Homeland Security


1997 Congressional Hearings


TESTIMONY OF STEPHEN M. KOHN

Attorney for Dr. Frederic Whitehurst



Good morning. My name is Stephen M. Kohn, and I am an attorney for Dr. Frederic Whitehurst. Thank you very much for inviting Dr. Frederic Whitehurst to testify before the U.S. House of Representatives Committee on the Judiciary, Subcommittee on Crime. As counsel for Dr. Whitehurst in litigation currently pending in the U.S. District Court for the District of Columbia, we are submitting this testimony on his behalf.


DR. WHITHURST'S BACKGROUND AND PERFORMANCE


Dr. Whitehurst has been an employee of the Federal Bureau of Investigation ("FBI") since 1982. Prior to joining the FBI, he volunteered for three active combat tours with the Army during the Vietnam War. He received a number of military honors while serving in Vietnam, including four Bronze Stars and the Army commendation medal. He was also offered, but declined to accept, a Purple Heart. His war record was summarized by his commanding officers in his official military performance rating:


WHITEHURST is a truly outstanding soldier. His knowledge and ability have been demonstrated time and again. . . . He energetically applies himself to all duties and promptly and efficiently completes them. Devoted and personable, he stands out above personnel one and two grades above his.


Exhibit 1, ENLISTED REPORT (September 18, 1971).


In addition to his army commendations, at the age of 17 he was awarded the Navy-Marine Corps Medal for Heroism for risking his life to save a person drowning in a frozen lake. It is our understanding that at the time of the award he was the youngest person ever to obtain this honor. Exhibit 2 (newspaper article appearing in the January 17, 1965 edition of The Virginian-Pilot).


After his honorable discharge from the military, Dr. Whitehurst obtained a B.S. degree in Chemistry in 1974 from East Carolina University and in 1980 received a Ph.D. in Chemistry from Duke University Graduate School. He then performed post-doctoral research in chemistry at Texas A&M University from 1980 to 1982.


In 1981 Dr. Whitehurst applied for a position as a Special Agent with the Federal Bureau of Investigation (FBI). He was subjected to extensive pre-acceptance testing and background screening. He was "ranked" 69 out of the "2152 applicants in the system who were qualified for selection" as an FBI agent. Butler to Revell (January 27, 1982), excerpt attached as Exhibit 3. In addition, of the 52 "qualified Science applicants" he was rated number three. Id. The background screening found him to be "an outstanding person whose character, reputation, associates and loyalty are unquestionable." Id. The FBI noted that he was "thorough" and "would not quit when the chips were down." He was praised for having "high standards" and for his "commitment to this country." Id.


Dr. Whitehurst accepted an offer of appointment to the New Agents Class convening on February 22, 1982. He successfully completed his training as an FBI agent and was assigned to the field upon graduation from the FBI Academy. On June 6, 1989, Dr. Whitehurst was promoted to a position within the FBI Crime Lab in Washington, D.C. as a Supervisory Special Agent. Until 1996, Dr. Whitehurst worked as a chemist and an explosives bomb residue analyst in the FBI Materials Analyst Unit. His performance reviews and numerous letters of commendation demonstrate that Dr. Whitehurst's performance within the Crime Lab was exceptional. See Exhibit 4 (the cover pages of all of Dr. Whitehurst's official performance reviews from 1989-1995) and Exhibit 5 (a sampling of letters of commendation Dr. Whitehurst received between 1989-95).


Dr. Whitehurst's 1993 performance review accurately reflects his contributions to the FBI during the course of his employment:


Through SSA Whitehurst's exceptional dedication, perseverance and analytical abilities, the Unit has been able to respond to important cases, crime scenes and special events in a timely, very professional manner... No other matter of greater importance than the World Trade Center bombing investigation offers a better example of SSA Whitehurst's exceptional ability to get the job done under the most extreme, stressful, high visibility circumstances....


