March 28, 2002
The Honorable James Ziglar
Commissioner
Immigration and Naturalization Service
Washington, D.C.
Dear Commissioner Ziglar:
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.
As a member of the Judiciary Subcommittee on Immigration and ranking member of the Judiciary Subcommittee on Crime and Drugs, I am particularly concerned that the INS and Border Patrol are violating the 1989 Whistleblower Protection Act, which I authored in the Senate.
Agents Hall and Lindemann have spotlighted security problems at the U.S.-Canadian border, providing a valuable service to the public. The two agents made their disclosures in the media starting in September in 2001 and as recently as this past week. In addition, the agents testified before Congress in November of last year.
Their disclosures carry extra weight because of their intimate knowledge of the situation. The agents' criticism of security problems has been validated by the U.S. Department of Justice Office of Inspector General (OIG) in its report, I-2002-004, "Follow-Up Report on the Border Patrol's Efforts to Improve Northern Border Security."
Agents Hall and Lindemann already have suffered retaliation at the hands of Border Patrol officials. The two men were separated from working together and now work different shifts, where they now earn less pay. It is my understanding that the Border Patrol held in abeyance its proposal to suspend them for 90 days without pay and demote them for one year, pending the investigation by the Office of Special Counsel (OSC). The OSC is an independent federal investigative and prosecutorial agency that works to protect federal employees from illegal personnel practices, including whistleblower disclosures.
It is my understanding that the OSC 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. In addition, the Justice Department OIG investigated the matter and stated to you in a March 4, 2002, memo:
"However, we seriously question the decision to propose discipline against Hall and Lindemann and believe it would not be upheld."
. . .
"In sum, 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."
Despite the findings of the OSC and Justice OIG that INS should not retaliate against the agents, it is my understanding that the Border Patrol and INS now plan to proceed with their original disciplinary action against the two agents.
The INS' actions in this case are exactly the opposite of what should be done. It is clear from recent snafus that the INS needs more whistleblowers who expose security problems that have been ignored by the bureaucrats. Instead, the INS and Border Patrol have chosen to retaliate against those who spotlight problems and mismanagement.
I ask for your response within ten (10) days to three issues:
1) Please inform me that you will not be taking any disciplinary action against agents Hall and Lindemann;
2) Please inform me what steps you will be taking to respond to the Justice OIG's recommendations for changing INS procedures for employee contacts with the media; and,
3) Please inform me what steps you will take to discipline the only individuals who should be punished in this matter ? the managers who sought to retaliate against Hall and Lindemann.
It is especially galling that INS and Border Patrol managers initially sought to terminate the employment of these two agents, which is far more severe than the discipline meted out to higher-level officials involved in the INS' two recent embarrassing snafus.
For example, four officials at headquarters were merely reassigned for their role in the approval of student visas for two of the September 11, 2001, hijackers. Also, the official at the Norfolk office who mistakenly allowed four Pakistanis into the country without proper documentation was reassigned to an Arlington office. The personnel actions in both these cases were widely viewed as slaps on the wrist.
In addition, the Justice OIG's report on its investigation of the agents' case highlights at least one case of hypocrisy. Jenna Neinast, who notified Internal Affairs about the agents' disclosures to the media, made similar comments to the media a year before. The Justice OIG report states that she told the Detroit Free Press for a March 6, 2000, article that border patrol offices in Michigan are understaffed, and she's quoted as saying, "We just can't be in all the places we need to be."
Finally, Border Patrol officials did not even conduct their retaliation in a competent manner. The Justice OIG investigation report notes that they failed to fully investigate the matter or gather all the facts before moving forward with punishment. Also, the original disciplinary letters to the two agents list different reasons for punishment than what Border Patrol supervisors provided to the Justice OIG.
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. With many in Congress questioning INS management, this is an opportunity to take the right steps and restore some confidence.
I appreciate your time and assistance on this matter.
Cordially yours,
Charles E. Grassley
Ranking Member
Subcommittee on Crime and Drugs
cc: Attorney General John Ashcroft
Department of Justice
Special Counsel Elaine Kaplan
Office of Special Counsel
Glenn Fine
Inspector General
Department of Justice