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Thinking about telling on your boss? Whistle blowers face many retaliatory perils

When one thinks of the term whistle blower, most think about Frank Serpico of NYPD fame. Serpico’s tough, gritty persona allowed him to turn the tables on corrupt cops and his no nonsense, take no prisoners attitude forced the NYPD to take a good hard look at the way they conducted police business. His harrowing “Lamp Lighting” story eventually became a Hollywood major motion picture starring Al Pacino, another Hollywood tough guy.

Whistle blowers or “lamp lighters” as Serpico refers to them as often to do not make the big screen, but their stories are just as compelling and very hard to read about. Julia Davis’ experience is one such story; Blackhawk helicopters, sneak and peeks, eaves dropping, multiple agents tailing her every move and finally two false arrests.

It seems unimaginable for someone who emigrated from Communist Ukraine hoping to leave behind the corruption and make a fresh start in America would experience such a plight. Little did she know her journey to the U.S. would be meet with the same Draconian government policies Davis thought she was leaving behind. Davis made the trip to America with the hopes of becoming a special agent in the FBI. After she completed her college education in Russia’s equivalent of the NASA program, Davis packed her bags with stars and stripes in her eyes.

Her enthusiasm wouldn’t last too long, the FBI informed her she would have to get her start in law enforcement with another agency, get a few years under her belt and reapply. She did just that and settled on the Customs and Border Protection (CBP) agency. Meanwhile, she continued prepping for her dream job that would take her to Quantico, Virginia. She attended an accelerated foreign language class in Farsi because after 9/11 the FBI was looking for candidates who spoke the Middle Eastern language. (Davis is fluent in five languages)

Julia Davis’ CBP nightmare

Davis is a former Customs and Border Protection Officer, who was born in Kiev, Ukraine, educated as an Aviation/Spacecraft Engineer with a Masters degree, who speaks several languages fluently. Davis’ inquisitive mind and lifelong interest in the criminal justice system prompted her to apply for federal employment. She scored 100 percent on her tests to become a federal agent with the Department of Homeland Security and received an offer of employment with Department of Homeland Security as a Customs and Border Protection (CBP) agent.

As an immigrant herself, Davis sought her American dream by striving to serve her new country. In early 2002, Davis graduated with honors from the Federal Law Enforcement Training Center, receiving an Outstanding Achievement Award. She reported to her duty station at the San Ysidro, CA Port of Entry in San Diego and quickly learned her new job. She built good relationships with coworkers, received outstanding performance reviews and started to move up the ranks within CBP.

But her American dream was shattered when she reported a series of ongoing national security breaches pertaining to deficient processing and subsequent entry of subjects from countries with terrorist ties, into the United States, as well as her concern over the removal of metal detectors and X-ray equipment from the Port inspection areas and the reduction in the security staff.

Davis noted that she found these developments “alarming and disturbing” given the “very high-security level and risk” involved at one of the busiest and largest points of entry into the country. Not wanting to let this go she filed a report to the Federal Bureau of Investigation’s Joint Terrorism Task Force about another potential security breach at the Port. She noting that an unusually high number of individuals from suspect, or “Special Interest Countries” entered the United States over a ten-hour period on a national holiday, known to be a potential entry time for terrorists.

The memo was given to CBP employees as specific Intelligence alerts that were issued, designating 4th of July a “date to watch,” specifically stating in the intelligence dissemination Muster Agenda: “It has been purported that al-Qaeda leaders may infiltrate the United States borders via Mexico possibly during significant holidays or anniversaries.”

Davis noted that she raised the issue with the Port Director and was told to contact the Intelligence Unit Office. However, in what appeared to be a further breach of security, there was not a single Intelligence officer on duty in the Intelligence Unit despite the heightened risk of entry of terrorists over the summer holiday. This failure and deficiency was pointed out by Davis and directly reflected on the Office of Professional Responsibility within the DHS’s Immigration and Customs Enforcement.

It would be the same agents that should have been on duty to handle this matter and whose absence was called out by Davis in her report to the FBI Joint Terrorism Task Force, which included ICE/OPR Agents Jeffrey Deal and Herbert Kaufer. Her whistle-blowing activities garnered media attention and embarrassed the DHS. Former CBP Commissioner Robert Bonner was approached by a Los Angeles Times reporter with respect to Davis’ report to the FBI/JTTF.

The Agency responded by subjecting her to multiple investigations (as many as 19 during her employment and over 34 after she involuntarily resigned from the CBP agency), aircraft, land and vehicular surveillance and referred to her as a “Domestic Terrorist,” raided her house with a Blackhawk helicopter and a Special Response Team (with a total of at least 28 armed agents involved in that operation). This caused Davis and her husband, BJ , to be maliciously prosecuted, falsely imprisoned (twice) and actively interfered with her potential employment.

The Davis’ found that these actions were spearheaded by the same ICE/OPR personnel that were embarrassed by Davis’ report to the FBI/JTTF and media scrutiny that followed.

