Michael R. Bromwich
Inspector General, U.S. Department of Justice
House Permanent Select Committee on Intelligence
H.R. 3829: The Intelligence Community Whistleblower Protection Act of 1998
June 10, 1998
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Mr. Chairman, Ranking Democratic Member Dicks, and Members of the Permanent Select Committee on Intelligence:
I appreciate the opportunity to appear before the Committee this afternoon to discuss H.R. 3829, legislation that seeks to promote and protect the reporting of so-called "whistleblower" allegations to Congress about problems within the Intelligence Community. Before I do so, I want to express my gratitude to the Chairman and the Committee for the strong support they have shown over the years for Inspectors General. As you may know, this year marks the 20th anniversary of the passage of the Inspector General Act. It is fitting, therefore, that H.R. 3829 recognizes the expertise of the IG community to do what we do best - investigate allegations of serious problems, abuses, or violations of law within our respective agencies.
The legislation under discussion today would create a procedure that employees of specified intelligence agencies would follow in order to bring to the attention of Congress complaints or information about intelligence activities that involve classified information. H.R. 3829 specifies the Federal Bureau of Investigation (FBI) as such an intelligence agency.
Under the legislation, the OIG is charged with investigating relevant allegations and forwarding to the agency head for transmittal to the House and Senate Intelligence Committees an assessment of their credibility. In the exceptional case, the agency head may decide not to transmit the IG's report to the intelligence committees in order to protect vital law enforcement, foreign affairs, or national security interests. If this occurs and the agency head invokes the legislation's "holdback" provision, she must promptly notify the committees of her action. If we find the allegations not credible, the employee may bring the complaint directly to the intelligence committees through a procedure outlined in the legislation.
To put this issue in its Department of Justice context, during my four years as Inspector General I have not been made aware of any cases involving FBI employees who have raised allegations of wrongdoing on a matter that would be implicated by this legislation. This may in part be attributable to the fact that the FBI has its own internal investigations entity - FBI Office of Professional Responsibility (OPR) - and that the circumstances under which FBI employees may bring whistleblower complaints to the OIG has undergone substantial changes recently. My testimony today, therefore, is based on an analysis of the proposed legislation and represents my best assessment of how workable such a system might be, rather than from any body of substantial experience investigating classified whistleblower allegations. To date, we simply have not seen these types of cases in the Department of Justice OIG.
In my testimony I plan to do three things: first, describe the existing procedures within the FBI and OIG for investigating whistleblower allegations; second, assess the workability of H.R. 3829; and third, conclude by commenting on several specific issues raised by the legislation.
FBI Whistleblower Allegations
The OIG investigates alleged violations of criminal and civil laws, regulations, and ethical standards arising from the conduct of DOJ employees or contractors. Such allegations come from a variety of sources, including other DOJ employees, the public, federal and state law enforcement agencies, and members of Congress.
Generally, allegations of serious misconduct raised by employees of the FBI are reported to the FBI-OPR. If we receive an allegation involving an FBI employee, we refer the matter to FBI-OPR unless we seek and obtain the Deputy Attorney General's permission for the OIG to conduct the investigation. The FBI is required to provide contemporaneous notice to the OIG of all allegations of serious criminal conduct and serious administrative conduct regarding its senior employees and all work-related serious criminal conduct (except travel voucher fraud or false statements) regarding their other employees. The OIG and FBI notify each other of the existence of criminal investigations that fall within their concurrent jurisdiction to investigate crimes involving the operations of the Department, except where such notification could compromise the integrity of an investigation.
The bottom line: FBI-OPR currently investigates most, if not all, complaints raised by and against FBI employees. This legislation would alter the status quo for a narrow class of complaints: allegations of flagrant problems or abuse involving intelligence activities that the employee wants to bring to Congress' attention. If H.R. 3829 is enacted, these cases would be investigated by the OIG rather than FBI-OPR.
FBI employees are exempt from the protections of title 5, sections 1214 and 1221 that provide federal employees with access to the Office of Special Counsel to investigate alleged prohibited personnel practices. Furthermore, FBI employees generally do not have individual rights of action before the Merit Systems Protection Board, a recourse afforded most other federal employees who allege reprisal by management for raising complaints of misconduct.
Instead, FBI employees are covered by a policy developed by the Department of Justice pursuant to a delegation of authority from the President to the Attorney General in April 1997 to provide protections for FBI whistleblowers "in a manner consistent with applicable provisions of sections 1214 and 1221 of this title." This directive was provided to the Attorney General within days of the OIG's publication of its report on the FBI Laboratory.
