
    And if we can correct these problems internally, there 
would be less need to go outside the system.
    Senator Leahy. The Department of Justice has recommended 
expanding the number of persons who whom a protected disclosure 
could be made. Would that limited expansion be enough to 
protect whistleblowers?
    Mr. German. I do not believe so. As the Inspector General 
survey suggested, 85 percent of FBI employees said they would 
report to their direct supervisor. There is no reason why that 
should not be protected when the vast majority of complaints 
are going to be made through that system, and it seems that it 
is only to create a trap that disqualifies a large number from 
protection.
    Senator Leahy. Mr. Kohn, I was thinking, late last night I 
was reading your testimony and maybe this is my Irish-Italian 
background, but I could feel my temper growing. You talked 
about the three FBI whistleblowers that faced these lengthy 
delays seeking resource after being retaliated against.
    What is the most important reform that we could have to 
ensure greater efficiency in processing claims of retaliation? 
If you could do one single thing, what would it be?
    Mr. Kohn. The one thing is you need the carrot and the 
stick. The carrot would be the requirements, but the stick is 
real consequences if they do not adhere to strict time limits. 
And the proper kickout in that would be, in my view, to permit 
the FBI employee to go to Federal court for a de novo hearing 
if reasonable time limits were not adhered to.
    If the FBI and the Justice Department knew that the 
employee could go to Federal court, mark my word, they would 
honor those time limits.
    Senator Leahy. You do not believe that the right to 
judicial review would jeopardize national security.
    Mr. Kohn. Not at all, because in Title VII cases, FBI 
agents can go to Federal court right now and many of the exact 
same issues--a whistleblower case is almost always a human 
resources and personnel case. They are debating whether there 
were legitimate reasons for an adverse action.
    The details of the national security issues or the 
confidential issues almost never have to go in front of a court 
and if they did, the Federal courts have very good procedures 
for guarding secrets and holding people extremely accountable 
if they were to violate it.
    Senator Leahy. For both Mr. German and Mr. Kiper, would you 
both agree with that?
    Mr. German. Yes, I would agree.
    Mr. Kiper. I would, too.
    Senator Leahy. Thank you.
    Mr. Chairman, thank you very much. I am glad you are having 
this hearing. I know when we talk with Mr. Comey later on, we 
will be raising some of these same questions.
    Chairman Grassley. I want to thank you for your cooperation 
on this hearing, as well. Thank you.
    I did not ask questions, so I am going to ask my first 
round of questions. Then I will go to the Senator from 
Minnesota and then the Senator from North Carolina.
    Mr. German, Senator Leahy covered the first question I had 
for you. So I will follow up with the Inspector General 
eventually found that several FBI agents and officials 
retaliated against you. What happened to them?
    Mr. German. There was a March 27, 2007 hearing where 
Director Mueller suggested there was some action taken against 
one individual, a unit chief at the undercover unit, but the 
Tampa officials that were directly involved with mishandling 
the counterterrorism investigation, falsifying documents to 
cover it up, and retaliating against me, I am not aware that 
they received any punishment.
    And, in fact, the direct supervisor and the ASAC both later 
became special agents in charge at the FBI.
    Chairman Grassley. Then I wanted to ask you if you hear 
from FBI employees who are considering blowing a whistle on 
internal misconduct and if you do, what do you tell them?
    Mr. German. I regularly hear from FBI employees who are 
thinking of reporting some problem that they have seen, because 
I am in the media somewhat as an FBI whistleblower and looking 
for advice. And typically the first question I ask them is 
whether they are willing to lose their job over this issue and 
often they are surprised. Many of them I never hear from again. 
But I feel that the chances are they are going to lose their 
job if they press forward. So they need to go forward knowing 
that the protections are not there for them.
    Chairman Grassley. Mr. Kiper, on 26 September last year, I 
wrote Director Comey concerning you. Six months later, after 
you were listed as a witness at this hearing, I finally 
received a reply and I want to put copies of these in the 
record. Without objection.
    [The information referred to appears as a submission for 
the record.]
    Chairman Grassley. The FBI's response does not address the 
truthfulness of the allegations that were used to demote you, 
even though my September letter provided three exhibits that 
appeared to disprove those allegations against you.
    So my question to you. Why did the FBI claim that none of 
your disclosures entitled you to protection from retaliation 
and why do you disagree? Then I will have another question for 
you.
    Mr. Kiper. Thank you for the question, Senator. As I 
alluded to in my opening statements, the FBI's position is not 
that the disclosures I made were not disclosures in content. 
They are saying that I did not make them to the correct 
personnel according to the statute and that is the highest 
ranking official in any FBI field office.
    There are many reasons I disagree with that, but I would 
like to go to the Federal Register, if I may, which describes 
comments and the reasons why the phrase, ``highest ranking 
official in any FBI office,'' was constructed and that is, to 
give employees a broader access to local leaders without 
specifying the precise job title of those leaders.
    And here is a quote from the Register: ``The highest 
ranking official in each FBI field office is generally a 
special agent in charge, or SAC. These senior officials are 
generally in a position to take action against and to correct 
management and other problems within their respective field 
offices. In addition, designating the heads of field offices as 
recipients of protected disclosures permits employees in the 
field to have an opportunity to make disclosures to officials 
with whom they may be more familiar and without the necessity 
of contacting officials at FBI headquarters.''
    They go on to say, that is, the Federal Register comments 
emphasize the need for a whistleblower to have access to an 
onsite contact for making disclosures, and this is another 
quote: ``Designating the highest ranking official in each field 
office, but not all supervisors, as recipients of protected 
disclosures provides a way to channel such disclosures to those 
in the field who are in a position to respond and to correct 
management and other problems while also providing an onsite 
contact in the field for making protected disclosures.''
    So the reason why I believe they are wrong, from the 
Federal Register, is that the highest ranking official serving 
as the onsite contact at the FBI Academy is the assistant 
director or his designee.
    Chairman Grassley. My last question to you is you have had 
a chance to review the FBI's March 2 letter that describes its 
new policies on loss of effectiveness orders. Do these new 
policies sufficiently protect whistleblowers and if not, would 
you tell me why not?
    Mr. Kiper. No, Senator. I do not believe they adequately 
protect FBI whistleblowers for three reasons. I am not sure if 
I am going to have time to get to all of them.
    But very quickly, in Section 9.2 of this policy, it states 
that, ``This policy applies only to management directed 
reassignments, which, because of the circumstances under which 
they are initiated, are designated as LOE transfers, that is, 
transfers not so designated are not within the scope of this 
directive, even if they are otherwise management directed.''
    And to me, that says, they are giving themselves a blank 
check again and all they need to do is--if they want to take 
retaliation against a whistleblower, all they have to do is not 
designate it as an LOE transfer and then none of this policy 
applies. That is the first problem that I see with it.
    Chairman Grassley. If you have that written down, why do we 
not just put that in the record? And then I will go to Senator 
Franken. You have some reasons written down, right?
    Mr. Kiper. Yes, Senator, and some other papers. But last 
night when I received this, my notes are kind of sketchy. But I 
can--I can get that to you.
    Chairman Grassley. Senator Franken. And then I have got 
questions of Mr. Kohn, but I am going to respect yours and 
Senator Tillis'.
    Senator Franken. Why do you not use some of my time, 
because actually you asked the main question I had for Mr. 