All criminal charges against Davis and her husband were dismissed, including a finding of factual innocence. Additionally, the court ordered the government to return all items taken in the two warrantless searches of the Davis’ residence and office.

To date, the CBP agency has not complied with that court order. The government’s attack on Davis, following her reports of national security lapses at the Port of San Ysidro, was clearly motivated by the government’s desire to chill Davis’ free speech and to incapacitate her at any cost before she could do any more damage to the reputation of her former employer.

It was also undoubtedly meant to improperly deter other officers from coming forward with allegations of discrimination or whistle-blowing disclosures. In light of the years of false allegations the Davis’ brought a lawsuit against the United States, ICE/OPR Agent Kaufer and CBP/OPR Agent Deal for their misconduct, abuse of government resources and selective prosecutions. The trial is currently scheduled to take place in March of 2010.

Past whistle blower laws

In the United States, legal protection for whistle blowers varies depending on the subject matter and the legal jurisdiction. The first U.S. law adopted specifically to protect whistle blowers was the Lloyd-La Follette Act of 1912, which guaranteed the right of federal employees to furnish information to Congress. Victims of whistle blower retaliation have to be aware of the deadlines and means for filing proper complaints. Examples of the deadlines involved are as follows:

10 days – The time limit for Arizona State Employees and Ohio public employees;

30 days – The time limit for environmental whistle blowers to make a written complaint to the Occupational Safety and Health Administration [OSHA].

45 days – The time limit for federal employees to file a complaint of discrimination, retaliation or other violations of their civil rights laws with their agency’s equal employment opportunity (EEO) officer.

90 days – The time limit for airline workers and corporate fraud whistle blowers to make their complaint to OSHA.

180 days – The time limit for nuclear whistle blowers and truck drivers to make complaints to OSHA and for victims of retaliation against union organizing and other concerted activities to improve working conditions to the National Labor Relations Board (NLRB).

According to Project On Government Oversight (POGO), the Whistle blower Protection Act (WPA) has “suffered from a series of crippling judicial rulings [that] have rendered the Act useless, producing a dismal record of failure for whistle blowers and making the law a black hole.” Thomas Devine, one of the WPA’s key advocates stated: “My baby turned out to be Frankenstein.”

During the entire Bush administration, the U.S. Merit Systems Protection Board (MSPB) ruled in favor of whistle blowers in only two cases. Since 1994, Federal whistle blowers have lost more than 98.5 percent of cases at the Federal Circuit Court of Appeals.

The Government Accountability Project (GAP) offered praise for two MSPB appointments by President Obama. Unlike the Bush administration appointees who compiled a 1-44 track record against whistle blowers, these leaders are seasoned veterans with a proven track record of commitment to the merit system throughout their careers.

Last year, June of 2009, Washington, D.C. issued a MSPB ruling in Robert J. MacLean v. Department of Homeland Security Agency. MacLean blew the whistle on the Department of Homeland Security’s Transportation Security Agency (TSA) plan to improperly remove U.S. Air Marshals from long distance flights during a heightened terrorist alert.

MacLean was concerned that the TSA’s plan posed a serious threat to public health and safety. After MacLean’s internal warnings were ignored, he made a public disclosure that was protected under the Whistleblower Protection Act. The Department of Homeland Security (DHS) subsequently fired MacLean in flagrant violation of the law. The MSPB declined to review this retroactive relabeling and upheld MacLean’s termination.

Agencies through the country continue to work with whistle blowers or lamp lighters across the country for the brave actions of everyday Americans in reporting wrong doing by governmental or law enforcement agencies. One such group is the Law Enforcement Advocates Council. Davis is determined to help other government whistle blowers and recently joined the Board of Directors for the (LEOAC) as a Vice President.

“I am most humbled that we were able to add former CBPO Julia Davis to our board as a Vice President. Julia brings a wealth of knowledge and experience as a former law enforcement officer, entrepreneur, writer, producer, and scientist. We share a vision for what needs to be done to improve the security of America, and improve the the protections and civil rights of our law enforcement officers, especially whistle blowers who just want to do their job and protect our nation,” said founder Andy Ramirez.

“I first learned of her case about two years ago, and included it as a key aspect of my report, Unjustifiable & Impeachable, which addressed DOJ, DHS, and the Courts. Anyone who is not familiar with Julia’s story needs to take the time to learn her story as her case demonstrates everything wrong with how our government abuses their powers to cover-up their security compromises. Our government failed Julia and has given her their worst. She, being a person of high integrity and honor, has stood tall in the finest traditions of America’s best and brightest. In my opinion, her case should be textbook reading for all law enforcement officers who will learn from a heroic and courageous patriot.

Julia brings a fresh perspective to our board, especially given her incredible life story having been born behind the Iron Curtain. She knows what governments can do to a society’s citizens firsthand. I know she will do all she can to help restore the rule of law, a sense of justice, and fair play, which is a hallmark of America. We share the goal of ensuring that officers can do their job without the fear of false charges being brought against a citizen as a form of retaliation and retribution, or political intrigue, or to cover up a crime and gross incompetence,” Ramirez finished.

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