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
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,
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
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
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.
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
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
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.
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
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.
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
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.
Stephen M. Kohn
Chairman, National Whistleblower Center and
Private Attorney for Dr. Frederic Whitehurst
3233 P Street, N.W.
Washington, D.C. 20007
(202) 342-6984 (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.