|If you're a military whistleblower, we wouldn't blame you for feeling like your reprisal complaint went into one of these.|
By BRYAN RAHIJA
Pentagon investigators mishandled more than half of a set of whistleblower reprisal cases, according to a damning internal assessment report obtained by the Project On Government Oversight.
As POGO Executive Director Danielle Brian told iWatch's R. Jeffrey Smith and Aaron Mehta, "This devastating report proves one of our worst fears—that military whistleblowers have systematically been getting a raw deal."
The assessment evaluates 156 of cases from fiscal year 2010 handled by the Department of Defense office tasked with investigating complaints of military whistleblower reprisal, the Office of Inspector General's (OIG) Directorate of Military Reprisal Investigations (MRI). MRI has since merged with the OIG's Civilian Reprisal Investigations unit to form the Pentagon's Whistleblower Reprisal Investigations unit.
Among the many reasons that the review team disagreed with MRI's original findings was that it had a broader view of what constituted an unfavorable personnel action against whistleblowers (for example, early redeployment or issuance of letters of counseling) than MRI.
The review team also believed MRI did not collect enough documentation and did not resolve issues before it decided to close cases. Additionally, MRI investigators put the onus of documenting a complainant’s allegations on the complainant, while the review team believed MRI should have tried to obtain documents through official channels.
The review team also found that MRI investigators didn’t always follow up. In one example, the review team reported that the “Complainant stated in his complaint he was deployed and having connectivity problems, yet this was closed after sending only a single email requesting documents.”
These findings are troubling to say the least. But POGO isn't the only party who's up in arms—Senator Charles Grassley (R-IA), the Ranking Member on the Senate Judiciary Committee, expressed "grave concern" about the report's findings.
"Heads must roll," Grassley wrote in an April 24, 2012, letter to DoD’s acting IG. “The root cause problems identified in this report must be addressed and resolved immediately.”
Grassley noted that “So long as the dysfunctional MRI process is swept under the rug, statutory protections for military whistleblowers will remain largely ineffective and compromised.”
Tom Devine, the legal director at the Government Accountability Project, cast the report in a similar light: "This report helps to confirm what everyone knew in practice—that the IG has not respected the law’s mandate."
Pentagon Acting IG Lynne A. Halbrooks defended her office in an April 26 reply to Senator Grassley. "I strongly disagree with the assertion in your letter that OIG officials knowingly ignored the law and showed disrespect for military whistleblowers and the core IG mission," Halbrooks wrote.
The reply, however, left unclear who, if anyone, would be held accountable for mishandling the cases, or precisely what changes would be or have been implemented.
The review team divided cases into three categories—declinations, preliminary inquiries, and full investigations. For declinations, the review team assessed “whether a complaint should have proceeded to the Preliminary Investigation stage.” For preliminary inquiries, the review team evaluated “whether the case contained ‘sufficient evidence’ to proceed to a full investigation or not.” And for full investigations, the team “analyzed all the evidence contained in the file and agreed or disagreed with MRI’s conclusion as to whether or not allegations of reprisal were substantiated."
The review team disagreed with MRI’s decision in 34 of the 50 declinations assessed (68.0 percent), 40 of the 88 preliminary inquiries (45.5 percent), and 8 of the 18 full investigations (44.5 percent). All told, the review team disagreed with MRI’s decision in 82 cases—a staggering 52.6 percent of the time.
Bridget Serchak, the DoD OIG’s chief spokesperson, confirmed to POGO that the totals listed in the report's executive summary and conclusion were mistakenly swapped because of a math error.
The report makes clear that the review team did not always conclude that mishandled cases would have been resolved in favor of whistleblowers, but only that, “The Team could not affirm the decision because the information in the files did not support it [the decision] or necessary investigative steps were not completed.”
POGO also obtained three appendices to the report, which offer notes on each case that the team assessed and provide a tracking number for each case.
POGO has reproduced the fields in the cases where the review team disagreed with MRI's decision to decline, and encourages any complainants who can document that they were indeed the individuals associated with the case tracking number to contact the IG. It appears many were shortchanged by the investigative agency that is supposed to objectively and professionally investigate their claims of reprisal.
The internal review is only the latest caustic assessment of MRI. Earlier this year, the Government Accountability Office (GAO) issued its own critical report on the handling of military reprisal cases, and in 2009, the Department of Justice Office of Inspector General conducted a review that drew similar conclusions.
Amid all the disturbing findings, the OIG does deserve credit for undertaking the review. As Senator Grassley put it, the review is "an excellent, hard-hitting example of self-examination." (He also wrote that "It may be the best OIG review I have ever seen.")
It appears that the IG may be reviewing some of the cases in response to the report. iWatch News reported that the acting IG's chief spokesperson "said initially her office decided that the cases of concern 'were decided on the basis of the DOD IG policy in place at the time. After further consideration, however, we are now reviewing some of the cases.'”
That's a decent start, but the OIG should go further. The OIG should contact complainants whose cases' closure the review team disagreed with and offer to re-open the cases upon the complainants' request. It should also contact other complainants whose cases were closed in FY 2010 but not covered in the assessment and offer to have a review team examine whether their cases were closed improperly.
POGO echoes Senator Grassley's calls for accountability and reform. We owe military whistleblowers every possible opportunity to safely expose wrongdoing, and this report shows that the system has let them down. It's imperative that we fix it.
Bryan Rahija edits POGO's blog.
Image via kirinqueen.