Exhibit 6, Declassified Performance Review of Dr. Whitehurst, executed by two levels of supervision on October 13, 1993.


In this performance review the FBI recognized that Dr. Whitehurst's scientific knowledge in the area of explosives residues was "unequaled in any other laboratory." The FBI properly considered him a "very valuable asset." The review stated as follows:


SSA Whitehurst has acquired a tremendous amount of experience, developed contacts throughout the world in the scientific community, and currently possesses skills in the forensic analyses of explosives and explosives residues which is unequaled in any other laboratory. He is a very valuable asset to the FBI Laboratory.


Exhibit 6, Declassified 1993 Performance Review of Dr. Whitehurst


As set forth in Exhibit 6, Dr. Whitehurst was considered by the FBI to be its most highly qualified bomb residue examiner and explosives expert between 1989 and 1995. As recently as April 17, 1995, just two days before the bombing of the federal building in Oklahoma City, Oklahoma, the FBI again evaluated Dr. Whitehurst and found that his expertise in the "chemistry of explosives and explosives residues is rivaled by no one else in the [FBI] Laboratory." See, Declassified 1995 Performance Review of Dr. Whitehurst (executed by first and second line supervisors on April 10, 1995 and April 17, 1995, respectively).


At the time Dr. Whitehurst joined the Crime Lab, he began raising concerns about scientific misconduct within the FBI. He raised these concerns with his supervision, the FBI Office of Professional Responsibility ("OPR"), the Director of the FBI, the Department of Justice ("DOJ") Office of Inspector General ("OIG") and other administrative units within the DOJ and FBI. In spite of severe criticism from the DOJ and FBI for raising "indications" of misconduct, Dr. Whitehurst's "whistleblowing" did not impact on his actual work performance or his ability to perform exceptionally as a scientist. For example, on December 28, 1995 Dr. Whitehurst received his last performance review as an employee of the Crime Lab. Despite having provided public testimony critical of the FBI's conduct in the World Trade Center case, having been publicly identified as a "whistleblower" as a result of publicity surrounding the O.J. Simpson case and having been involuntarily transferred from all duties within the Crime Lab, he was still rated "exceptional" or "superior" in every performance category.


REPORTING REQUIREMENTS FOR FBI AGENTS


There are a number of regulations and an Executive Order which govern the reporting requirements of FBI agents. Dr. Whitehurst was fully familiar with these requirements and based his reporting activities on these various rules and regulations. These regulations required Dr. Whitehurst to report "indications" of "possible" misconduct, even if these indications were based on hearsay. In addition, these regulations require all FBI agents to "over-report" indications of misconduct. Dr. Whitehurst's reporting activities were fully consistent with these requirements. The FBI and DOJ, which have been highly critical of Dr. Whitehurst's reporting activities, have failed to properly apply the disclosure requirements when reviewing Dr. Whitehurst's conduct. For example, the Inspector General's report did not even cite to these mandatory disclosure requirements, let alone properly apply the regulations.


Executive Order 12731 ("EO"), was signed into law by President George Bush on October 17, 1990, and established standards of conduct for federal employees. Exhibit 7. The Office of Government Ethics (OGE) implemented a formal rule concerning this EO which covered all federal employees, including FBI agents. The U.S. Department of Justice (DOJ) circulated a copy of the EO and the OGE rules to every employee of the DOJ and FBI, including Dr. Whitehurst. Exhibit 7. The importance of complying with EO 12731 was emphasized by the DOJ in a cover memo attached to the material: "These standards apply to all Department of Justice employees. Please read and retain them for future reference." Exhibit 7, Excepts from the U.S. Department of Justice "This Package Contains Important Ethics Materials, etc.," (undated).


Dr. Whitehurst, in compliance with DOJ requirements, read EO 12731 and the explanatory notes which clarified the meaning of the EO. Thereafter, he acted in accordance with these standards of conduct.


