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Whistleblower Protection Laws Specifically Exempt FBI Employees

Photo by Chip Somodevilla/Getty Images

Kerry Picket Political Reporter

Rank-and-file FBI and intelligence employees have less protection under whistleblower protection laws passed by Congress.

That’s why sources told The Daily Caller last month that FBI workers want Congress to issue subpoenas to compel them to testify about problems within the bureau.

In 2016, Congress passed the FBI Whistleblower Protection Enhancement Act in an effort to give better protections to bureau personnel, but several proposed reforms for FBI personnel protections were excluded from the bill before it went to President Obama’s desk.

David Colapinto, general counsel of the National Whistleblower Center, told The Daily Caller Tuesday the FBI has a long history of being able to circumvent congressional oversight.

“If a federal manager is found guilty of retaliating against an employee, there are provisions that allow the Office of Special Counsel to institute a proceeding against that individual to remove them from the public service or the federal service,” Colapinto said.

He continued, “That does not apply to the FBI because the FBI is exempted from the normal civil service rules and has equivalent rights with respect to reporting and anti-retaliation, but it’s not to hold managers accountable. It’s just the way the Congress has exempted or given special treatment to the FBI and to intelligence agencies. They’re not uniform rules.”

Colapinto points out that, historically, the FBI and other intelligence agencies have been “highly resistant to oversight by Congress.”

“When we were representing Fred Whitehurst one of the first modern whistleblowers to come forward from the FBI they were threatening him with jail with criminal prosecution for talking to his lawyers or going to Congress,” Colapinto recalled.

Whitehurst, a former FBI agent, settled with the bureau after the agency agreed to pay him more than $1.16 million after he came forward to report flawed scientific work at the FBI’s crime laboratory.

“There was not a single regulation or policy in place implemented by the Department of Justice or the president or anybody else to afford FBI employees whistleblower rights. It took a lawsuit by Fred Whitehurst the first modern FBI whistleblower to sue President Clinton,” Colapinto said.

He went on to say, “And in order to avoid the federal court ordering the president under that statute to implement the law, the Clinton administration decided to execute a presidential order to order the attorney general to implement those rules. And that’s where we are today. It has since been updated one time after the whistleblower enhancement protection act was enacted in 2012. They then excluded the FBI because there were actually efforts in Congress to weaken the already weak FBI whistleblower protections.”

The process has changed much in the last 25 years as a result of Senate Judiciary Chairman Charles Grassley’s work on the issue.

“That was virtually nonexistent for the FBI prior to the 1990s. You can say the same thing about virtually every FBI director since J. Edgar Hoover going back to Louis Freeh. You might remember there were a lot of scandals in the FBI. The Atlanta Olympics and [Richard Jewell] and there was Ruby Ridge,” said Colapinto noting there are more options for agents today to report wrongdoing than there were in the 1990s.

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