The Obama administration has made a concerted effort to improve protections for whistleblowers, but advocates fear a new videotape from the acting director of the ATF may have a chilling effect on reporting wrongdoing inside a federal agency already reeling from the Fast and Furious scandal.
The federal prosecutor brought in to reform the embattled Bureau of Alcohol, Tobacco, Firearms and Explosives in the aftermath of the Fast and Furious gun scandal distributed a videotaped message to employees this month warning there would be “consequences” for reporting wrongdoing outside their chain of command.
The video, obtained by the Washington Guardian, immediately raised alarm among agents in the field, members of Congress and whistleblower advocates.
“Choices and consequences means simply that if you make poor choices, that if you don’t abide by the rules, that if you don’t respect the chain of command, if you don’t find the appropriate way to raise your concerns to your leadership, there will be consequences,” Acting Director B. Todd Jones told the employees in a video distributed July 9 by email and closed-circuit TV and obtained by the Washington Guardian.
The 3 minute, 22 second videotape was the last of eight “Changecasts” that Jones distributed to ATF employees in recent weeks to describe how he planned to run the agency, improve morale and instill a new culture in the aftermath of one of the agency's worst scandals.
ATF officials in Washington and rank-and-file agents told the Washington Guardian that the tape was interpreted by many as a warning not to pursue the path of the Arizona agents who went outside the agency in 2011 and reported concerns to Congress about the bungled Fast and Furious gun probe that let semiautomatic weapons flow to Mexican drug gangs.
But an ATF manager insisted Wednesday that Jones did not intend to discourage whistleblowing and simply wanted to address concerns raised to him by employees around the country about why agents who previously went outside the chain of command hadn’t been punished.
“What the acting director has really noted is one of the main employee concerns has been a lack of accountability for those who don’t abide by the agency rules,” said John Hageman, ATF’s acting chief of legislative affairs. He declined to be more specific about whether that included the agents who went public with the Fast and Furious allegations.
“The acting director wanted to address that question through one of his ‘Changecasts,’” Hageman said. “The complete ‘Changecast’ was not intended to discourage whistleblowers from pursuing the full range of legal protections afforded to them when relating concerns.”
Asked whether Jones, in retrospect, would have preferred to use different words, Hageman noted the acting director was out of town and unavailable for comment.
Sen. Charles Grassley, R-Iowa, whose investigative work uncovered the Fast and Furious investigation, on Wednesday called the video message outrageous and a threat to lawmakers' ability to interview whistleblowers.
“It ought to be a wake-up signal for everybody in Congress who wants to do their job of constitutional oversight,” Grassley told Sinclair Broadcast, which reported the story with the Washington Guardian. “You can't put up with agency heads like this having this attitude."
"It is outrageous that a leader of a major organization of any department, particularly law enforcement, would have the temerity to make those sort of comments."
Whistleblower advocates said the effect of the message was to discourage ATF employees from coming forward.
“This video will cause a chilling effect,” said Steve Kohn, an attorney who has represented some of the government’s most famous whistleblowers and started the National Whistleblower Center to advocate on behalf of government and corporate workers who report wrongdoing.
Kohn said Jones’ specific use of words in the context of the video clearly misleads workers into believing they legally can’t go to Congress, outside inspectors general and the Office of Special Counsel to report wrongdoing.
“There are many cases that say whistleblowers can ignore the chain of command. In fact, under the Whistleblower Protection Act, you may lose protection if you only report to your first line supervisor, and going outside chain is a way to get protection,” Kohn said. “Also, the WPA says that ‘any disclosure’ is protected, not just disclosures made in the ‘appropriate way.’
Many inspectors generals’ offices inside Cabinet departments like the Justice Department, where ATF is located, have anonymous tip lines where employees can report wrongdoing without their bosses knowing.
A veteran ATF agent outside Washington, who watched the videocast and spoke to the Washington Guardian only on condition of anonymity for fear of reprisal, said he and his colleagues interpreted the message to mean they’d be punished if they reported wrongdoing to anyone outside their supervisors.