In relevant part, EO 12731 states: "Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities." Exhibit 7, quoting from Executive Order 12731, Part I Section 101(k)(emphasis added). The EO placed all FBI agents under a mandatory duty to report allegations of misconduct to the "appropriate authorities." Pursuant to this obligation Dr. Whitehurst made disclosures to the FBI OPR, the Director of the FBI, the FBI General Counsel and the DOJ. These reporting activities were required under the mandate of EO 12731.(1)


A specific concern was raised over the existence of "conjecture" contained in some of the letters Dr. Whitehurst filed with the OIG. This concern is without merit. The explanatory notes interpreting Executive Order 12731, written by the Office of Government Ethics ("OGE") and included as part of the final rule making governing the Executive Order, clarifies that even "conjecture" is protected under the mandates of EO 12731. These comments make explicit what is implicit in the Executive Order -- that federal employees had a duty to "over report" indications of misconduct and that the appropriate authorities would determine whether allegations were "spurious." The OGE explained this reasoning as follows:


Five agencies suggested changes to § 2635.101(b)(11) [the OGE Code of Federal Regulations provision which incorporated the requirements of Executive Order 12731, Part I Section 101(k)], the principle requiring disclosure of fraud, waste, abuse and corruption. The recommendation by two agencies to change "shall" to "should" was not adopted. Section 2635.101(b)(11) is a verbatim restatement of the principle enunciated in the Executive order and the recommended substitution of precatory for mandatory language would change the principle. The Office of Government Ethics does not share those agencies' concern that the principle will elicit frivolous reporting. The Government's interest in curbing waste, fraud, abuse and corruption is better served by over reporting than by under reporting, and the authorities to whom such disclosure are to be made can best determine the merits of allegations and ensure that harm does not result from any that are spurious.


Exhibit 7, quoting from Federal Register p. 35007 (emphasis added).


In addition, the OGE warned that agencies could not require employees to apply "complex legal principles" when determining whether to report potential "improprieties." Id. Thus Dr. Whitehurst, who read these regulations prior to filing any allegations with the Office of Inspector General, acted pursuant to mandatory authority when he reported potential violations of complex legal matters such as improper withholding of Brady information, potential perjury, and improper scientific procedures.


Not only was Dr. Whitehurst required to report his concerns pursuant to EO 12731, the OGE regulations, and the DOJ, the FBI's own internal procedures regarding employee conduct required that Dr. Whitehurst report every "indication" of misconduct, whether proven or not, to the appropriate authorities. The FBI Manual Administrative Manual of Operating Procedure, Section 1-22, states as follows:


Each employee has the responsibility to report promptly, any indication of possible exploitation or misuse of Bureau resources; information as to violations of law, rules or regulations, personal misconduct . . . .


Exhibit 8, (emphasis added).


Under the FBI MAOP requirements, Dr. Whitehurst had a "responsibility" to "promptly" report each and every "indication" of a "possible" violation of law. This is an extremely broad disclosure requirement consistent with EO 12731. Dr. Whitehurst's reporting activities were consistent with this regulation. The importance of aggressively supporting FBI employees who make disclosures under FBI MAOP rule Section 1-22 cannot be underestimated. In this case, many of Dr. Whitehurst's most important disclosures were based upon hearsay. For example, his allegation over false testimony in the Alcee Hastings case was based on second hand information. In order to perform his duty under the EO and FBI/DOJ requirements, Dr. Whitehurst was obligated to report unproven "indications" of misconduct to the appropriate authorities.


The FBI and DOJ's concern that Dr. Whitehurst's reporting activities somehow was wrong has no support under the law and controlling regulations. Indeed, it was the responsibility of the FBI and DOJ to actively encourage Dr. Whitehurst's reporting activities and to insure that these reports were properly investigated in order to determine which "indications" of "possible" misconduct were accurate.