German, which was if anything had happened to the people that 
retaliated against him. So go ahead, use my time. You are the 
Chairman, but I grant you it.
    [Laughter.]
    Chairman Grassley. I am very appreciative.
    Mr. Kohn, what have been the costs of these prolonged cases 
that you talked about being so costly and taking so long, both 
financially and non-financial, and will the Department's 
recommendations result in fewer delays by FBI whistleblowers?
    Mr. Kohn. Well, first, the Department's recommendations 
will not. They are not mandatory and there is no sanction if 
these cases are endlessly delayed.
    In terms of the costs, first is monetary. We know it has 
cost millions of dollars. We know they have paid hundreds of 
thousands of dollars, well over $1 million in attorney's fees 
to the whistleblower lawyers. It is a complete waste of 
taxpayer money.
    So those litigation costs, but the real costs are the loss 
of the agents, like Jane Turner, who was a spectacular agent, 
they lost her. Mr. Kobus, who was a brilliant manager, they 
lost him. And Bassem Youssef, whose work in counterterrorism 
was second to none, who was the highest ranking Arabic-speaking 
agent in the Bureau, but after he was retaliated against and 
for about 12 years, was not permitted to use his Arabic 
language, despite being the highest ranking official fluent in 
that skill and a skill we needed.
    The retaliation at the FBI reflects a culture and that 
culture needs to be reformed both legally through actions of 
Congress and I would hope through the leadership of the FBI 
being pushed to do the right thing.
    Chairman Grassley. You have represented a lot of 
whistleblowers in different agencies. So I want to know those 
other agencies handling of whistleblowers compares to the FBI.
    Mr. Kohn. The delays are far longer in the FBI process than 
any other Federal employee process. The Office of Special 
Counsel is under certain requirements to conduct investigations 
and complete them in a limited time period and if it goes to 
the MSPB, those judges are under specific performance 
indicators and they follow them.
    So it is not like we need a law for the other Federal 
workers because those judges follow their requirements. That is 
completely unlike the FBI.
    And there is another point there, the mandatory retirement 
age of 57. When we say these cases go on for 10 years, 12 
years, like in Jane Turner's case, she passed mandatory 
retirement.
    So the traditional order of a reinstatement is meaningless. 
So if the traditional relief given to whistleblowers, 
reinstatement, cannot be given in an FBI whistleblower case, 
essentially you lose the case by delay.
    Chairman Grassley. Thank you.
    Senator Franken, you have got 30 seconds of your 5 minutes.
    Senator Franken. Mr. German, as an outside observer of the 
DOJ and GAO investigations and the reports issued, how would 
you characterize the Department's and the Bureau's response to 
the reports' recommendations? Do you find their response 
genuine?
    Mr. German. I think this has been a longstanding problem at 
the FBI and the Justice Department, a problem that they could 
have solved very easily by simply prohibiting their managers 
from retaliating against whistleblowers.
    So this is not an issue of good faith. They have shown they 
do not have good faith in these cases. I think it is time for a 
legislative action to compel them to do what they should have 
done from the beginning.
    Senator Franken. Well, I see I am out of time. Thank you, 
Mr. Chairman.
    Chairman Grassley. Senator Tillis, and then we will go to 
Senator Blumenthal.
    Senator Tillis. Thank you, Mr. Chairman.
    Gentlemen, thank you for being here and thank you for your 
service, and I regret that you have had to go through what you 
have gone through.
    One question I have, and I honestly do not know, how many 
people are employed by the FBI?
    Mr. Kohn. I think it is 35,000.
    Senator Tillis. Thirty-five thousand? So we have an 
organization with some 30,000 people and nine people with whom 
we can report issues like you have discussed. I understand that 
we have access to sensitive information, but that seems like a 
ridiculous ratio.
    Given our role on oversight, and this could be for any of 
the three of you, what kinds of additional steps, what 
specifically do you think, either in an oversight role that we 
perform of what specific elements of legislation do you have in 
mind that could address some of these problems?
    Mr. German. I think that there are two problems, one on the 
investigation side and one on the adjudication side. And I 
think with the investigation side, part of the problem is there 
is some ambiguity between who is responsible for doing the 
investigation.
    In my case, I reported to the Inspector General, but then 
the FBI's office of professional responsibility started the 
investigation. After not hearing from them for weeks, I found 
out the FBI inspection division had actually taken over the 
investigation and then ultimately, after I came to Congress, 
the Inspector General finally did an investigation.
    But by that point, by the time the investigation was over, 
4 years had passed. So some clarity of who is responsible and, 
as Mr. Kohn has suggested, time limits in those investigations.
    On the adjudication side, requiring, if there is an 
internal process, that they use Administrative Procedures Act 
standards and administrative law judges. That is the way that 
both litigants can have an equal opportunity in the 
investigation and ultimately an opportunity to get judicial 
review in Federal court.
    Mr. Kiper. Thank you, Senator, for the question. If I could 
just add to that a little bit.
    One of the problems that I see in the list that is provided 
in the statute right now is that none of the individuals or 
offices listed are directly responsible for taking adverse 
action against employees.
    And so, for example, the inspection division's office of 
inspections are the ones that actually write loss of 
effectiveness communications and establish that, but they are 
not on the list.
    Also, human resources division are the ones that look at 
those LOE findings and they are the ones that make the 
decisions to actually remove and demote people. They are not, 
also, on the list.
    And so when you try to make the connection between those 
that knew about the whistleblower disclosure and those that 
take adverse action, that is very, very difficult.
    Mr. Kohn. Senator, legislatively, three fixes are 
absolutely essential. One, you must protect reports to 
supervisors. Every other whistleblower law does it and it is 
fundamental given how most employees report concerns.
    Two, strict enforceable time limits. We know left to their 
own devices, these cases have gone on for years and years.
    Third is judicial review. You need someone of independent 
authority looking over the process. That is on the legislative 
side. But just as important is culture. The FBI has a culture 
that is very hostile to whistleblowers. And what you need is a 
change from the top, from the director on down. And I represent 
employees. Of the three that one their cases, I represent two, 
but what was missing in both of those cases was any recognition 
from the top down that anything wrong happened; not just 
sanctioning the wrongdoer, but saying anything positive about 
whistleblowing, saying this was wrong.
    It is one thing getting an order of enforcement from the 
Justice Department that is not circulated throughout the FBI 
and it is another thing to have the top leadership say it was 
wrong. Whistleblowing is right. We have to change the culture. 
I would call for, administratively, an independent, top-down 
review of how the FBI reacted to these cases and what steps the 
FBI took to eliminate the chilling effect.
    Senator Tillis. In my remaining few seconds. The question I 
have really is if we take action, how do we make sure that we 
strike a balance so that we are able to be able to do the right 
thing in the case where you all did the right thing, but maybe 
get into a scenario where you will have a disgruntled employee 
or someone else who is using this, I think, for improper 
purposes.
    Have you got an idea of how you kind of strike that 
balance?
    Mr. Kohn. I would like to address that because it comes up 
a lot in whistleblower cases. But I will say this, and I have 
represented whistleblowers for 30 years and also other 
employees.
    No one wants to be declared a whistleblower. If you are a 
bad employee and you are looking for some type of employment 
thing to keep your job, FBI employees can use EEO, they can use 
other processes. They can even go to Federal court on an EEO.
