U.S. Customs and Border Protection made a “demonstrably false” claim to the Post when it denied that it had been ordered to take “corrective action” after demoting whistleblowers, says Sen. Chuck Grassley.
Grassley (R-Iowa), 89, wrote in a letter to Biden officials on Monday that CBP falsely claimed it was never asked to correct the situation, which it caused by demoting three employees for disclosing errors in the agency’s criminal DNA collection.
Grassley – who has been called the “patron saint of whistleblowers” – said the U.S. special counsel’s office informed him twice that it had actually “requested corrective action from CBP” after a federal investigation found that employees had been retaliated against were based on a copy of his letter to Homeland Security Secretary Alejandro Mayorkas and acting CBP Commissioner Troy Miller.
CBP had told the Post that OSC had not sought any “corrective action” involving the agency — and the affected employees had not yet been restored to their previous positions.
“Given the demonstrably false public statement, when will CBP issue a public retraction to clarify that OSC has indeed requested corrective action?” Grassley said.
Grassley also sent a letter to Mayorkas on Aug. 18 urging him to take “immediate corrective action” for the whistleblowers, but received no response by a Sept. 1 deadline he set.
“When can I expect a response to my letter dated August 18, 2023 regarding your plans to take corrective action regarding the retaliatory conduct against these whistleblowers and to hold those who retaliated accountable?” he asked Mayorkas and Miller in his latest letter and set a second deadline of September 18th.
CBP did not respond to a Post request for comment.
In 2018, CBP closed its weapons of mass destruction division after three whistleblowers — Fred Wynn, Mike Taylor and Mark Jones — highlighted that their agency had failed to collect DNA from detainees since 2009.
The failure to collect DNA from more than 5 million people during that time allowed some violent criminals to evade justice, according to special counsel Henry Kerner, who called it “an unacceptable neglect of the agency’s law enforcement mission.”
“The agency’s failure to comply with the law has resulted in individuals later accused of violent crimes, including homicide and sexual assault, being able to evade detection, even if they have been arrested multiple times by CBP or Immigration and Customs Enforcement (ICE). were arrested,” Kerner told then-President Donald Trump Congress in letters dated August 21, 2019.
The DNA Fingerprint Act required all federal law enforcement agencies to collect DNA from detainees early in the Obama administration, but the law was then narrowly interpreted by then-Attorney General Eric Holder to exclude DHS and CBP.
“There may be situations in which the collection of DNA samples is not operationally feasible due to the sudden mass influx of aliens without immigration status,” Holder wrote in a July 22, 2010, letter to then-Department of Homeland Security Secretary Janet Napolitano.
According to a November 18, 2010 memo, Holder also gave DHS an indefinite amount of time to “implement his agencies’ collection of DNA samples from detainees” due to an apparent lack of resources.
The CBP whistleblowers worked on a pilot program to implement the DNA law between 2016 and 2018 – and turned to OSC in mid-2018 to expose the errors after their department was closed and they suffered reputational damage.
The U.S. Merit Systems Protection Board is currently appealing the case, but that hasn’t stopped DHS and CBP from taking further retaliation, Grassley said.
The special counsel found that the whistleblowers were passed over for performance awards and various positions.
Taylor and Jones served in federal law enforcement for decades, but they have also since had their badges, firearms and identification cards revoked, according to statements they made to the DHS Office of Inspector General and the DHS Office of General Counsel last year .
Taylor was also stripped of his retirement savings and future pension benefits.
Jones, who served as acting director of the WMD program, was passed over for the director position in a new office called the Operational Field Testing Division, which conducted similar law enforcement tasks.
All three were ultimately placed into “constructive retirement” over their whistleblower revelations after CBP attempted to “make an example” of them, a source familiar with the investigation previously told The Post.
The OSC concluded that CBP’s actions were motivated “by the agency’s displeasure with the complainants’ perceived and actual involvement in exposing the agency’s willful, decades-long failure to implement a public safety law.” said a report dated December 2nd. 2021, letter summarizing findings and first published by The Post.
An OSC spokesperson told The Post when asked for comment on Grassley’s letter on Tuesday: “Due to ongoing litigation, OSC is unable to comment at this time.”