 

THE FAILURE OF THE ATTORNEY GENERAL AND
FBI TO IMPLEMENT THE WHISTLEBLOWER PROTECTION
ACT OF 1989 HARM DR. WHITEHURST AND ALL
FBI EMPLOYEES

Shortly before Dr. Whitehurst made his first disclosure of misconduct within the FBI crime lab to a non-FBI employee, Congress passed the Whistleblower Protection Act of 1989 ("WPA"). In that law a special provision was created to assist FBI whistleblowers. See, 5 U.S.C. § 2303 and the two statutory provisions referenced in that section, 5 U.S.C. §§ 1214 and 1221, attached hereto as Exhibits 9, 10 and 11. This required the Attorney General to implement protections for FBI whistleblowers. 5 U.S.C. § 2303(b). Moreover, it required the President of the United States to insure that regulations protecting FBI whistleblowers were created which were, at a minimum, "consistent" with the protections afforded other federal civil servants. 5 U.S.C. § 2303(c).


The President of the United States, the Attorney General, and the FBI flagrantly ignored this law. Between 1989 and March of 1997, no regulation or rule was implemented by the DOJ, the FBI, or the President protecting FBI whistleblowers in the manner mandated under the Whistleblower Protection Act of 1989.


A brief history of the WPA of 1989 is necessary in order to understand how mandatory whistleblower protections within the FBI were never implemented. In 1978, Congress passed the Civil Service Reform Act ("CSRA") of 1978, Pub.L. No. 95-454, which contained a very weak and ineffective section purportedly protecting federal employee whistleblowers. The federal government (including the DOJ and FBI) issued very weak whistleblower protection rules. See, e.g., Vol. 41 Federal Register 27754, codified as 28 C.F.R. § 0.39 et seq. (Subpart G-2-Office of Professional Responsibility).


The CSRA of 1978 (and the DOJ regulations implementing these rules) did not provide employee whistleblowers a private right of action to adjudicate the legality of adverse actions, did not provide for monetary damages or attorney fees, and did not provide any time constraints for resolving disputes. Within the FBI, protection of whistleblowers was purely discretionary. Even if the Attorney General deemed protection appropriate, the whistleblower's only remedy was the granting of a mere "stay" of an adverse personnel action if the "facts and circumstances involved" justified such a stay. 29 C.F.R. § 0.39(c).


In 1989, Congress recognized that the CSRA of 1978 did not adequately protect whistleblowers, and became concerned about the "dismal effectiveness" of the 1978 CSRA. Marano v. Department of Justice, 2 F.3d 1137, 1140 (Fed Cir. 1993), citing 135 Cong. Rec. 564 (1989)(remarks of Sen. Levin). Congress enacted the Whistleblower Protection Act of 1989 to amend the serious flaws in the CSRA of 1978 and to "send a strong, clear signal to whistleblowers that Congress intends that they be protected from any retaliation related to their whistleblowing." 135 Cong.Rec. 5033 (1989)(Explanatory Statement of S. 20).


The WPA of 1989 significantly enhanced both the substantive and procedural remedies afforded to whistleblowers under the CSRA. Congress enacted a number of significant reforms, including the following:


Whistleblowers would have a private right of action;

Whistleblowers would be afforded due process in this private right of action, including the right to a discovery and an on-the-record hearing before an impartial administrative judge;

All of the burdens of proof necessary to prove an unlawful reprisal were lowered;

The government's burden of proof to rebut that an unlawful reprisal was taken was raised to the "clear and convincing" evidence standard;

Damages afforded whistleblowers were expanded, and attorney fees and costs were recoverable.


See, 5 U.S.C. §§ 1214 and 1221.


The U.S. Court of Appeals for the Federal Circuit summarized the policies behind the WPA of 1989:


The policy goal behind the WPA was to encourage government personnel to blow the whistle on wasteful, corrupt or illegal government practices without fearing retaliatory action .... Such encouragement is guaranteed by the substantially reduced burden that must be carried by the whistleblower to earn the WPA's protection . . . . A principal office of the WPA is to eliminate that disincentive and freely encourage employees to disclose what is wrong with our government.


