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INS Action Ruled a Violation of Whistle-Blower Protections
2 Border Agents Who Complained Were Demoted

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By James V. Grimaldi
Washington Post Staff Writer
Friday, March 29, 2002; Page A04

The Immigration and Naturalization Service violated federal whistle-blower protection laws late last year when it demoted and penalized two U.S. Border Patrol agents who openly complained about lax security along the Canadian border in the wake of Sept. 11, according to two independent federal offices.

The Border Patrol agents, based in Detroit, talked to a newspaper and appeared on the NBC "Today" show, where one of the agents said, "the northern border is vulnerable" and "terrorists know it." The statements prompted INS supervisors to try to fire the agents, but eventually they settled on reassignments, 90-day suspensions and one-year demotions, discipline that was put on hold after the Justice Department inspector general initiated an investigation.

INS supervisors told the Office of Special Counsel that the INS punished the agents – local Border Patrol union president Dan Hall and local vice president Robert Lindemann – for violating a media gag order.

The special counsel office ruled that the move was retaliation and a violation of the federal whistle-blower act. The Justice Department inspector general agreed.

It is the fourth time in four years that the INS has been taken to task by the independent Office of Special Counsel for retaliating against whistle-blowers who either testified before Congress, talked to investigators or talked to reporters. In each case, the INS reversed the disciplinary actions.

"We were doing what we felt necessary to make America a safer place," said Hall, 41. "I took an oath to defend and protect the U.S. Constitution, not the immigration service."

Lindemann, 40, a former Marine who has spent his career with the government, said the actions have been hard on their families. "To be turned on like this, it is just devastating," he said.

Justice Department Inspector General Glenn A. Fine, whose office also investigated the Detroit case, essentially agreed that the discipline was likely in violation of the whistle-blower act.

"We seriously question the decision to propose discipline against Hall and Lindemann and believe it would not be upheld," Fine wrote INS Commissioner James W. Ziglar. "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."

INS spokesman Russell A. Bergeron Jr. declined to comment yesterday on the special counsel and IG reports because they "address issues that are the subject of an ongoing personnel action."

The agency "does not prohibit employees from speaking to the media and does not discipline employees for simply talking to the media," he said, but added that "employees have a responsibility to insure that the safety of fellow officers and private citizens as well as the service's national security efforts are not compromised by comments made to the media."

In the Detroit case, the special counsel found internal e-mails from the agents' supervisor, Detroit sector chief Dan Geoghegan, to managers indicating he was upset with a challenge to authority.

"The president of the Local [union] deemed it necessary to independently question our readiness in a public forum," Geoghegan said, according to the special counsel's report. He also told managers they must take a "stance which bears no tolerance for dissent" and to "view resistance from the rank & file as insubordination."

After Hall appeared in media reports, he repeated his most serious allegation to Congress. He said some agents routinely failed to make criminal background checks on people caught crossing the border illegally.

He thought he recognized one person who had been detained and released as appearing on a Justice Department watch list after Sept. 11. "When I saw that name," Hall said, "I almost got sick."

An INS attorney this week told members of Congress and the Office of Special Counsel that the agency would not back down on disciplining the agents.

The INS move against Hall and Lindemann has sparked outrage from Sen. Charles E. Grassley (R-Iowa), a chief advocate of whistle-blower laws, and Sen. Carl M. Levin (D-Mich.), author of the whistle-blower protection act and the lawmaker who recruited Hall to speak at a hearing last fall.

Levin said that "given the kind of massive failures we've seen" at the INS, it was incredible for the agency "to be spending time and money pursuing this case. . . . It is further evidence frankly that this agency needs a major overhaul."

Grassley was particularly peeved that officials considered firing the two agents while the managers involved in two other recent high-profile snafus involving known terrorists or the Sept. 11 attacks have been reassigned or been given "slaps on the wrist." Managers were reassigned this month when a flight school received notification about a visa status change on the two suspected lead hijackers in the World Trade Center attacks.

© 2002 The Washington Post Company



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