    No one wants to be branded a whistleblower. So that is not 
what employees utilize. They do not utilize whistleblower 
procedures in that manner on the whole.
    Senator Tillis. Thank you, Mr. Chair.
    Chairman Grassley. Senator Blumenthal.
    Senator Blumenthal. Thanks, Mr. Chairman. And thank you for 
holding this very important hearing.
    I want to focus on the specifics that can change the 
culture, because at the end of the day, as you have just 
articulated very well, the culture at the top is important. 
Changing regulations maybe critical, as well. But how does an 
agency like the FBI, the Nation's premier law enforcement 
agency, change culture so that there is respect for the law and 
folks who complain that internally the law may have been 
neglected or disregarded?
    Is it training? Is it workshops? Is it sessions where the 
FBI director participates and talks about this issue, as 
Director Comey did in this very room in response to questions 
that I asked and others?
    As you cited, Mr. German, in your testimony, the talk is 
fine, but what do we do to change the culture?
    Mr. German. Thank you. I believe that holding the managers 
responsible is a key part. I mean, it is somewhat ironic to 
suggest that the FBI, the Nation's premier law enforcement 
agency, does not have a culture of upholding the law 
internally. That is problematic and I think that does come from 
leadership, but it also is part of everything the agency is 
supposed to be doing.
    So I think the problem is larger than just one of culture. 
If people are held responsible to the law, there will be----
    Senator Blumenthal. And how is that going to be done? For 
example, you have recounted the experience with the Tampa SAC.
    Mr. German. Right.
    Senator Blumenthal. Nobody wants to hear bad news.
    Mr. German. Right.
    Senator Blumenthal. He might not have wished to hear bad 
news, no matter how good an agent he was, bad news about his 
people. And by the way, I have the utmost of respect for the 
FBI, having worked with them as a U.S. Attorney and afterward 
as Attorney General of my State.
    The exceptions are indeed rare exceptions, but they are 
very, very important. So how specifically do we hold 
accountable the managers and make sure that they have respect 
for whistleblowing?
    Mr. German. So one of the recommendations I have long had 
that the Inspector General put in place was an ombudsman, 
because part of the problem is when there is not an appropriate 
reaction, the whistleblower has nowhere to go except to make 
another whistleblower complaint. So now it is two complaints. 
And then when there is another type of retaliation, there is a 
third complaint and it starts to look like the employee is the 
problem rather than the failure of management to respond to the 
complaint appropriately.
    But I think having strong regulations set in statute that 
requires the FBI to respond appropriately or pay a price is 
what will change the culture.
    Mr. Kohn. And I would just like to add, and I agree with 
everything Mr. German has said, but I was at a panel and a 
leading corporate lawyer, and this is in the corporate context, 
and he said on this panel ``whistleblowers are assets.'' And 
that is the beginning of the change of the culture to recognize 
that when an employee has the courage and the intelligence to 
risk something by reporting obvious wrongdoing, that is to be 
celebrated. That person is an asset.
    I think one place to start is by asking the director of the 
FBI what did you do to celebrate Jane Turner's whistleblowing. 
We now know she reported large-scale theft at 9/11. The FBI 
changed its policies on taking, quote-unquote, ``souvenirs'' 
from the crime scenes. She was retaliated against, fully 
adjudicated. What did you do to celebrate her contributions to 
this country and the fact that she did put her entire career on 
the line, what did you do?
    Senator Blumenthal. What you are suggesting, in effect, is 
at the kind of awards ceremony that the Attorney General of the 
United States has, put aside director of the FBI, there should 
be recognition of whistleblowers in the same way we do the 
enormously courageous and valuable efforts of FBI agents who 
risk their lives.
    Whistleblowers risk their reputations and careers and 
sometimes even put their lives in jeopardy when they report 
wrongdoing within the Government and perhaps celebrate it the 
same way.
    Mr. Kohn. And I will say just that I think that would have 
a major impact on the culture, but I will also tell you it 
would have a tremendous healing effect on the whistleblowers 
who really go scarred for the rest of their life, never having 
that. I think it is what is deserved.
    Senator Blumenthal. Thank you, Mr. Chairman.
    Chairman Grassley. Senator Whitehouse. And I want to thank 
Members that participate. Usually, whistleblower hearings do 
not get this kind of participation. Thank you very much.
    Senator Whitehouse. Well, thank you, Chairman. I share with 
Senator Blumenthal the experience of having been a United 
States Attorney and having worked with the FBI and having 
developed a very high regard for our Federal Bureau of 
Investigation.
    But even more specifically, Mr. Chairman, I served as 
United States Attorney in Rhode Island at a time when Special 
Agent Michael German was serving in the FBI office in Rhode 
Island. And so I have had the personal experience of his work. 
He did very, very impressive work as an FBI agent, including 
some rather dangerous undercover agents that I do not think we 
can discuss any further here, but it was very impressive. So I 
am delighted to welcome Michael to this hearing and express my 
pride in the service that he gave to his country as a special 
agent of the FBI.
    This may have been gone over before, but back when the 
whistleblower protections were set up under the Civil Service 
Reform Act, the FBI was exempted. There were various, I do not 
know, law enforcement reasons or whatever for doing that. They 
were subject to DOJ regulation instead.
    Is it time to revisit that and just put everybody under the 
same Civil Service Act?
    Mr. German. I believe so. I believe the national security 
questions would come up in a rare few cases and the system is 
developed well enough to protect the information that needs to 
be protected.
    And, also, I think it is important to keep in mind that the 
agents want it protected. The employees of the FBI protect this 
information every day. So the idea that they would go into a 
process and willy nilly leak important national security 
information I think is specious.
    Senator Whitehouse. And how much should we rely on the 
recent GAO and DOJ reports' recommendations? Do they form a 
good foundation? Are they a complete prescription for the 
solution to this problem? Do they go in the wrong direction? 
How would you steer us with respect to those two reports?
    Mr. German. There are certainly several important 
improvements that could be made to the existing system, but I 
think much more needs to be done and I think it needs to be 
done through statute.
    With the Justice Department recommendations, there are a 
few that raise my concerns. Providing OARM with the authority 
to sanction litigants. There are already systems for 
disciplining people. This is an adjudicatory process and office 
that does not have the appropriate independence or transparency 
to give that kind of authority to. And in the worst case 
scenario, they could actually be contributing to the 
retaliation against the whistleblower through that type of a 
process.
    I also have concerns about the Justice Department 
recommendation for mediated dispute resolution. While that 
always sounds positive, if the underlying regulation is not 
changed to give FBI whistleblowers a real shot, that mediation 
could just be another trap where the agent or FBI employee is 
not holding any cards to compel the FBI management to stop the 
retaliation.
    Senator Whitehouse. Are there any lessons that we should 
learn from the qui tam type actions that can be brought for 
disclosure of fraud by individuals in this context?
    Mr. Kohn. On that, as I think the Senate Judiciary 
Committee, a number of years ago, voted out the False Claims 
Corrections Act and it had a part that never became law which 
would have applied explicitly the False Claims Act to Federal 
employees and set up a procedure that was extremely reasonable 
requiring the employee to go internally, requiring the employee 
to work with the Inspector General, setting time limits for the 
Government to fix itself, but then opening up those qui tam 
laws if the internal governmental process did not work.