Marano v. Department of Justice, 2 F.3d 1137, 1142 (Fed Cir. 1993).


The legislative history of the WPA of 1989 demonstrates that Congress was aware of the chilling effect on whistleblowers caused, in part, by the lack of protections afforded employees under the CSRA of 1978. Based on a number of studies, it became "clear" to Congress that the CSRA of 1978 "did not go far enough in its protection for whistleblowers. This included two surveys relied upon by Congress which showed that "an astonishing 70 percent of Federal employees with knowledge of fraud, waste, and abuse did not report it" to the proper authorities. In addition, the surveys found that the number of employees who "did not report government wrongdoing because of fear of reprisal" actually "rose dramatically" during the time period in which the CSRA of 1978 was in place. See, e.g., Vol. 135 Congressional Record at 4517-18 (March 16, 1989) (Remarks of Sen. Byrd)("In 1978, as a part of the Civil Service Reform Act of 1978, provisions were included to protect Federal whistleblowers. The need to strengthen these provisions were clearly demonstrated, however, by surveys conducted in 1980 and 1983 ...")(emphasis added); Id. at 4519 (Remarks of Sen. Metzenbaum)("Under the current law, Federal employees increasingly are afraid to come forward with information about Government fraud.")(emphasis added).


Congress recognized that, without the added protections afforded in the WPA of 1989 the "vast majority" of employees would be intimidated and not raise concerns:


We need stronger protections for whistleblowers. Under the current system, the vast majority of employees choose not to disclose the wrongdoing they see. They are afraid of reprisals . . . .


Id., p. 566 (Remarks of Sen. Grassley).


This is precisely the problem which Dr. Whitehurst and other FBI employees who witnessed the misconduct within the crime lab faced between 1989 and 1997. The very fear and intimidation Congress identified as existing within the federal work force under the pre-WPA conditions still exists within the FBI today.


When Congress passed the WPA of 1989 it determined that FBI employees would be subject to its protection. For example, Congress amended the statute covering FBI employees, 5 U.S.C. §2303, to expressly provide that important reforms included in the WPA of 1989 (i.e., 5 U.S.C. §§ 1214 and 1221) also would be applicable to FBI employees. Congress explicitly mandated that the rights of FBI employees would be protected "consistent with the applicable provisions of" 5 U.S.C. §§ 1214 and 1221. See, 5 U.S.C. §2303(c).


However, during the pendency of Dr. Whitehurst's concerns with the FBI and DOJ, the President, FBI, and Department of Justice never implemented this law. Not one regulation was placed into effect codifying the new laws for FBI agents and nothing was done to ensure that FBI whistleblower protection was consistent with the new standards set forth in the WPA of 1989.


Dr. Whitehurst was forced to pursue his "whistleblower" case without any of the protections Congress had given him. Instead of due process, he faced numerous investigations and attacks on himself and his reputation. Beginning in 1989, when he was suspended and placed on probation merely for disclosing truthful information about contamination within the crime lab, Dr. Whitehurst faced an unending campaign to terminate him from employment within the FBI and to discredit his scientific concerns. These attacks were outlined in a letter to President Clinton filed on January 29, 1996. Exhibit 12, Letter to President Clinton and request for an Individual Right of Action under the WPA.


Incredibly, the President, FBI, and DOJ simply refused to implement the mandated requirements and continued to utilize procedures which violated numerous important legal requirements when reviewing Dr. Whitehurst's allegations of retaliation. In fact, all of the procedures utilized by the DOJ IG in investigating Dr. Whitehurst's retaliation allegations were improper and did not follow the mandates of the 1989 WPA. Not only was Dr. Whitehurst denied all due process rights guaranteed under the WPA, the IG illegally commingled the investigation into Dr. Whitehurst's allegations of misconduct within the crime lab with its investigation into the unlawful retaliation and published the results of the retaliation investigation in a manner completely inconsistent with the WPA. See, e.g., Exhibit 10 (which prohibits the use of retaliation findings in administrative or civil proceedings without the express consent of the whistleblower). The DOJ explicitly denied Dr. Whitehurst's numerous requests that he be permitted to have his retaliation concerns adjudicated in a manner consistent with the WPA of 1989.


