Pentagon: Whistleblowers left vulnerable

May 5, 2012

The Defense Department has inadequately protected from reprisals whistleblowers who have reported wrongdoing, according to an internal Pentagon report, and critics are calling for action to be taken against those who have been negligent.

The report, dated May 2011, accuses the officials, who work in the Defense Department’s Office of Inspector General, of persistent sloppiness and a systematic disregard for Pentagon rules meant to protect those who report fraud, abuses and the waste of taxpayer funds, according to a previously undisclosed copy. The report was obtained by the Project on Government Oversight, a nonprofit watchdog group.

A three-person team of investigators, assigned to review the performance of the Directorate for Military Reprisal Investigations, concluded that in 2010, the directorate repeatedly turned aside evidence of serious punishments inflicted on those who had complained.

The actions included threatened or actual discharges, demotions, firings, prosecutions and a mental health referral. At least one of the alleged reprisals was taken because the complainer had written to Congress, an act that Pentagon regulations say is a “protected communication” immune from retaliation. Some of the other whistleblowers had alleged discrimination, travel violations and “criminality,” the report states.

In all, investigators disputed the directorate’s dismissal of more than half of the 152 whistleblowing cases it reviewed and called for it to revamp its procedures and start enforcing the protective rules.

Sen. Charles E. Grassley (R-Iowa), the Senate Judiciary Committee’s top Republican, called the report disturbing. “Heads must roll,” he said in an April 24 letter to Lynne M. Halbrooks, acting inspector general. “The root cause problems identified in the report must be addressed and resolved immediately.”

Halbrooks responded in an April 26 letter to Grassley that the reprisal investigations office now has new leadership but added that “I strongly disagree with the assertion” that IG officials knowingly ignored the law. “I stand behind the continued professionalism and dedication of our reprisal investigators, past and present,” she said.

The creation of the reprisal investigations unit grew out of hearings and legislation in the 1990s that spotlighted the military’s practice of ordering mental health evaluations for whistleblowers, a move that hindered their careers. The office, which is expanding this year from 31 to 51 employees, is responsible for investigating complaints of retaliation by troops and Pentagon employees and for overseeing such probes within the military services.

Under federal law, prohibited reprisals are adverse actions taken in response to protected disclosures, which involve reports of violations of laws or regulations, gross mismanagement, abuses of authority, and dangers to health and safety.

Report prompted changes

In response to the report, the Defense Department’s deputy inspector general for administrative investigations, Marguerite C. Garrison, last year reorganized the office and began an overhaul of its manual.

“The lessons learned . . . have proved vital to establishing more robust policies and procedures,” said Bridget Ann Serchak, a spokeswoman for Halbrooks.

Serchak also said the office had begun to review some of the cases that were disputed.

Independent experts and whistleblower advocates remain skeptical, however. Reports going back a decade have criticized the inspector general’s office for its handling of whistleblowers.

“This devastating report proves one of our worst fears — that military whistleblowers have systematically been getting a raw deal,” said Danielle Brian, executive director of the Project on Government Oversight, which obtained the report under the Freedom of Information Act.

In February, a report by the Government Accountability Office said that investigators routinely took too long to respond to complaints about alleged reprisals. It also said that investigators frequently used unreliable and incomplete data and case files, concluding that only 5 percent of closed case files were “complete.”

Complaints deflected

Critics also have complained that most allegations of misconduct are turned aside by the reprisal investigations office, often without any investigation.

“This report helps to confirm what everyone knew in practice — that the IG has not respected the law’s mandate,” said Tom Devine, legal director for the Government Accountability Project, a nonprofit advocacy group that has represented Pentagon employees in lawsuits challenging alleged reprisals.

The investigators said the office wrongly dismissed complaints by personnel threatened with punitive action on grounds that those actions had not yet been carried out. It also wrongly dismissed cases in which letters of reprimand, counseling or instruction were written against whistleblowers but not placed in permanent files — on the grounds that such “locally held” letters did not qualify as “unfavorable personnel actions.”

The reviewers said those decisions were contrary to a provision of the U.S. Military Whistleblower Protection Act of 1988, which bars officers or other superiors from taking or threatening to take unfavorable actions. The reviewers also said that when the office routinely ignored locally held letters that threatened discharge, reassignment, lower pay or any other change in duties, it violated “the plain language” of a 2007 Defense Department order.

Most details of the whistleblowing complaints, as well as the names of the complainers and the investigators who rejected their cases, were not included in the 17-page report.

But an appendix states that one case was closed on grounds that the complainer’s punishment was unrelated to his allegations of wrongdoing, even though an officer had acknowledged it was done in retaliation and the file included a quoted warning to “follow your chain of command or pay the price.”

In another case, “bias was found, but not addressed.” In another, investigators said an “allegation of criminality should have been reported/referred.”

In all, investigators disputed the office’s decisions to turn aside 82 of the 152 cases in the random sample it reviewed from fiscal 2010.

Smith is managing editor for national security at the Center for Public Integrity, a nonprofit, nonpartisan investigative news outlet. Mehta is a staff writer for the same group. Their stories appear at iwatchnews.org.

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