    And what we know about the False Claims Act and its qui tam 
procedures----
    Senator Whitehouse. Qui tam is a fallback to it.
    Mr. Kohn. Correct. It would be--it would be--again, it 
would be the--it would force the Government to do the right 
thing and hold them accountable under the qui tam provisions if 
they do not.
    Senator Whitehouse. If I could ask one last question. I can 
remember an employment lawyer talking to me once and saying 
that if they had a Government employee client who was in 
trouble at work, their first piece of advice to them would be 
to find some whistle to blow and now you are a whistleblower 
instead of a problem employee.
    That I do not think is a frequent problem, but it is one 
that we have to make sure we can separate out from the 
legitimate whistleblower.
    Do you have any advice on that?
    Mr. Kohn. First off, employees do not become whistleblowers 
to seek sanctions for bad performance, for one reason: There 
are a lot of other laws that are even more powerful. The Title 
VII is far more powerful than the current Whistleblower 
Protection Act. So why would someone want----
    Senator Whitehouse. So the lawyer who told me that was 
giving their clients bad advice.
    Mr. Kohn. Yes. They should go to Title VII. But more 
important is, no one wants the stigma of being a whistleblower. 
That will last a long time and it will have detrimental 
consequences for years to come. It is something that people do 
not court.
    In fact, most of my clients over the last----
    Senator Whitehouse. If we do this right, however, we will 
be lifting that stigma, if your recommendation will be 
celebrating it.
    Mr. Kohn. I certainly hope so.
    Senator Whitehouse. Thank you, Chairman.
    Chairman Grassley. Senator Klobuchar.
    Senator Klobuchar. Thank you. Thank you so much for your 
work in this area, Senator Grassley. And thank you to the 
witnesses. I had another hearing and I just came here at the 
tail end.
    Mr. German, you discussed some of the complicating factors 
that may impact how whistleblowers engage with mediators. Why 
do you think that whistleblowers would face these dynamics?
    Mr. German. I think part of it is because they do not have 
a lot of power in this situation. So their alternative, if they 
cannot work out a deal in mediation, is to go into a broken 
system. So they would have to accept something less than what 
they might deserve.
    I think the other part of the problem, as Special Agent 
Kiper has described, the FBI has many different levers that it 
can pull to act in a retaliatory manner, whether it is your 
regular performance reviews, there are regular inspections of 
FBI field offices, there are 5-year background investigations.
    So even if you worked out a deal in mediation, when that 5-
year background investigation comes up and they find something 
and hold you responsible for something they would not have 
otherwise held others responsible for, how do you then say, 
well, that is another form of retaliation.
    With my case, I was being--there were people retaliating 
against me who had absolutely nothing to do with the original 
claim. These were people who were just piling on because they 
had heard I was a whistleblower and could look good to the 
people who were part of the group that I had reported against.
    So the idea that an agreement could be hammered out and the 
FBI would have any incentive to follow that agreement in the 
future I think would concern me. Again, if the system is 
corrected and the agent really does have strong protections, 
then I would change my mind.
    Senator Klobuchar. Mr. Kohn, I understand you are 
interested in placing some strict time limits on the 
adjudication process for these kinds of complaints.
    Do you think there would ever be situations that would need 
to fall outside of the strict timelines?
    Mr. Kohn. It is hard to imagine that there would be given 
the types of issues. These are employment issues.
    In my recommendation, I do say that if the employee 
consents to enlargement, then that is excluded from the 
mandatory time limits. But having done employment cases for 30 
years, these types of cases can be handled.
    If the resources and the commitment are put to it, they can 
be handled clearly within a year.
    Senator Klobuchar. Mr. Kiper, I know this has come up, but 
which of the--I know there has been a report and other things. 
And which things do you think should be the highest priority if 
there are going to be changes to the process?
    Mr. Kiper. Thank you for the question, Senator. I think one 
of the problems is illustrated in the fact that 3 days ago, on 
Sunday, was the first time that the FBI has documented any sort 
of policy regarding loss of effectiveness transfers. That is a 
problem because they use the management directed reassignments 
at will and without any recourse and it says in the policy 
supervisors who are removed via that process do not have access 
to the performance appraisal system's performance improvement 
plan or any other resource.
    And to add to that, inspection division also does not have 
a documented policy guide that governs how inspectors are 
actually conducting themselves at inspection. And so that 
leaves it up to them whether or not they want to actually fact 
check what they are documenting in these loss of effectiveness 
findings that they are writing.
    Senator Klobuchar. Thank you very much, all of you. I 
appreciate it.
    Chairman Grassley. We will have--I am done asking 
questions--up to 1 week for any Members to submit questions for 
answer in writing. You might get some of those questions. You 
probably will from me.
    I want to suggest one other thing that I am sure you have 
heard me say, but the word culture of the FBI, and I suppose 
you could say the culture of a lot of agencies, is just like 
you said, Mr. Kohn, being a whistleblower, you really put your 
professional life on the line.
    I have suggested to five Presidents individually and it has 
never been done and I do not imagine it will ever be done, but 
you have heard me suggest that if you really want to change 
this culture, if you really want--as every President said, we 
need whistleblowers. Every Cabinet person comes here and says 
we need whistleblowers, et cetera, et cetera. The way they act, 
then you find out they do not respect whistleblowers.
    But anyway, I have always suggested that until a President 
has a rose garden ceremony once a year honoring whistleblowers 
and send from the top of the administration down to the bottom, 
that that is the only way to say that the culture needs to be 
changed if the President says it needs to be changed.
    Now, none of them have said that or will do that, but I am 
chagrined that one President told me, well, if we did that, we 
would have 3,000 whistleblowers coming out of the woodwork. 
Well, that is exactly what we want if you want to change things 
here in this Government.
    Thank you all very much for participating.
    While the other panel is coming up, I am going to introduce 
the other panel.
    David Maurer is Director of the U.S. Government 
Accountability Office, Homeland Security and Justice Team, 
where he currently leads GAO's work reviewing justice and law 
enforcement issues. And I think everybody at GAO knows, I hope 
they know that I respect that organization very much and rely 
upon them a great deal for oversight activity.
    Kevin Perkins was appointed Associate Deputy Director of 
the FBI June 2012. He has oversight over FBI personnel, budget, 
administration and infrastructure matters. Mr. Perkins has 
served the FBI since he became a special agent in 1986.
    Michael Horowitz is the Inspector General of the Department 
of Justice. Mr. Horowitz also has previously served on the 
Sentencing Commission and spent many years in the Justice 
Department as an Assistant U.S. Attorney, Deputy Assistant 
Attorney General, Chief of Staff. And just a few months ago, 
after being sworn in as Inspector General, Mr. Horowitz 
implemented a whistleblower ombudsman program within OIG to 
educate Justice Department personnel about whistleblower 
protections.
    Also, what I said about GAO I can say about not only Mr. 
Horowitz as IG, but many other IGs, but especially you, Mr. 
Horowitz. We rely upon you a great deal to help us with our 
oversight work.
    Now, would you stay seated, please, but I would like to 
have you be sworn.
    [Witnesses are sworn in.]
    Chairman Grassley. Affirmative by all. Thank you.
    I am going to start with Mr. Maurer.

