Border Patrol Agrees To Reinstate Whistleblowers

July 7, 2008 - 8:20 PM

Capitol Hill (CNSNews.com) - Two Border Patrol agents disciplined for revealing weaknesses along the U.S.-Canada border after the Sept. 11th terrorist attacks have been vindicated in an independent investigation.

U.S. Special Counsel Elaine Kaplan found "reasonable grounds to believe" that actions taken and proposed against Border Patrol Agents Mark Hall and Robert Lindemann violated the Whistleblower Protection Act and the First Amendment.

The Office of Special Counsel (OSC) is an independent federal agency created "to protect federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing," according to the agency's website.

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

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

Among the details the two revealed were that:

- 28 field agents were attempting to protect 804 miles of waterway and shoreline between the U.S. and Canadian border with only one working boat, several damaged electronic sensors, and a broken remote surveillance camera;
- 324 field agents were then serving the entire U.S.-Canada border, and the agents were often required to release detainees due to lack of detention facilities; and
- Agents were ordered away from border protection duties to process Mexican illegal aliens caught at the Detroit Metropolitan Airport.

The agents' allegations were subsequently reported on at least one network television news program.

The OSC investigation revealed that Border Patrol officials "viewed the public revelation of these issues as an act of 'disloyalty.'"

"Mr. Hall and Mr. Lindemann's efforts to bring attention to lingering security issues on the border in the wake of the September 11th attacks were hardly 'disloyal,'" Kaplan said. "On the contrary, their efforts represented an act of complete loyalty to our nation and the public they serve."

The Immigration and Naturalization Service, which currently oversees the Border Patrol, temporarily changed the two agents' schedules, causing them to lose special pay. An original disciplinary proposal called for a 90-day suspension, but the final decision included plans for both a 90-day suspension and demotions for one year.

The Whistleblower Protection Act forbids federal agencies from retaliating against employees for disclosing information that the employee "reasonably believes demonstrates a substantial and specific danger to the public health and safety."

"Similarly, the First Amendment protects federal employees when they speak out on matters of public concern," according to Kaplan, "so long as their speech does not unduly disrupt the ability of their government employer to perform its mission."

INS spokesman Russ Bergeron says the agency is not opposed to employees "speaking to the press and expressing their beliefs or opinions." Officials still believe, on the other hand, that Hall and Lindemann improperly disclosed "sensitive information" to the media.

"We do think that in dealing with the press, employees have a responsibility to recognize that they can make their point without providing information that might jeopardize the safety of their fellow officers or the security of our borders," Bergeron explained.

Kaplan doesn't believe that happened. She adds that it is even more important to protect federal employees who bring attention to security concerns amid the current war on terrorism.

"Federal employees are often in the best position to observe such risks and weaknesses. When employees expose these conditions, they can be corrected. Employees should never, of course, make public disclosures of classified information," Kaplan added.

Hall and Lindemann's disclosures, Kaplan ruled, did not involve classified information.

"While we do not necessarily agree with all of the conclusions of the Office of Special Counsel," Bergeron said, "we nonetheless felt that, given the circumstances, it was best to settle this and move on."

In settling the matter, the INS has agreed to provide Hall and Lindemann back pay plus interest for all special pay lost. In addition, the INS will rescind and expunge the proposals to suspend and demote the agents from their personnel files.

The agency will also provide whistleblower protection training, sponsored by the OSC, to all management personnel in its Detroit-area offices.

Because there is some question as to whether or not Hall and Lindemann received proper notice of INS regulations regarding contact with the media, additional changes will be made.

"We plan to insure, in the future, that we provide clear instructions to all employees regarding both their rights and responsibilities when dealing with the press," Bergeron concluded.

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