Some of the problems caused by the DOJ's denial of due process and WPA protection to Dr. Whitehurst are summarized as follows:


Denial of right to counsel. Both the FBI and DOJ ordered Dr. Whitehurst not to discuss certain matters with his own private attorneys. This unconstitutional interference with the right to counsel prevented Dr. Whitehurst from properly addressing many of the issues raised in the draft and final IG report;


Denial of basic due process. In order to present his concerns before the IG, Dr. Whitehurst requested access to FBI documentation which would have verified or otherwise corroborated his allegations. This request was denied. In addition, Dr. Whitehurst requested the right to prepare formal testimony to the IG, instead of relying merely on informal letters sent to an investigator. This request was denied and Dr. Whitehurst never had the opportunity to be called by his attorney and questioned under oath before the IG experts about any matter in which he had raised a concern.


The FBI and DOJ ignored Dr. Whitehurst's need to obtain documents in order to prove his concerns. In 1993 and 1995, Dr. Whitehurst filed a number of Freedom of Information Act requests in order to obtain these materials. The FBI illegally violated the Freedom of Information Act and prevented Dr. Whitehurst from obtaining the needed documents. After being forced to file a suit to obtain the documents, the Court ordered the production of the requested material. However, the FBI did not release any of the material until after the IG issued its draft report and none of the over 10,000 pages in released documents have been properly presented by Dr. Whitehurst to the IG. A cursory review of these materials demonstrates how important the FBI documents would have been in any fair or just review of Dr. Whitehurst's concerns. See, e.g. Exhibit 13 (which documents the abuse of the pre-publication clearance procedures); Exhibit 14 (which documents that the FBI was aware of the validity of many of the types of issues raised by Dr. Whitehurst); Exhibit 15 (which demonstrates that the FBI was fully aware of the validity of Dr. Whitehurst's concerns about the evidence introduced in a major bombing case, yet both the FBI and apparently the U.S. Attorneys office failed to provide this information to the defendant); Exhibit 16 (which demonstrates that the FBI was fully aware of a major contamination issue within the lab (i.e. the "walk-through area in the Materials Analysis Unit), yet took no action to correct this matter); and Exhibit 17 (which documented that scientific reports within the crime lab had been intentionally and materially altered in violation of lab policy).


One of the most disturbing revelations contained in FBI-released documents was correspondence between the FBI and DOJ IG. Exhibit 18. Letter from FBI OPR to DOJ IG.. They reveal a high level of cooperation between the FBI and IG. Instead of the independence Dr. Whitehurst had expected from the IG, the IG and FBI had entered into a secret deal, in violation of their own operating procedures, to allow the FBI full access to all of Dr. Whitehurst's letters, full access to the interviews of FBI employees and a co-equal role in writing the final IG report (although only the IG's name would be on the report). These agreements were reached behind Dr. Whitehurst's back and, had they been known, Dr. Whitehurst would have ceased cooperating with the IG. Only the intense public pressure resulting from the public attention concerning the crime lab generated by the public disclosure of Dr. Whitehurst's allegations during the O.J. Simpson matter forced the IG to back off from the agreements with the FBI. However, the complete lack of written procedures and the failure to institute regulations required under the WPA allowed this collusion to occur.


The failure to discipline FBI employees in the crime lab for engaging in racist conduct. Exhibit 19, FBI OPR documentation confirming Dr. Whitehurst's allegation regarding racist conduct exhibited by personnel. No disciplinary action was taken to correct the conduct identified in these documents.


The failure to undertake the review requested by Dr. Whitehurst's counsel which would have resulted in the identification and potential correction of all of the problems identified by the DOJ IG back in 1994. Exhibit 20, Kohn to Shapiro, Feb. 7, 1994.