        STATEMENT OF DAVID C. MAURER, DIRECTOR, HOMELAND
          SECURITY AND JUSTICE ISSUES, U.S. GOVERNMENT
             ACCOUNTABILITY OFFICE, WASHINGTON, DC

    Mr. Maurer. Thank you, Chairman Grassley, other Members and 
staff. I am pleased to be here today to discuss the findings 
from our recent report on DOJ's handling of FBI whistleblower 
retaliation complaints.
    As you know well, Federal whistleblowers are a valuable 
source of information on Government waste, fraud and abuse. 
Their disclosures can help improve how well the Federal 
Government serves the people.
    Unfortunately, whistleblowers can also take a risk when 
they step forward. As we heard earlier, some have been demoted, 
reassigned or fired because they saw a problem and they 
reported it.
    There are few places where whistleblower protection is more 
important than the FBI. The FBI has a unique set of 
responsibilities including protecting the Nation against 
terrorists, criminal and intelligence threats. Protecting FBI 
whistleblowers against retaliation helps the Bureau be as 
effective as possible.
    Mr. Chairman, you asked us to look at the DOJ's efforts to 
protect FBI whistleblowers. And during our review, the 
Department of Justice and the FBI repeatedly stated their 
commitment to whistleblower protection and began working to 
improve how they handle allegations of retaliation.
    But they clearly need to do more. I would like to briefly 
mention three key areas of concern from our report. First, FBI 
employees are less protected against retaliation than other 
Federal employees. DOJ regulations require FBI employees to 
report alleged wrongdoing to specific high ranking officials or 
offices, including the Attorney General, the director of the 
FBI, or the DOJ Office of Inspector General.
    This is unique. Everywhere else in the executive branch, 
employees can report to anyone in their chain of command, 
including their immediate supervisor.
    At the FBI, if an employee does not make his or her initial 
disclosure to the right person, they are not protected against 
retaliation and will not receive corrective action, such as 
back pay for a retaliatory demotion.
    We found that DOJ terminated 23 of the 62 complaints we 
reviewed, in part, because the employees made the disclosure to 
the wrong person. By dismissing retaliation complaints in this 
way, DOJ could permit retaliatory activity to go uninvestigated 
and create a chilling effect for future whistleblowers.
    As we reported, Congress may wish to amend the law to 
address this problem.
    Second, we found inconsistencies in DOJ's whistleblower 
guidance. In some cases, DOJ and FBI provided accurate 
information to employees. However, some training and guidance 
could mistakenly lead FBI employees to believe that reporting 
wrongdoing to a supervisor would be a protected disclosure.
    DOJ should clarify its guidance so FBI employees clearly 
understand to whom they can report concerns while remaining 
protected against potential retaliation.
    Third, we found that the amount of time DOJ takes varied 
widely. DOJ resolved most retaliation complaints within a year 
largely because there-quarters of the time, DOJ dismissed the 
case after determining it did not meet the Department's 
regulatory requirements.
    DOJ took the longest for those cases where it found the FBI 
had retaliated against a whistleblower. Out of the 62 cases we 
reviewed, DOJ found retaliation had occurred three times. These 
three cases lasted from 8 to over 10.5 years. This lengthy and 
expensive process could discourage others from even bothering 
to come forward.
    Recently, DOJ has taken a number of steps, such as 
developing a mediation program and procedures with stricter 
timeframes. These measures could help resolve complaints more 
quickly.
    We recommended that DOJ track the impact of these changes 
to determine whether that is actually the case.
    We also recommended that DOJ provide whistleblowers an 
estimate of how long it will take to process their claims; 
similar to current practice, at the Merit System Protection 
Board and the DOD Inspector General.
    It is also worth pointing out that it has been nearly a 
year since the Department of Justice issued a report with a 
number of other potential changes that could enhance 
whistleblower protection. DOJ has yet to implement many of 
these changes, and we will keep track of what they do in the 
coming weeks and months.
    In responding to our report, DOJ concurred with all of our 
recommendations and committed to improving how the Department 
handles FBI whistleblower complaints. Implementing our 
recommendations will better position DOJ to fulfill its 
commitment and protect FBI whistleblowers from retaliation.
    We will keep you apprised of the Department's efforts to 
enhance whistleblower protection and address the findings from 
our report.
    Mr. Chairman, that concludes my opening remarks. Thank you 
for the opportunity to testify today.
    [The prepared statement of Mr. Maurer appears as a 
submission for the record.]
    Chairman Grassley. Thank you, Mr. Maurer.
    Now, Mr. Perkins? Thank you.

   STATEMENT OF KEVIN L. PERKINS, ASSOCIATE DEPUTY DIRECTOR, 
                FEDERAL BUREAU OF INVESTIGATION

    Mr. Perkins. Good morning, Chairman. Thank you again for 
inviting me here to testify, and to Members of the Committee.
    I appreciate the opportunity I have to be here today before 
you to discuss the issue of whistleblower retaliation within 
the FBI.
    The FBI recognizes the important role played by 
whistleblowers in our law enforcement efforts and takes very 
seriously our responsibilities with regard to FBI employees who 
make whistleblower complaints.
    As Director Comey has told this Committee, whistleblowers 
are a critical element of a functioning democracy and employees 
have to feel free to raise their concerns and if they are not 
addressed up through their chain of command, to take them to 
the appropriate place.
    As you know, all FBI whistleblowers are protected by 
Federal law from retribution. Any FBI employee who believes he 
or she has suffered a reprisal for making a protected 
disclosure may report the reprisal to the Inspector General, 
who is here with me today, to the DOJ Office of Professional 
Responsibility, to the head of their particular field office, 
or to other senior FBI officials at FBI headquarters, or the 
internal investigative section within the FBI's inspection 
division.
    There is an independent administrative process for 
adjudicating those claims. As you would expect, the FDA does 
not have responsibility for deciding those claims, as it is 
important that there be an independent adjudication of any 
claims of retaliation.
    The reports of reprisal are investigated either by the DOJ 
Inspector General's Office or the DOJ Office of Professional 
Responsibility, who interview witnesses, collect relevant 
documents, and make their findings.
    The complainant is then notified of their findings and 
permitted to continue their complaint with the Office of 
Attorney Recruitment and Management, or OARM, and engage in an 
administrative litigation that affords qualified complainant 
discovery, briefings, and a hearing before making a final 
determination.
    In addition, a complainant may ask for a review by the 
Deputy Attorney General after the OARM process has concluded.
    To the extent that there have been concerns raised by the 
witnesses earlier today regarding this process, we share the 
desire for the process to be improved and expedited. We have 
and will continue to work with the Department as they take 
additional steps that can be taken to make the process better.
    Now, in response to the Presidential Policy Directive PPD-
19, the Justice Department undertook a comprehensive review of 
their process for handling FBI whistleblower reprisal cases 
between 2005 and 2014. This process was led by the Deputy 
Attorney General and focused on improving OARM process and 
making employees more aware of the process through training.
    Based on this review, the Justice Department has proposed a 
number of recommendations which the Department and the FBI have 
since begun implementing. These include providing access to 
alternative dispute resolution, expanding the resources of 
OARM, improving training for FBI employees, expediting the OARM 
process, awarding compensatory damages, publishing annual 
reports, and expanding the list of persons to whom a protected 
disclosure may be made.
    The FBI continues to work with the Justice Department in 
these recommendations and we have made progress on those 
directed to the FBI.
