he first time I ever heard former FBI director James Comey described as a “whistleblower,” I chuckled to myself. After thinking about it, though, I concluded that, in a way, Comey actually is a whistleblower. The legal definition of a whistleblower is “any person who brings to light evidence of waste, fraud, abuse, illegality, or threats to the public health or public safety.” So I guess, technically, Comey fits the bill.
But be that as it may, the truth is that Comey is the enemy of whistleblowers, or at least of national security whistleblowers. He proved that throughout his short tenure at the FBI, where he made life for whistleblowers miserable, despite being warned repeatedly by the Senate Judiciary Committee that the FBI was not in compliance with current whistleblower protection laws.
Indeed, a Senate Judiciary Committee report published last year found that the FBI routinely takes action against employees who expose wrongdoing in the Bureau. The report found that “whistleblowers play a critical role in keeping our government efficient and honest, yet they also risk retaliation from their employer, sometimes being demoted, reassigned, or fired as a result of their actions.”
Congress last year passed a new whistleblower protection law, which, while exempting other national security whistleblowers from its protections, covered FBI employees. The legislation sought to “expand reporting opportunities for whistleblowers, improve the lengthy and opaque adjudication process, and strengthen protection for employees who expose bureau waste, fraud, and abuse.” But it didn’t turn out that way.
A normal whistleblower “chain of command” is to report wrongdoing to one’s supervisor. If the whistleblower gets no satisfaction there, he or she is then supposed to go to the Inspector General, the General Counsel, and, ultimately, the Congressional oversight committees. It’s something that government employees are taught during their first day on the job.
A Government Accountability Office report found, however, that the FBI did not include supervisors in the “list of approved officers” to whom a whistleblower could report. The result, according to Senate Judiciary Committee chairman Sen. Chuck Grassley (R-Iowa), was that “FBI employees have long faced vague and confusing rules for how to properly disclose problems because of the FBI’s unusual exemption from the normal whistleblower protections for other federal employees. The confusion and lack of an independent process has landed too many people in hot water for simply telling the truth.”
That’s exactly what happened to FBI supervisory agent Darin Jones. Jones reported evidence of procurement improprieties to his supervisor and was promptly fired. He appealed, of course, but he was not reinstated because he had made his complaint to his supervisor and not to one of the nine people on the FBI leadership-approved list of who could hear a whistleblower complaint. Jones’s appeal has entered its fourth year. There’s no end in sight. This is a violation of the law and is exactly what the GAO and the Judiciary Committee complained about.
The FBI’s illegal behavior hasn’t been lost on Grassley. He wrote to Comey on April 14, saying that “the FBI’s official whistleblower policy directive still does not reflect changes to the law. It was apparently last reviewed on February 19, 2017 and still posted on the FBI’s internal system as of yesterday—nearly four months after the FBI WPEA (Whistleblower Protection Enhancement Act) became effective. Yet, it erroneously tells FBI employees that they are only protected for disclosures to the certain, specific officials that could receive protected disclosures before the new law.” Grassley demanded that the Comey correct the record and issue a new policy statement immediately. There is no indication that he did so before being fired by President Trump.
I have mixed feelings about Comey (and about special counsel and former FBI director Mueller, for that matter. It was Mueller who was FBI director when I was investigated and charged with five felonies after blowing the whistle on the CIA’s torture program). Comey is getting ready to provide a public service in the coming days. He’s going to talk about Trump, Trump’s people, and the Russians. With any luck, he’ll bring this president down.
But when Comey finally testifies on Capitol Hill about his investigation into Trump’s involvement with the Russians, let’s remember that he is not the American hero the press is making him out to be. He’s the enemy of transparency. We can still hope, though, that whistleblower or not, he does the right thing.
John Kiriakou is a former CIA counterterrorism officer and a former senior investigator with the Senate Foreign Relations Committee. John became the sixth whistleblower indicted by the Obama administration under the Espionage Act – a law designed to punish spies. He served 23 months in prison as a result of his attempts to oppose the Bush administration’s torture program.
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