Congress Probes Job Action Against Border Patrol Agents

By Jeff Johnson | July 7, 2008 | 8:28 PM EDT

2nd Write thru; supercedes all previous copy.

Capitol Hill (
- A Republican member of the Senate Judiciary Subcommittee on Immigration is questioning the Immigration and Naturalization Service's decision to discipline two Border Patrol agents for publicly pointing out weaknesses in security along the U.S. border with Canada.

"As a longtime advocate for whistleblowers, I am shocked and angry about the Immigration and Naturalization Service (INS) Border Patrol's retaliation against Border Patrol agents Mark Hall and Robert Lindemann," Sen. Chuck Grassley (R-Iowa) said in a letter to INS Commissioner James Ziglar Friday.

Grassley is also the ranking Republican member of the Senate Judiciary Subcommittee on Crime and Drugs.

"Based on this situation, it appears that some managers at the INS and Border Patrol are more worried about suppressing embarrassing information than enforcing immigration laws and protecting the nation's security," he concluded.

In a September 19, 2001, article in the Detroit Free Press, Hall and Lindemann detailed serious inadequacies in their agency's efforts to stop terrorists from entering the U.S. from Canada.

"The northern border," Hall told the newspaper, "has been basically abandoned by the government."

The two testified to Congress in an open hearing in Nov. 2001, sharing much of the same information contained in the press reports. Grassley called the disclosures by Hall, who serves as president of the local Border Patrol agents' union, and Lindemann, the group's vice president, "a valuable service to the public."

Initial threats by INS and Border Patrol supervisors to fire Hall and Lindemann were "especially galling," said Grassley, because that punishment would have been "far more severe" than measures taken against higher-level INS officials involved in the agency's two most recent embarrassing incidents.

He cited the example of four officials at INS headquarters who were "merely reassigned" after a Florida flight school received confirmation of student visa approvals for two September 11 hijackers six months after their deaths.

The senator also referred to a Norfolk, Va., INS official who allowed four Pakistani nationals into the U.S. without proper documentation. That official also was only reassigned to another office as "punishment."

"The personnel actions in both these cases were widely viewed as slaps on the wrist," Grassley observed.

Since their public disclosures, Hall and Lindemann have been prohibited from working together and have been assigned to different shifts, where they earn less pay, according to Grassley. The Iowa Republican say the Border Patrol delayed a plan to suspend them for 90 days without pay and demote them for one year, pending the outcome of an investigation.

"It is my understanding that the OSC [Office of Special Counsel] has reasonable grounds to believe that Border Patrol officials retaliated against the two agents for making disclosures, which are protected by the Whistleblower Protection Act and the First Amendment of the Constitution," Grassley noted in his letter.

The Justice Department's Office of the Inspector General also investigated the matter, and reported its findings to Ziglar in a March 4 memorandum.

"We seriously question the decision to propose discipline against Hall and Lindemann and believe it would not be upheld," the memo stated.

"We believe the INS's proposal was unsound and that the INS should reevaluate whether it has a basis to go forward with discipline against the two agents," the OIG recommended.

Grassley says punitive actions such as those proposed by the INS are exactly why he authored the 1989 "Whistleblower Protection Act." The law prohibits government supervisors from taking or threatening to take personnel actions against employees who disclose:

- a violation of any law, rule, or regulation;
- gross mismanagement;
- a gross waste of funds;
- an abuse of authority; or
- a substantial and specific danger to public health or safety.

The protection does not apply to disclosures that are prohibited by law or, in cases of national security matters, by executive order.

Russ Bergeron, a spokesman for the INS, told that the agency was concerned over both the timing and the content of the agents' remarks.

"This particular circumstance occurred within a week of the September 11th terrorist attacks," he noted.

"The concern at that time was that the disclosure of specific capabilities, and staffing, and resources at specific locations on the northern border could create a security vulnerability at an extremely sensitive time," he explained.

Bergeron said INS does not prohibit agents from talking with to reporters, but does have procedures in place for agents to coordinate media contacts through their supervisors and an INS public affairs officer.

"The one thing we do require with respect to employees talking to the media," he concluded, "is that they understand that they have a responsibility to insure that the safety of their fellow officers and private citizens, as well as the Service's national security efforts, are not compromised by comments that are made to the media."

Grassley believes that none of those exclusions apply to Hall's and Lindemann's disclosures.

"The INS' actions in this case are exactly the opposite of what should be done," Grassley wrote Ziglar, adding that INS needs to encourage whistleblowers to "expose security problems that have been ignored by the bureaucrats."

Bergeron said he could not specifically discuss the case involving Hall and Lindemann because of the ongoing investigation.

He did say that under normal disciplinary procedures, the subject of an allegation is given 30 days to respond to the findings of an investigation. That response is considered by a "deciding official" who then renders a decision as to what, if any punishment will be handed down. The employee can appeal that decision to the government's Merit System Protection Board.

Grassley's letter seeks a response from the INS Commissioner within ten days specifically requesting that Ziglar:

- Promise that no retaliation will be taken against Hall and Lindemann;
- Change INS procedures for employee contacts with the media; and
- Discipline "the only individuals who should be punished in this matter - the managers who sought to retaliate against Hall and Lindemann."

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