    The FBI now has a process for offering mediation to 
whistleblowers alleging retaliation, and the process just 
recently completed its first case successfully. Also, OARM has 
enhanced their resources to support the process and claims are 
being processed more effectively.
    As for training, the FBI requires all employees to take 
whistleblower training once every 2 years as part of the No 
Fear Act. In addition, we have informational materials on the 
whistleblower process available on our internal Websites for 
all employees who can be accessed from any FBI workstation.
    These materials include frequently asked questions that 
review the process and can explain what steps an employee must 
take.
    In the coming year, the FBI and the Office of the Inspector 
General are developing new training on whistleblower 
protections and we will expect these additional materials will 
be used to supplement those in the No Fear Act training already 
provided.
    In addition, we are aware of and fully cooperated in the 
GAO's report on additional actions necessary to improve the 
Department's handling of FBI retaliation complaints. We would 
note that none of the recommendations in the GAO report were 
directed to the FBI as they were focused on DOJ's handling of 
the retaliation claims.
    As noted above, DOJ has taken steps to improve their 
process for handling these claims.
    Chairman Grassley and Committee Members, I thank you again 
for this opportunity to be here to discuss whistleblower 
protections within the FBI, and I will be happy to answer any 
questions you may have, sir.
    [The prepared statement of Mr. Perkins appears as a 
submission for the record.]
    Chairman Grassley. Thank you.
    General Horowitz?

STATEMENT OF HON. MICHAEL E. HOROWITZ, INSPECTOR GENERAL, U.S. 
             DEPARTMENT OF JUSTICE, WASHINGTON, DC

    General Horowitz. Thank you, Mr. Chairman, Members of the 
Committee. Thank you for inviting me to testify today.
    Whistleblowers perform an important service when they 
report potential wrongdoing and they must never be subject to 
reprisal for doing so.
    We need to do all we can to foster and support a culture 
where Department employees are encouraged to make such reports. 
For these reasons, I have made whistleblower rights and 
protections one of my highest priorities as Inspector General.
    To advance this work, I established a whistleblower 
ombudsperson program before such positions were required by the 
WPEA and going well beyond the requirements of that statute.
    To lead the program, I assigned a senior attorney from my 
front office with whom I consult regularly. Our ombudsperson 
created a video entitled, ``Reporting Wrongdoing: 
Whistleblowers and Their Rights,'' and is working with the FBI 
to create a specialized training program for FBI 
whistleblowers.
    We also are providing training to other Department 
components and we have dedicated a whistleblower protection 
page on our Website.
    We also have reached out to the whistleblower community so 
that we can hear from them firsthand about issues of concern. 
And as a result of our internal training and education, the OIG 
was certified by the Office of Special Counsel pursuant to 
Section 2302(c).
    In addition, we helped create and we continue to chair the 
Working Group of Federal Whistleblower Ombudspersons 
established by the Council of Inspectors General.
    As the new chair of the Council of Inspectors General, I 
look forward to working to enhance whistleblower protection 
programs across the IG community.
    I am proud of the dedication of the OIG staff that handles 
these matters and care so deeply about them. While we have 
always pursued FBI whistleblower matters with the utmost 
dedication and commitment, we regularly critically assess our 
efforts in order to improve our program.
    And we also very much appreciate the recent report of the 
GAO. As an independent oversight entity ourselves, we fully 
appreciate the difficulty of the GAO's work and we value its 
recommendations.
    So let me highlight some concrete steps we have taken over 
the past 2 years. We are working to process complaints faster 
by conducting initial reviews within 1 or 2 days of receipt, 
when possible.
    We are also improving our compliance with the 15-day 
requirement for providing written notice to a complainant 
following receipt of a complaint.
    Similarly, we are documenting the periodic status 
notifications that our investigators are providing to 
complainants, as well as the agreement of complainants to 
extend the time for making reasonable grounds determinations.
    We also created a specialized access data base and 
SharePoint site to facilitate case tracking and adopt model 
report language to make report-writing more efficient.
    We also modified our procedures with respect to decisions 
not to initiate an investigation. In the past, we closed such 
complaints in a brief declination letter. In the interest of 
enhancing transparency and giving whistleblowers the fullest 
possible opportunity to provide relevant information, our 
declination letters now identify deficiencies in complaints and 
provide complainants an opportunity to submit additional 
information prior to the declination becoming final.
    These changes go beyond the regulatory requirements and are 
consistent with our desire to provide maximum possible support 
for whistleblowers.
    In addition, we were an active participant in the 
Department's PPD-19 working group. One particularly important 
proposed change recommended by that group was expanding the 
definition of persons to whom a protected disclosure can be 
made, which the OIG endorses. This recommendation needs to be 
addressed promptly.
    Let me conclude by discussing a development that hinders 
our ability to complete investigations in a timely manner: the 
FBI's practice of reviewing documents requested by the OIG in 
order to determine whether they believe the OIG is legally 
entitled to access them.
    In FBI whistleblower retaliation cases, this raises two 
significant concerns. First, it creates, at a minimum, a 
significant appearance of a conflict of interest. This is 
particularly the case in light of the FBI Office of General 
Counsel's direct involvement in both the document review for us 
and in any subsequent adjudication before OARM, where the FBI's 
OGC defends the FBI and its managers against the claim of 
reprisal.
    Second, these document reviews seriously delay our reviews. 
This occurred recently in two whistleblower retaliation reviews 
that we were conducting and after 3 to 4 months of delays, we 
finally received production of most of the responsive emails in 
February 2015.
    A major factor in the delays was the FBI's practice of 
reviewing emails before producing them to us, and in both 
cases, we understand the FBI has withheld materials given its 
legal reviews, pending what we believe is an authorization from 
the Attorney General or the Deputy Attorney General to provide 
them to us.
    However, the IG Act clearly provides that the OIG is 
authorized to have access to all records in the Department's 
possession.
    Further, Section 218 of the Appropriations Act does not 
permit the Department to use funds to deny the OIG access to 
records unless in accordance with an express limitation in the 
IG Act, which is not the case in these instances.
    The Department chose to refer this issue and the FBI's 
narrow legal interpretation of the IG Act to the Office of 
Legal Counsel in May 2014. Nine months later, we are still 
waiting for that decision. Every day that goes by without a 
decision results in a waste of FBI and OIG resources, delays 
OIG audits and reviews that uncover waste, fraud, abuse and 
mismanagement, and harms FBI whistleblowers who rely on the OIG 
to review their retaliation allegations in a timely manner.
    It is long past time to issue the OLC opinion so this 
dispute can finally be resolved.
    Thank you for the Committee's continued support for our 
office and I am pleased to answer any questions.
    [The prepared statement of General Horowitz appears as a 
submission for the record.]
    Chairman Grassley. Thanks to all three of you.
    First of all, a pretty simple question to Mr. Perkins. 
Could I have your commitment that the FBI will not take adverse 
action against Special Agent Kiper for his testimony here today 
or for his previous communications with this Committee?
    Mr. Perkins. You have my commitment and you have Director 
Comey's commitment on that, sir.
    Chairman Grassley. Thank you. Can I also follow up with 
this question? The Justice Department's regulations do not 
explicitly protect his communications with the Committee staff 
or his testimony here today; is that correct?
    Mr. Perkins. Sir, I am not--I believe that he is--he is 
protected in that, I believe. Yes, I believe so. I will follow 
up with you on that, sir.
