Support Bill That Would Create a Free Speech Shield for FBI Whistleblowers

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Update: A truncated version ofhe FBI Whistleblower Protection Enhancement Act passed Congress and was signed into law on December 16. The bill that passed was significantly weakened, but it does close the loophole that punished FBI agents for reporting wrongdoing to their supervisors, rather than to a “specially designated” official. Read more at the National Whistleblower Center.

Given the FBI’s fear of dissent, it is no wonder that the agency denies basic rights and protections to whistleblowers who speak out to expose waste, fraud and abuse within the agency.

Whistleblowers within the FBI have exposed thousands of illegal national security searches, systemic weaknesses in the counterterrorism program, civil rights abuses, and the FBI’s role in numerous wrongful convictions of innocent Americans.  These whistleblowers must be protected from retaliation.

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The FBI Whistleblower Protection Enhancement Act (S 2390) will put mechanisms in place to protect public servants at the FBI from adverse employment actions for challenging abuses of power that betray the public trust.

The bill would transform the agency’s current whistleblower “rights” from a trap to a credible free speech shield by:

* Expanding coverage to all relevant witnesses, including applicants for employment or new positions;

* Closing loopholes that previously excluded protection for disclosures to supervisors, within the chain of command and to Congress;

* Granting authority for the Office of Inspector General to obtain temporary relief against retaliation through “stays” while an appeal proceeds;

* Establishing parity for protected activity with the WPA to cover the full scope of relevant misconduct, including illegality, gross waste, gross mismanagement, or a substantial and specific danger to public health or safety;

* Increasing transparency into how the Act works in practice, through publication of its track record ranging from the number of cases filed and completed, to the whistleblowers’ won-loss record;

* Commissioning independent review by the Government Accountability Office of the Act’s track record, to facilitate further improvements based on lessons learned;


* Providing parity with the Whistleblower Protection Act in many critical respects, including by:

• protecting FBI employees who refuse to violate the law;

• affording employees the right to seek due process remedies if the Office of Inspector General (OIG) has not issued a ruling within 120 days;

• establishing identical burdens of proof for all fact-finding under the Act;

• conferring the right to independent due process before an Administrative Law Judge;

• fostering due process rights generally by requiring the publication of decisions on whistleblower complaints; and • adopting the Administrative Procedures Act’s requirements for judicial review

Thanks to our friends at the National Whistleblower Center and Government Accountability Project for help with this alert