PRESIDENT CLINTON'S APRIL 14TH ORDER


As previously stated, on January 29, 1996, Dr. Whitehurst, through counsel, formally requested that the President implement the WPA of 1989 for all FBI whistleblowers and filed a "private right of action" on behalf of Dr. Whitehurst. The President and Attorney General initially ignored this formal request. When pressed, the Department of Justice denied Dr. Whitehurst the right to pursue his rights under the WPA of 1989 and stated that the IG investigation was the only remedy he would be afforded. Thereafter, on March 26, 1996, Dr. Whitehurst filed a complaint for injunctive and mandamus relief against the President, Attorney General, and FBI requesting that the WPA remedies be made available to Dr. Whitehurst and all other similarly situated FBI employees.


The government continued to vigorously defend its failure to implement the WPA of 1989. Dr. Whitehurst pressed on and filed a motion for preliminary injunction concerning the FBI and DOJ's failure to implement the WPA of 1989 for FBI employees. Finally, the government conceded that it must obey the law. On April 14, 1997 President Clinton issued a "MEMORANDUM FOR THE ATTORNEY GENERAL." Exhibit 21. This Memorandum "direct(ed)" the Attorney General to "establish appropriate processes" to implement the WPA of 1989 on behalf of all FBI employees. This historic directive was a necessary first step in establishing the legal protections mandated by Congress over eight years ago. The crucial question facing the DOJ and FBI is the manner in which the Attorney General implements the WPA of 1989. Congressional oversight is needed in order to insure that the "processes" established by the Attorney General to protect FBI whistleblowers is both fully consistent with the WPA and provides realistic protections to FBI employees.


RECOMMENDATIONS


In order to encourage FBI employees to report possible indications of misconduct within the FBI, it is imperative that the procedure established by the Attorney General to implement the WPA of 1989 is both fully consistent with that law and fully consistent with the goal of properly protecting FBI employee-whistleblowers. Without proper protections, misconduct within the FBI will never be uncovered and corrected. Congress must insure that the Attorney General's regulations implementing the WPA contain the following features which are either required under the law or are necessary in order to fulfill the Congressional intent behind the law:


The definition of protected activity must remain broad and consistent with President Bush's Executive Order and the FBI MOP. In addition, reporting misconduct to Congress and/or the DOJ IG must also be fully protected. Likewise, because misconduct will often implicate disclosure requirements of prosecutors as required under the U.S. Constitution (e.g., Brady v. Maryland), FBI employees who disclose potential Brady information in the course of official state or federal court proceedings must also be fully protected.


The body which adjudicates FBI whistleblower cases must be fully independent of the DOJ and FBI. It must have a sensitivity to the unique problems which face whistleblowers and an expertise in these matters.


The due process afforded FBI whistleblowers must be "consistent" with the WPA. The ex parte and arbitrary procedures currently employed by the DOJ and FBI must be completely abandoned.


The regulations initially drafted by the Attorney General must be submitted for public comment and submitted to the federal court currently reviewing this matter for final approval.


Respectfully submitted,




Stephen M. Kohn

Chairman, National Whistleblower Center and

Private Attorney for Dr. Frederic Whitehurst

3233 P Street, N.W.

Washington, D.C. 20007

(202) 342-6980

(202) 342-6984 (Fax)


Dated: May 12, 1997




1. Numerous other FBI employees violated the disclosure requirements of EO 12731. The problems in the crime lab caused by the misconduct of certain employees and the failure of the crime lab to adhere to the basic standards of accreditation were well known to hundreds of FBI employees. The vast majority to these employees violated the reporting requirement set forth in EO 12731. These performance failures can be attributed to a number of factors, including the failure of the President, Attorney General and FBI Director to implement the Whistleblower Protection Act of 1989, the culture of intimidation which exists within the FBI, and the resistance of the FBI to outside oversight.



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