    Chairman Grassley. Thank you very much.
    Mr. Perkins. Yes, sir.
    Chairman Grassley. Thank you. Now, to each of you, but I 
hope you can give short answers because we may have a vote 
coming up here shortly.
    Starting with Mr. Maurer and then go across the table to 
the first question. Should DOJ's regulations be amended to 
clearly protect FBI employee disclosures to Congress and if 
not, why not?
    Mr. Maurer. I think that is a fantastic idea. It is a 
valuable source of information and it could assist in 
congressional oversight.
    Chairman Grassley. Mr. Perkins?
    Mr. Perkins. I think it falls within the realm of--if 
someone is disclosing in a whistleblower type of role and 
discloses to Congress, certainly, it is something that they 
should be protected with.
    Chairman Grassley. Mr. Horowitz?
    General Horowitz. Yes.
    Chairman Grassley. To all of you again. The Justice 
Department proposed to sanction whistleblowers for violating 
gag orders issued in its internal appeals process unless there 
are exceptions for disclosures to Congress or the Inspector 
General.
    What prevents these sanctions from thwarting oversight of 
whistleblower cases? Mr. Maurer?
    Mr. Maurer. Mr. Chairman, we did not really review that as 
part of our report for you. So I do not want to get too far off 
in the deep end on that one. So we are not going to take a 
position on that one.
    Chairman Grassley. Mr. Perkins?
    Mr. Perkins. Mr. Chairman, as well, I believe the sanctions 
they are discussing in those lines is something that would be 
handled within the Department of Justice and not necessarily 
with the FBI.
    Chairman Grassley. Mr. Horowitz?
    General Horowitz. We would certainly support whistleblowers 
in that context, Senator.
    Chairman Grassley. Thank you. Before I ask this question, I 
want to refer to the Washington Times reported that an FBI 
whistleblower has alleged that the FBI assigns surveillance 
teams based upon nepotism and personal preferences, not based 
on need.
    My office has obtained an internal FBI email to the 
whistleblower. Without objection, that will be placed in the 
record.
    [The information appears as a submission for the record.]
    Chairman Grassley. The whistleblower asked whether his 
report would meet the technical requirements for protected 
disclosure, and then the answer was shocking to me. The FBI 
Office of Integrity and Compliance said that it was protected, 
but that, quote, ``this does not guarantee that you will not be 
retaliated against, with emphasis upon even though retaliation 
for making a protected disclosure is illegal,'' end of quote.
    After the whistleblower made his report, he received a poor 
performance review. So a question for each of the panel. What 
does it say about the state of whistleblower protections at the 
FBI when its own Office of Integrity and Compliance warns 
whistleblowers that they could be subject to retaliation even 
if they follow the rules and even though the retaliation is 
illegal?
    Mr. Maurer. I think it points to a potential area of 
concern in the overall culture at the FBI, something which the 
first panel talked about. Clearly, this is just one document 
out of many, but I would have hoped that the response would 
have been more in the positive sense of welcoming the 
whistleblower rather than mentioning the fact that he could be 
retaliated against.
    Chairman Grassley. Mr. Perkins?
    Mr. Perkins. Senator, I have only seen what has been 
written in the paper. I do not have the context of which that 
was taken out of. But I will say, speaking for myself and 
Director Comey, as well, we will not and do not tolerate 
retaliation against whistleblowers in the FBI, period.
    Chairman Grassley. Mr. Horowitz? Mr. Horowitz. I just saw 
that email this morning and, obviously, it is very concerning 
that that would be the comment to an individual who wanted to 
come forward and presented information and that is something 
that reflects a concern about the culture, as Mr. Maurer said.
    Chairman Grassley. Referring to the same whistleblower I 
just spoke about, when the Washington Times reported on this 
email, the whistleblower reported to me this very morning that 
he was subject to further retaliation. So I am sending a letter 
to the FBI about this issue.
    I better call on Mr. Tillis. My time is up.
    Senator Tillis. Thank you, Mr. Chair. Actually, I just may 
continue the line of discussion there.
    I think this is probably for Mr. Maurer or General 
Horowitz. You have looked at the agency. You have seen some 
things that are working, clearly some things that are not 
working.
    What, in your view--some of these things may just be 
negligence or inconsistencies, but do you see any examples 
where maybe some of this behavior seems to be intentional and 
even organized?
    Mr. Maurer. From looking at the 62 cases that we did as 
part of our assessment, we think it derives from a couple of 
different fundamental things.
    One, I think that the statutory carve-out that the FBI has 
had for so many years contributes to a different culture for 
whistleblowers at FBI than may be the case in other agencies 
and departments.
    If, for example, FBI employees had a clearer understanding 
of who they could report to and not risk retaliation or if they 
could report to anyone----
    Senator Tillis. More than just nine.
    Mr. Maurer. More than just nine, right. Exactly. If they 
are treated the way other Federal employees are in the 
executive branch, that could help with that.
    That said, we did not take an independent assessment of the 
individual cases that we reviewed. So we are not in a position 
to say whether anything was intentional or not, but we think 
that changing who FBI employees can report to, doing a clearer 
job of providing training and guidance on whistleblower 
protection would certainly help.
    Senator Tillis. General Horowitz?
    General Horowitz. That is a concern that we generally keep 
in mind as we look at these cases and it is something we are 
looking at in response to Senator Grassley's questions to us 
about the loss of effectiveness questions and the EEO issues 
that he has raised, the more systemic issue which is obviously 
just as important of a concern to us.
    Senator Tillis. Mr. Perkins, in the earlier panel, we were 
talking about how we really do need a top-down cultural change 
with respect to how we--I think that whistleblowers play a very 
important role and many of them--most of them probably should 
be lauded for what they are attempting to do.
    How do you think that we go about, in a meaningful way, a 
systematic way, if you agree that there needs to be some change 
in culture--I guess I should ask that question first--then how 
would you go about doing it in a meaningful, tangible way? Easy 
to say, hard to do.
    Mr. Perkins. Yes, Senator. I think the term change in 
culture has such a broad spectrum, a lot longer than we have to 
discuss. But let me tell you some of the things that I think 
would be very important to, again, bring that knowledge and 
awareness to FBI employees.
    I mentioned in my opening statement the No Fear Act, 98 
percent of our employees have taken it successfully this year. 
In there, it tells you exactly what you need to do and the 
importance of being a whistleblower.
    We are working with the Inspector General's office to 
increase training in the coming years so that we have 
something, at least, on an annual basis where employees know 
that.
    There could be more discussion--for instance, yesterday I 
went to my FBI terminal, looked up on our internal Website, I 
searched the term whistleblower. The very first document that 
popped up was a short, 3-page policy statement that told you as 
an employee exactly what your rights were and exactly what you 
needed to do. That is available to all 35,000 employees.
    So it is a combination of education and awareness, maybe 
not so much a cultural change, depending on the definition of 
what someone define culture as. But I think you go back to 
education and awareness.
    We have very highly skilled, wonderful employees within the 
FBI. We take the best. And you have those employees they want 
to be the best. And so give them that education, give them that 
awareness, and I think you will see a shift in what has been 
described as a cultural issue.
    Senator Tillis. Any comments, Mr. Maurer or Mr. Horowitz?