"The message was unmistakable. Keep your head down and the only way you can report wrongdoing is by going to your chain of command. It was chilling, Orwellian and intimidating,” the agent said. “What are you supposed to do if your chain of command is the one you think is involved in the wrongdoing? That was why OSC and IGs were created."
An ATF supervisor in Washington, also speaking on condition of anonymity, said some senior officials recognized shortly after the video was released that Jones’ words might cause confusion or be misinterpreted to suggest he frowned on whistleblowing to Congress.
Jones has been serving double-duty for months, shuttling between Minnesota where he serves as the U.S. attorney and Washington DC, where Attorney General Eric Holder asked him to temporarily oversee the ATF, which has been without a Senate-confirmed leader for several years. Senators blocked President George W. Bush’s last nominee and opposed President Barack Obama’s first nominee, an ATF supervisor in Chicago.
Kenneth Melson, the previous acting director, resigned last year in the aftermath of the Fast and Furious controversy, in which the agency was forced to admit its Arizona office allowed more than 1,700 weapons to pass through the hands of suspected straw buyers for Mexican drug cartels. Many of the weapons that were allowed to "walk” later showed up at crime scenes on both sides the border, including two at the December 2010 murder scene of a federal border patrol agent, Brian Terry.
The bungled sting only came to light when ATF agent John Dodson and others went to Sen. Charles Grassley, R-Iowa, to report it. Justice officials initially denied the allegations, but later conceded the tactics had been approved by ATF supervisors and federal prosecutors in Phoenix.
Obama eventually denounced the tactics, and Attorney General Eric Holder stopped their use and ordered an internal probe. Congress continues to investigate the issue, including whether Dodson and other ATF agents who came forward were subject to retaliation. The Obama administration has invoked executive privilege to keep some of its documents from being turned over to Congress.
Jones, a blunt-spoken former Marine, acknowledged at the outset of the July 9 video that the topic of internal discipline was uncomfortable, prefacing his remarks by saying he wanted to address “a less pleasant topic, but one that is critical to the functioning of any organization, particularly one with a public safety mission.”
And he repeatedly stressed loyalty was key to the disciplinary process, using terms like “organizational discipline” and “everyone working together” and “teamwork.” He noted ATF had made strides in recent months to improve its internal affairs and professional responsibility offices to more quickly and thoroughly investigate allegations of internal wrongdoing.
Jones’ comments (read the full transcript here) stand in contrast to those of the president, who has made protecting and heralding whistleblowers a major focus of his White House. In fact, Obama pledged during his transition to ensure whistleblowers could go outside their agencies to the courts and elsewhere to seek remedies.
“Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out,” Obama’s transition Web site said. “Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled. We need to empower federal employees as watchdogs of wrongdoing and partners in performance.”
The emergence of the videotape comes at a sensitive time for the White House.
The Washington Guardian reported Tuesday that memos the administration withheld from Congress in the Fast and Furious investigation show ATF was seeking to protect as whistleblowers the complaining agents in the case at the same time Justice Department officials were publicly undercutting the agents' claims with false denials that guns had been allowed to walk.
And Congress and federal investigators are examining whether top supervisors at the Food and Drug Administration were monitoring the emails of federal scientists who were raising concerns about the agency.
Fast and Furious is the code name given to a federal firearms trafficking operation in Arizona in 2009-10 that let more than 1,700 semiautomatic weapons flow into the hands of straw-buyers for Mexican drug gangs with the goal of building a bigger case against the cartels.
The ATF is the acronym for the Bureau of Alcohol, Tobacco, Firearms and Explosives, the federal law enforcement agency that combats illegal gun trafficking.
Executive Privilege is a constitutional doctrine made famous during Watergate that holds that a president is entitled to receive confidential advice from his staff without having to disclose it to Congress or the courts.