DOJ Security Review Process ‘Could Be Misused’ to Punish Whistleblowers: Inspector General

Michael Horowitz, Inspector General of the U.S. Department of Justice, is sworn-in during a Senate Judiciary Committee hearing titled 'Oversight of the Foreign Agents Registration Act and Attempts to Influence U.S. Elections' in the Hart Senate Office Building on Capitol Hill, July 26, 2017 in Washington, DC.Drew Angerer/Getty Images

The FBI does not have a clear process in place for its employees to raise concerns of retaliation when the bureau suspends their security clearances, a new report by the Justice Department’s inspector general alleges.

A new report, authored by DOJ Inspector General Michael Horowitz, delves into an apparent lack of protections for whistleblowers within the FBI. The report specifically focuses on how the bureau handles security clearance investigations of its employees and whether employees with suspended clearances understand the internal procedures for alleging the bureau is acting in retaliation against disfavored whistleblower activity.

Mr. Horowitz finalized his investigative findings on May 9, and his office made them public on Tuesday, May 14.

Mr. Horowitz noted 50 U.S.C. § 3341(j) prohibits agencies from taking or threatening to take “any action with respect to any employee’s security clearance” in retaliation for protected whistleblowing activity. This same section of the U.S. statute also states that government agencies must, to the extent practicable, permit individuals with a retaliation claim to retain their government employment status while their security clearances are being reviewed.

Mr. Horowitz also noted a May 2022 order from the Office of the Director of National Intelligence called Security Executive Agent Directive-9 (SEAD 9) stipulates that U.S. executive branch intelligence agencies must have an appeals process by which employees can allege a suspension, revocation, or denial of their security clearance is being done for retaliatory purposes.

“It is unlikely that security clearance reviews, from suspension to a final decision to revoke, are being completed in 1 year,” the inspector general’s report states. “Accordingly, the DOJ Instruction that provides for a retaliation complaint to be filed with the OIG only after this process is concluded is inconsistent with the requirements of 50 U.S.C. § 3341 and SEAD 9.”

Security Clearance Reviews Averaged Nearly 18 months: Report

The DOJ inspector general reviewed 106 cases over the past five years in which an FBI employee saw their security clearance suspended for more six or more months as part of a clearance review. Among these 106 cases, the report found the average length of an FBI employee’s separation during the suspension period was 527 days (about 17.5 months). “Moreover,” the report adds, “this time period does not account for the additional time required for the FBI to produce to the employee the documentation supporting the revocation, for the employee to file a request for reconsideration, and for the FBI to issue a decision on the reconsideration request.”

The report notes that current DOJ policy does not allow employees to allege a security clearance suspension is retaliatory while that suspension remains in effect. This policy is particularly problematic within DOJ components, such as the FBI, which suspends employees without pay for the duration of the security review process.

Mr. Horowitz concluded that a year-long suspension without pay “could be misused, as part of an inappropriate effort to encourage an employee to resign” rather than endure the lengthy period without income amid uncertainty about whether they will return to gainful employment when the bureau reaches its conclusion on their security clearance.

The report highlighted one case in which it took 15 months for the FBI to reach a conclusion on an employee’s security clearance review, followed by another four-month wait for the FBI to provide that employee with the information the FBI used to decide that employee’s clearance should be suspended.

Jason Foster, founder of the anti-corruption and whistleblower advocacy group Empower Oversight, insisted Mr. Horowitz’s review was prompted in part by Marcus Allen, one of the FBI whistleblowers his group supported.

Mr. Allen testified at a March 2023 House Judiciary Committee hearing that he believed he was the target of retaliation for questioning the FBI’s official stance regarding the presence of confidential informants and other bureau assets during the events at the U.S. Capitol on Jan. 6, 2021.

“The report is pretty dense. But the bottom line is that the [FBI] is not following the law. It built a bureaucratic box designed to force employees to resign by withholding their pay and any meaningful appeal rights until they have to choose between vindication and feeding their families,” Mr. Foster wrote in a social media post following the release of the inspector general’s report on Tuesday.

Inspector General Calls For Strengthened Whistleblower Protections

The inspector general report recommends the DOJ amend its policies to allow its employees to file a retaliation claim when they have a period of suspension lasting longer than a year. The report also calls on the DOJ to notify employees of their rights to file retaliation claims.

In cases where a security clearance review lasts longer than 90 days, the inspector general report recommends the DOJ implement a monthly review to ensure the DOJ is handling the security clearance review “as expeditiously as circumstances permit.” Mr. Horowitz also called on the DOJ to again ensure that employees who allege a security clearance review are retaliatory are allowed to retain their employment status to the extent possible while their reviews are adjudicated.

NTD News reached out to both the DOJ and the FBI for comment following the new inspector general report but did not receive a response by press time.

From NTD News