Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

The NWC and ACLU also presented a briefing paper at the meeting listing 14 specific recommendations that are needed to improve the DOJ regulations on whistleblower rights for FBI employees. A copy of the briefing paper can be found here. 

Among the most important recommendations are changing the definition of what is a “protected disclosure” to protect FBI employees from retaliation who report wrongdoing to supervisors and for reporting through their chain of command, providing for reasonable deadlines for rulings and decisions in cases, in order to avoid the administrative delays that currently plague the program, appointing statutory Administrative Law Judges who are independent, publishing decisions in FBI whistleblower cases and making remedies and other provisions consistent with recent reforms enacted last November in the Whistleblower Protection Enhancement Act.

The Attorney General’s report to President Obama is due in April of this year. Thereafter, we expect the DOJ will announce changes to its current regulations on whistleblower protections for FBI employees through rulemaking, which will provide an opportunity for the public to submit comments on proposed rule changes.

The DOJ’s whistleblower program was non-existent in the 1990’s when Frederic Whitehurst blew the whistle on the FBI crime lab. Even though Congress had enacted a special provision within the Whistleblower Protection Act of 1989 to require the President and Attorney General to implement regulations and enforce whistleblower rights for FBI employees (5 U.S.C. § 2303), the government refused to create any FBI whistleblower program, as required by law, until after Fred Whitehurst sued President Clinton and Attorney General Reno alleging whistleblower retaliation in 1995. During the midst of that lawsuit, President Clinton ordered the Attorney General to finally create the program that Congress required be implemented in 1989.

Since the DOJ regulations were created in 1998 there have been continual problems in enforcement and many complainants have complained of administrative delay and program ineffectiveness. In addition, none of the decisions of the DOJ are published giving the FBI a distinct advantage in litigating claims to defeat FBI whistleblowers.

As a presidential candidate, Barack Obama promised to “strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government.” See Scott Horton's prior article in Harper's Magazine, discussed in this prior blog post.  He also pledged to the National Whistleblowers Center that he would support legislation to give federal employee whistleblowers the remedies and procedural protections they have under Title VII (which includes a right to jury trials). But last May, The New York Times described how “the Obama administration is proving more aggressive than the Bush administration in seeking to punish unauthorized leaks.” Moreover, the Obama administration has shown its hostility to whistleblowers with (1) its preoccupation with stopping WikiLeaks, (2) prosecuting the group for publishing classified information, targeting WikiLeaks supporters with invasive harassment, (3) even serving subpoena on the Twitter accounts of several WikiLeaks associates, (4) its prosecutions of Thomas Drake and Bradley Manning, and (5) the failure to grant clemency to Brad Birkenfeld.

According to a new article by Scott Horton published in Harper's Magazine, Obama’s real policies are exposed in documents filed in the prosecution of former CIA agent James Stirling who was the alleged source behind the reports published by James Risen.ii In particular, one chapter in Risen’s book describes how a double agent turned on the CIA, after having disclosed the flaws built into some technical drawings designed to be worthless and which the agent had delivered to the Iranians. Thus, the CIA operation had actually advanced Iran’s nuclear project.

To justify the prosecution of Sterling, the DOJ contends that the disclosure harmed national security. But according to Scott Horton, the decision to go after Sterling seems to have more to do with “his violation of the intelligence community’s code of omertà, under which no agent ever speaks about another’s mistakes.”

In addition, Sterling’s defense lawyers, Ed MacMahon Jr. and Barry Pollack, revealed that the prosecution has turned over various telephone records showing calls made by Risen. The prosecution has also provided three credit reports for Risen, and has produced his credit card and bank records and certain records of his airline travel.

The revelation alarmed First Amendment advocates, particularly in light of Justice Department rules requiring the Attorney General to sign the subpoenas directed to members of the media and on requests for their phone records. Eric Holder had pledged that subpoenas issued against reporters would need the Attorney General’s approval. The question raised by Horton is the following: did Holder approve the Department’s secret seizure of Risen’s personal records?

In addition, Risen was subpoenaed to appear before a grand jury to testify about his sources. Last year, U.S. District Court Judge Leonie Brinkema quashed the subpoena. According to Horton, it looks like the Justice Department circumvented the ruling of a federal judge and grabbed Risen’s records even after its subpoena had been quashed.
The conclusion of the story is that the Justice Department asserts that it has weighed the people’s right to know, embodied in the Constitution, against the “right” of CIA officials “not to be embarrassed through the public disclosures of their mistakes,” and apparently the latter is the most important according to the DOJ.

Intern Julia Benke wrote this blog article.

The street crime-fighting record of Sheriff Wells was praised, but there were a number of allegations over the years that he mixed public and private business. Sheriff Wells was an advisor to Florida governor Jeb Bush. When George W. Bush appointed a new U.S. attorney, Paul I. Perez, Wells met with Perez to express his “opinion that Mr. Del Fuoco needed to be closely supervised.” According to the St. Petersburg Times “given the history of investigation into the Sheriff’s Office, Perez’s visit put him in a position where it could have appeared he was being influenced by Wells, an expert on legal ethics says.”

