The Department of Justice confirmed this month that it currently believes it can seek, in certain instances, to gag officials who want to discuss problems plaguing the FBI with legislative oversight bodies.
Responding to questions from Senate Judiciary Committee chair Chuck Grassley (R-Iowa) about an April 2014 DOJ “sanctions proposal [that] could be used to thwart Congressional oversight of whistleblower cases,” Acting Deputy Attorney General Sally Quillian Yates said, in testimony for the written record, that the agency can seek “protective orders” prohibiting conversations between whistleblowers and lawmakers.”
Yates said that the “protective orders” were issued by DOJ “to ensure that whistleblowers have access to the documents they need as part of [Office of Attorney Recruitment and Management] proceedings, while at the same time preventing the release of privacy-protected or sensitive law enforcement information.”
The Office of Attorney Recruitment and Management, or OARM, has the authority to mediate disputes in FBI whistleblower retaliation cases.
Yates noted that while “it has yet had occasion to do so,” the personnel oversight body has the ability “to issue a protective order if necessary to protect from harassment a witness or other individual who testifies before it.”
“OARM has used protective orders in the past only in limited circumstances, including where the parties have requested the investigative file from FBI’s Office of Professional Responsibility (OPR) or [the Office of Inspector General],” she remarked. “In those cases, the parties have agreed to enter a joint stipulated protective order to prevent the release of privacy-protected or sensitive law enforcement information.”
In addition to claiming it has never been used in the manner described by Grassley, Yates defended the authority as “narrow,” while noting that the department’s review of the germane rules is ongoing.
“While we do not yet know everything that will be incorporated into the regulations, we will seriously consider these suggestions,” Yates told Grassley, in response to a question about whether there should be exemptions “to these gag orders for disclosures to Congress and the Inspector General.”
The April 2014 report that sought to limit communications between federal agents and oversight organs was submitted to President Obama as part of an examination of rules governing FBI whistleblowers.
Yates defended the recommendation as granting powers consistent with administrative judges currently on the Merit System Protection Board—a quasi-judicial agency established in 1979 to uphold meritocracy within the federal civil service.
Grassley noted, in his written questions, however, that both the Government Accountability Office, the DOJ Inspector General and the FBI have urged the Justice Department “to explicitly protect disclosures made by FBI employees to Congress.”
The GAO also warned earlier this year that the FBI fails to protect whistleblowers by falsely telling its rank-and-file disclosures made to immediate supervisors are protected. The April 2014 proposal brought up by Grassley stated that the Obama administration only believes in “expanding whistleblower protections to disclosures made to the second-in-command of an FBI field office.”
Grassley first asked Yates for her opinion on FBI whistleblower regulations at a March hearing confirming her nomination.
While testifying, Yates described her position as being akin to a “Chief Operating Officer” for the department.
Her nomination has not yet been permanently confirmed by the Senate.
