US border agency made ‘demonstrably false’ claim to Post about demoted whistleblowers: Grassley

US Customs and Border Protection made a “demonstrably false” claim to The Post when it denied it was instructed to take “corrective action” after demoting whistleblowers, Sen. Chuck Grassley says.

Grassley (R-Iowa), 89, wrote in a letter to Biden officials Monday that CBP falsely claimed it was never asked to rectify the situation it created by demoting three employees for revealing failures in the agency’s criminal DNA collection.

Grassley — who has been called “the patron saint of whistleblowers” — said the US Office of the Special Counsel has twice informed him that it in fact “did seek corrective action with CBP” after a federal probe found the employees were retaliated against, according to a copy of his letter sent to Homeland Security Secretary Alejandro Mayorkas and CBP Acting Commissioner Troy Miller.

CBP had told The Post that OSC did not seek “corrective action” involving the agency — and the targeted employees have yet to be reinstated to their previous positions.

“In light of CBP’s demonstrably false public statement, when will it issue a public retraction to make clear that OSC did in fact seek corrective action?” Grassley said.

Grassley also sent a letter to Mayorkas on Aug. 18 asking him to “immediately institute corrective action” for the whistleblowers but did not hear back by a Sept. 1 deadline he set.

“When can I expect a response to my August 18, 2023 letter with respect to your plans to initiate corrective action regarding the retaliatory conduct against these whistleblowers and hold the retaliators accountable?” he asked Mayorkas and Miller in his latest letter, setting a second deadline of Sept. 18.

CBP did not respond to a Post request for comment.

In 2018, CBP shut down its Weapons of Mass Destruction Division after the three whistleblowers — Fred Wynn, Mike Taylor and Mark Jones — drew attention to their agency having failed since 2009 to collect DNA from detainees.

The failure to collect DNA for 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 dereliction of the agency’s law enforcement mandate.

“The agency’s noncompliance with the law has allowed subject subsequently accused of violent crimes, including homicide and sexual assault, to elude detection even when detained multiple times by CBP or Immigration and Customs Enforcement (ICE),” Kerner told then-President Donald Trump and Congress in letters Aug. 21, 2019.

The DNA Fingerprint Act required all federal law enforcement agencies to collect DNA from detainees at the start of the Obama administration, but the law was then narrowly interpreted by then-Attorney General Eric Holder to exclude DHS and CBP.

“There could be situations in which DNA sample collection is not operationally feasible because of sudden mass influxes of aliens without immigration status,” Holder wrote in a July 22, 2010, letter to then-Department of Homeland Security Secretary Janet Napolitano.

Holder also gave DHS an indefinite amount of time to “to implement arrestee DNA sample collection by its agencies” because of an apparent lack of resources, according to a Nov. 18, 2010, memo.

The CBP whistleblowers worked for a pilot program to implement the DNA law between 2016 and 2018 — and approached OSC in mid-2018 to reveal the failures after their division was closed down and they suffered reputational harm.

The US Merit Systems Protection Board is currently appealing their case, but that did not stop DHS and CBP from taking further retaliatory actions, according to Grassley.

The whistleblowers have been passed over for performance awards and various positions, the Special Counsel found.

Taylor and Jones served for decades in federal law enforcement but have since had their badges, firearms and credentials stripped as well, according to disclosures they made to the DHS Office of the Inspector General and DHS Office of the General Counsel last year.

Taylor also had his retirement coverage and future pension payments taken away.

Jones, who served as acting director of the WMD program, was passed over for the director position at a new office conducting similar law enforcement work called the Operational Field Testing Division.

All three were eventually placed in “constructive retirement” for their whistleblower disclosures after CBP sought to make an “example” of them, a source familiar with the investigation previously told The Post.

OSC found that CBP’s “actions were motivated by the agency’s displeasure with the Complainants’ perceived and actual involvement in bringing to light the agency’s intentional, decade-long failure to implement a law designed to protect public safety,” according to a Dec. 2, 2021, letter summarizing its findings and first reported by The Post.

A spokesman for OSC told The Post when reached for comment on Grassley’s letter Tuesday, “Due to the ongoing litigation, OSC is unable to comment at this time.”