In 2002, Del Fuoco was still working on the sheriff’s case, but was spending most of his time investigating corrupt police officers in another city. So, when he discovered a black vehicle watching his home he assumed that it was as a result of that case. However, it was quickly discovered that a Manatee sheriff’s employee had run Del Fuoco’s tag numbers through the Florida Crime Information Center (FCIC) computer in order to get his home address and other personal information. Del Fuoco, concerned for his family, repeated asked Perez for protection, but received nothing for those efforts.

Out of frustration that the DOJ had done nothing to protect his family, Del Fuoco filed a lawsuit against the Sheriff and some of his employees for illegally accessing law enforcement data to retaliate against him for prosecuting Delta Squad members. The lawsuit “ helped poison Del Fuoco’s relations with supervisors, who felt he had acted rashly.” Del Fuoco’s lawsuit also helped spur more allegations involving the Manatee Sheriff’s Office to be reported to the U.S. Attorney’s Office. However, in May 2003, Del Fuoco was transferred from the criminal to civil division, all contemporaneous with filing a lawful complaint of whistleblower retaliation with the U.S. Office of Special Counsel (OSC). Del Fuoco considered his demotion to be in retaliation for filing the lawsuit against the politically connected sheriff. In fact, shortly after Del Fuoco was removed from the investigation into Sheriff Wells the investigation of Wells was dropped and the investigators were told that since Wells “swings a big bat,” there “would be no further investigations targeting him.” Del Fuoco resigned his position at the DOJ in August 2005.

Please click here to read a letter dated April 26, 2004 from Attorney Stephen M. Kohn to former Attorney General John Ashcroft detailing the improper and illegal harassment suffered by Mr. Del Fuoco and his family.

The National Whistleblowers Center hopes that the Senate Judiciary Committee conducts a full investigation into whether or not nominee Robert E. O’Neill retaliated against whistleblower Jeffery J. Del Fuoco for having the guts to stand up to a corrupt, politically connected sheriff. If the committee concludes that O’Neill illegally retaliated against a whistleblower, then they should not approve of his nomination.

Related Articles:

“Robert O’Neill nominated for U.S. attorney” St. Petersburg Times, June 9, 2010

“Was Manatee sheriff a target of prosecution or persecution?” St. Petersburg Times, March 29, 2008

“Former Manatee County sheriff merits closer scrutiny” St. Petersburg Times, April 4, 2008

April 26, 2004 letter from Attorney Stephen M. Kohn to former Attorney General John Ashcroft

The agreement with UBS was only for a small portion of the names of tax cheats and the fine was a drop in the bucket compared to the entire $20 billion dollar illegal program.  In order to overcome the damage done by the Department of Justice's prosecution of the whistleblower, Bradley Birkenfeld, the IRS and President Obama should follow the intent of the law and issue Mr. Birkenfeld his reward and immediately commute his prison sentence."

I am worried that the Internal Revenue Service ("IRS") is doing next to nothing to identify tax evasion by U.S. taxpayers utilizing these accounts while waiting for ratification of the treaty.

It seems this information [provided by Mr. Birkenfeld] would allow the IRS to trace individuals in the U.S. that had UBS bank accounts…  Using this information to identify U.S. clients would appear to be more productive than simply pursuing agreements and treaties with the Swiss, especially since those avenues seem limited to specific individuals. 

Today's vote in Switzerland only underscores the need for the IRS to encourage whistleblowers to come forward.  Mr. Birkenfeld blew the whistle on just one bank. What is the IRS doing to encourage more whistleblowers to come forward about offshore bank accounts?

As we have written before, the U.S. Justice Department admitted in court proceedings that "but for Mr. Birkenfeld" the illegal $20 billion tax evasion "scheme" by the Swiss banking giant UBS "would not have been discovered by the U.S. government."  Despite his historic contribution toward enforcement of tax laws, Mr. Birkenfeld remains the only banker prosecuted and incarcerated by the U.S. government.

The U.S. Senate estimates that $5-7 trillion in tax revenue is lost in undeclared offshore bank accounts. There must be consistent policies regarding the treatment and encouragement of whistleblowers throughout the U.S. government. It is our hope that Senator Grassley’s letter will encourage a full evaluation of how Mr. Birkenfeld’s information was used (or misused), the prosecution of the high-level UBS officials who initiated and planned the $20 billion tax evasion scheme, and justice for all honest American taxpayers.

It remains imperative that those who support whistleblowers, accountability and transparency continue to send letters in support of Mr. Birkenfeld’s clemency campaign. His prison sentence continues to have a chilling effect on all international bankers who posses similar information.