    Mr. Maurer. Just real quickly, on the training piece, I 
would agree with Mr. Perkins that there were examples of 
training and information that are available to FBI employees 
that clearly spells out what their rights are and what they 
need to do to ensure they are protected.
    But there are other key documents that FBI employees access 
where that is not clearly spelled out. So, for example, the 
FBI's domestic investigations and operations guide talks about 
the need to report potential wrongdoing directly to supervisors 
and chain of command. It is not within the context of 
whistleblowers, but an FBI employee could read that and draw 
some mistaken assumptions about what is protected and what is 
not.
    Those are the kind of things that I think the Department 
and the IG specifically need to work with FBI on, ensuring that 
there is consistency.
    General Horowitz. Senator, I think there are several things 
that can be done. I think first and foremost, messaging from 
the top, but also, frankly, from the middle. Mid-level managers 
touch far more people in every day--in day-to-day interactions. 
And having done compliance work with private organizations 
before becoming Inspector General, that is one of the things 
you work very hard to do, which is to get that message out 
throughout the organization and make sure your mid-level 
managers are echoing what the top managers and the director, in 
this instance, are saying.
    The key is if you look at every study on whistleblowers and 
employees generally, they want to report internally and they 
want to see action taken. They do not necessarily want to run 
to an Inspector General, to an independent organization. They 
want to see their organization fix their problems.
    So there needs to be responsiveness when they do report. 
There needs to be an addressing of the issue we have talked 
about, about to whom those reports should be made and can be 
made, and then there needs to be remediation when problems are 
found, both holding people accountable, but then broadly fixing 
the problems, and those are several steps I think have to be 
considered.
    Senator Tillis. Mr. Chair, if you do not mind, I just have 
one follow-up.
    In the prior panel we were talking about what sort of 
action we may need to take or what additional oversight 
activities we should have. I am curious as to your comments on 
that.
    Then specifically I think in terms of the suggestions for 
maybe legislative action had to do around protecting the report 
to supervisors, focusing more on timeliness and execution, and 
also some sort of independent judicial review.
    The panelists did not get into specifics, but have you all 
heard similar proposals and what are your thoughts on that?
    Mr. Maurer. I think generally those are good topics for 
Congress to consider in amending legislation to address the 
problem.
    Mr. Perkins. Senator, I really cannot take a position one 
way or another. We report these issues to the Department. They 
are the ones who actually handle the investigation and the 
process overall.
    We want to uphold the law as it is stated. So whatever 
position that the Congress feels would fit in that, we will 
carry those duties out.
    General Horowitz. I do think, Senator, that there are two 
clear issues that need to be addressed. One is to whom the 
disclosure can be made. That is something we have long 
supported addressing. And then from the report of GAO, it is 
clear, and from our work, that the adjudication process after 
we finish our work needs to be addressed. It cannot take years 
for people to get their rights vindicated. It just cannot.
    Senator Tillis. Thank you. Thank you, Mr. Chair.
    Chairman Grassley. Senator Tillis, I want to thank you for 
participating, as well. I believe I know that you joined the 
Whistleblower Protection Caucus and I want to thank you for 
doing that.
    Senator Tillis. This is a great Committee, very important 
subject, and I like it when I can go around the horn really 
quickly and get my questions asked. So thank you.
    [Laughter.]
    Chairman Grassley. I am going to have to go probably in 3 
or 4 minutes. So we will adjourn at that point, because of the 
vote that started at 11:38.
    Mr. Perkins, my first question to you, and my lead-in is 
that you have heard me say many times that we cannot expect 
change if people who retaliate against whistleblowers face no 
consequences.
    So two questions, but I will ask them separately. Is 
whistleblower retaliation defined as misconduct at the FBI and 
has anyone ever been punished for it?
    Mr. Perkins. I believe it is defined as misconduct. Our 
inspection division, as well as the Office of Professional 
Responsibility, will do investigations and adjudications of 
those.
    I will have to get back to you as far as has anyone ever 
been held accountable in those ways. I do not know at this 
point.
    Chairman Grassley. And I would ask, at the same time you 
get back with a written response there, a follow-up. Could you 
please provide the written policy, the recommended punishment 
for retaliation, and a description of each time the FBI imposed 
discipline for retaliating against whistleblowers?
    Mr. Perkins. Yes, Senator. We will provide that.
    Chairman Grassley. Now, I suppose of that is hundreds of 
them, I am not sure I want you to list 100, but I do not think 
there has been very much of it, if any.
    Mr. Perkins. We will be in contact with your staff and 
provide that, sir.
    Chairman Grassley. Thank you. And for you, Mr. Horowitz, 
even when your office finds that there has been retaliation 
against a whistleblower, as far as I know, that is not the end 
of it.
    So how often has your office substantiated a claim, but the 
case continues in internal appeals because the Department 
disagrees? Mr. Horowitz. If I recall correctly, since 2005, we 
have found--if you give me a minute, I think I may have the 
numbers. I believe it is about six, but I will double check 
those numbers and get back to you.
    Chairman Grassley. And then a follow-up. Should the 
Department have to defer to your independent investigative 
findings and if not, what is the point of having your office do 
an independent review?
    General Horowitz. Well, I have asked that question on a 
number of occasions in a number of areas and, obviously, the 
reason we do an independent review is so that there is an 
independent arbiter or fact-finder, but there is a disciplinary 
process and an adjudicative process that goes on after that. 
And under the rules, we hand it off at that point. Chairman 
Grassley. Mr. Maurer, this will probably have to be my last 
question. The Department has recommended protecting disclosures 
made in second in command of a field office, but has declined 
to protect disclosures to others in the chain of command. What 
reasons did the Department and the FBI give for refusing to 
protect disclosures made to direct supervisors and did you find 
any evidence to support that reasoning?
    Mr. Maurer. During the course of review, we asked this 
question many times and what we heard from the Department of 
Justice was that they felt that by proposing to add additional 
members to this list of the nine that is already existing would 
give FBI employees sufficient numbers to report potential 
retaliation complaints.
    Our perspective is that we still remain concerned that FBI, 
even if this is implemented, and it has not been implemented 
yet, even if it is implemented, it still makes FBI an exception 
to the rest of the executive branch.
    There are other law enforcement agencies, there are other 
intelligence agencies where their staff can report to front 
line supervisors potential retaliation, and it is just not 
clear to us really why FBI is different.
    Chairman Grassley. And then a follow-up to you. How are the 
protections for FBI whistleblowers different from other Federal 
employees and did you find any compelling reason to justify 
giving FBI whistleblowers weaker protections?
    Mr. Maurer. I think the biggest area where there is a 
difference is this issue of who they can report to and still 
remain protected against retaliation. That was the central 
issue. It was cited in a number of the reasons why potential 
claims of whistleblower retaliation were not acted upon was 
because they simply talked to the wrong person.
    That is not the case with the intelligence community and it 
is not the case in the rest of the executive branch.
    Chairman Grassley. I am going to have to adjourn the 
meeting now. I thank you for participating, but also since you 
have heard the word culture used and it does not apply just to 
the FBI, it applies to a lot of--maybe every agency, to some 
extent, against whistleblowers. They are kind of treated like a 
skunk at a picnic. I hope you will do all you can to reverse 
that.
    Thank you all very much.
    [Whereupon, at 11:48 a.m., the hearing was adjourned.]
    [Additional material submitted for the record follows.]

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