The policy, approved by the Attorney General, provides that disclosure of information by an FBI employee that the employee reasonably believes evidences a violation of any law, rule, or regulation, or mismanagement, gross waste of funds, an abuse of authority, or a substantial or specific danger to public health or safety are protected disclosures and may be reported to the OIG, DOJ-OPR, or FBI-OPR. The OIG and DOJ-OPR refer such allegations to FBI-OPR for investigation unless the Deputy Attorney General determines that such a referral should not be made. However, allegations of retaliation against an FBI employee who makes a protected disclosure are reported to the OIG, DOJ-OPR, or the Deputy Attorney General.
Workability of Legislation
Addressing the question of the "workability" of H.R. 3829 from an Inspector General's perspective, I see no impediment to the process outlined in the legislation. The bill directs us to investigate allegations of a flagrant problem, abuse, or violation of law or Executive Order, false statement to Congress, or reprisal. As I mentioned at the outset, this simply adds additional jurisdiction to one of the core functions of the DOJ-OIG: investigating allegations of waste, fraud, abuse, and misconduct. The 60 days afforded IGs under the Act for an initial determination of the credibility of the allegation ordinarily should provide us enough time to develop a preliminary assessment of the allegation's credibility, which is the type of "soft filter" that I understand to be the objective of the legislation. The additional role of serving as a conduit for an employee who wants to contact the intelligence committees directly because they are dissatisfied with the IG's assessment of their allegation does not appear burdensome.
As I understand the legislation and its interplay with Department policy, FBI-OPR would be required to send to the OIG for investigation any allegation from an FBI employee 1) who wants to bring it to the attention of Congress (as opposed to merely bringing it to the attention of FBI or DOJ management); and 2) concerns an issue that falls under the bill's definition of "urgent concern." If both criteria are met, then FBI-OPR would be required to forward the allegation to the OIG.
In preparing for this hearing, we contacted FBI-OPR and asked its managers to provide an estimate of the number of "whistleblower" allegations they receive annually, and how many might fall under H.R. 3829's definition of "urgent concern." According to the FBI, 499 new allegations of "serious misconduct" were received in fiscal year 1997 (serious misconduct includes criminal behavior or serious allegations such as driving while intoxicated, unauthorized disclosure of information, sexual harassment, and alcohol and drug related misconduct). Another 518 new allegations of "routine misconduct" were also reported in fiscal year 1997 (this includes minor violations such as lost government property, absences without leave, insubordination, and verbal altercations).
FBI-OPR reports that ten of the investigations listed under the "serious misconduct" category are cases of unauthorized disclosure of classified information. However, none of these cases involved an employee attempting to report wrongdoing to Congress about an intelligence activity. Consequently, the allegations would not meet H.R. 3829's definition of an "urgent concern"
Again, because the OIG has not worked cases of the kind envisioned by H.R. 3829, it is rather easy for me to say that the 60-day review period and other requirements of the legislation pose no implementation problems. I certainly cannot exclude the possibility that the legislation may encourage FBI whistleblowers who wish to bring classified information to the attention of Congress from coming forward for the first time whereas in the past they did not feel free to do so. Naturally, if the OIG began to receive numerous allegations dealing with intelligence activities involving classified information, our already strained investigative resources might be pushed past the breaking point. But I do not envision this occurring, given the relatively narrow universe of cases that would fall under the legislation's definition of "urgent concern."
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I close with three final thoughts on the legislation.
First, many Department of Justice employees work with classified information pertaining to an intelligence activity on a routine basis. However, H.R. 3829 applies solely to the FBI and this strikes me as odd and incomplete.
Second, the legislation requires notification to Congress of both the substantive allegation of a "serious or flagrant" problem within an intelligence activity as well as any reprisal or threat of reprisal stemming from an employee's reporting of the allegation. It is important to protect employees who bring such complaints to the attention of management or the OIG. The threat of reprisal against a whistleblower is real. Furthermore, the perception that potential whistleblowers will be subjected to a reprisal by management is also real. This legislation is appropriately tailored to address both the perception and the reality of reprisals.
Finally, I understand that some members of this Committee want to afford employees of Intelligence Community agencies multiple avenues to bring allegations of serious or flagrant problems to the attention of Congress. As long as the constitutional, national security, and law enforcement interests of the federal government are recognized by the legislation and respected by the employee, then the issue of whether an exclusive avenue exists is less important to me. As Inspector General, my concern is in investigating the allegation however it comes to our attention.
I would be pleased to answer any questions the subcommittee may have. Thank you.