Rolling Stone Psy-Ops Article Exposes Another Breakdown in Military Whistleblower Protections (UPDATED)

By Nick Schwellenbach

Rolling Stone’s Michael Hastings has written another article that’s gone viral. Here’s how it opens:

The U.S. Army illegally ordered a team of soldiers specializing in “psychological operations” to manipulate visiting American senators into providing more troops and funding for the war, Rolling Stone has learned—and when an officer tried to stop the operation, he was railroaded by military investigators.

The orders came from the command of Lt. Gen. William Caldwell, a three-star general in charge of training Afghan troops—the linchpin of U.S. strategy in the war. Over a four-month period last year, a military cell devoted to what is known as "information operations" at Camp Eggers in Kabul was repeatedly pressured to target visiting senators and other VIPs who met with Caldwell. When the unit resisted the order, arguing that it violated U.S. laws prohibiting the use of propaganda against American citizens, it was subjected to a campaign of retaliation.

“My job in psy-ops is to play with people’s heads, to get the enemy to behave the way we want them to behave,” says Lt. Colonel Michael Holmes, the leader of the IO unit, who received an official reprimand after bucking orders. “I’m prohibited from doing that to our own people. When you ask me to try to use these skills on senators and congressman, you’re crossing a line.”

The idea that the military is misdirecting resources intended to help us fight the war to instead manipulate Congress is bad enough. But Hastings’ piece could also point to a systemic weakness in military whistleblower protections. As the story goes, the Department of Defense Inspector General (DoD IG) failed to recognize Lt. Col. Holmes as a whistleblower whose disclosures were protected:

Holmes, believing that he was being targeted for questioning the legality of waging an IO [information operations] campaign against U.S. visitors, complained to the Defense Department’s inspector general. Three months later, he was informed that he was not entitled to protection as a whistleblower, because the JAG [Judge Advocate General's Corps] lawyer he consulted was not “designated to receive such communications.”

From POGO’s perspective, this is ludicrous. It’s natural for a service member to go JAG attorneys for advice, particularly on a potentially illegal matter.

The Holmes case appears to indicate a weakness in military whistleblower protections.  It raises the question: what constitutes a protected channel for military whistleblower disclosures? We’ve been told by DoD insiders that it is the DoD IG, the service member’s chain of command, and Congress. (POGO has posed the question to the DoD IG and will update this post if warranted.) The JAG attorney, Capt. John Scott, handled information operations—could Scott been seen as within Holmes’ chain of command or have been seen as another kind of protected channel? We have asked the DoD IG for comment.

UPDATE 2/25/2011:  "All lawful communications made by military members to an IG or Member of Congress are protected under 10 U.S.C. 1034, 'Military Whistleblower Protection,'" the DoD IG e-mailed POGO this afternoon. The DoD IG added:

In addition, communications made to DoD audit, inspection, investigation, or law enforcement organizations; a member's chain of command; or other entities designated by regulations or established administrative procedures to receive such Communications are protected--if the communication discloses information the military member reasonably believes evidences a violation of law or regulation, gross mismanagement, a gross waste of funds or other resources, an abuse of authority, or a substantial and specific danger to public health or safety.

POGO also asked the DoD IG "Given the fact pattern in Holmes' case, was there anyway within the bounds of the Military Whistleblower Protection Act that MRI could have substantiated a retaliation claim?"  The DoD IG answered that "Under 10 USC 1034 a protected communication is a key element to move a case forward into an investigation."

This is not the first time the system of military whistleblower protections has seemed to fail. We’ve written about the systemic problems with the DoD IG and the Military Whistleblower Protection Act in the past (see here, here, here, and here).

POGO has learned that currently the DoD IG is conducting an “Independent Review of MRI outcomes” (MRI refers to Military Reprisal Investigations) because of a perception that there is an unusually low substantiation rate of military retaliation complaints by MRI.  UPDATE 2/25/2011: The DoD IG commented that "Internal Quality Assurance reviews are common in IG organizations."

In the second half of fiscal year 2010, “DoD IG and service IGs received 347 complaints of whistle-blower reprisal and closed 359 cases,” according to the DoD IG’s most recent semiannual report. “Of the 359 cases, 294 were closed after preliminary analysis determined further investigation was not warranted, and 65 were closed after investigation. Of the 65 cases investigated, 11 (17 percent) contained one or more substantiated allegations of whistleblower reprisal.”

It’s a 17 percent substantiation rate only if you set aside all the cases “closed after preliminary analysis determined further investigation was not warranted”—otherwise the substantiation rate is about 3 percent (11 cases with at least one allegation substantiated out of 347). Was Holmes’ case closed after “preliminary analysis” or after an investigation? We have asked the DoD IG’s press office for comment and will add it in if they get back to us.

UPDATE 2/25/2011: "We determined LTC Holmes' complaint did not meet basic criteria for investigation because he did not make a communication to a person designated to receive protected communications under the statute," the DoD IG e-mailed POGO.

Nick Schwellenbach is POGO's Director of Investigations. Follow Nick on Twitter.

Image by Flickr user Drew Coffman, used under Creative Commons License.

Related:

• Largely Missing From the WikiLeaks Debate: The State of Military Whistleblower Protections
• Leaked Assessment Says Deficiencies Have Plagued the Military Whistleblower System
• The Pentagon Must Protect Whistleblowers

Comments

[Pam Baragona]

The LTC Holmes complaint may have also become the victim of cutbacks. This week DOD shut down 17 of their DODIG offices. It seems questionable to say Holmes did not meet the criteria because of not using the DOD IG communication when the backlog for investigators to respond is in itself in trouble.
Talk to any DOD IG agent as well off the record and you will learn about the unrealistic expectations to meet the demand of MRI investigations, their unsupported relationship with DOD and a constant internal upheaval of staff to do the work

[john]

I spent 4 years in the Marines. 1964-1968. There is a code that protected everyone in times of combat. It is called the chain of command. You go outside the chain and the system breaks down. It is the system and code of watching "each others back" that protects all marines in the most crucial of times. If that system of breaks down who will watch your back. You will be left with covering your own ass. That does not work ever. If you are allowed to go outside the chain for any reason it makes a statement. Real simple..... It implies that I dont have to do what I have been told. Or I think my job is doing the wrong thing, or or or. It allows you to begin thinking for yourself inspite of your marine team. If you counter act an order because you dont want to do what you have been ordered to do where will it stop... ?
Think about it. The chain of command exists for a reason. It exists to protect the members of the team and continue to reinforce the team. It makes very good sense. What if every member of a football team were allowed on every play to act the way they thought they should act or react. Or to initiate their own act or reaction. Chaos and injury. The team that remained a team would destroy the chaotic team. IT is pretty simple.
People keep forgetting that the military is not the civilian system. It does not operate under civilian rules because it requires a team approach and the outcome is more severe. The UCMJ was created for a purpose let it remain that way.

[Richard]

How do we know the recent military psy ops disclosure isn’t part of a psy ops operation to manipulate the entire country by diverting attention from death and failure in Afghanistan? No one has written or disclosed exactly what words psy ops soldiers use to manipulate U.S. Senators. Would disclosure let loose a weapon of mass manipulation that would unravel society as spouses employ these tactics against each other, students against their teachers, politicians against the electorate? Would democracy crumble if a politician, say a governor, were to be manipulated into speaking candidly by, say, a telephone call from someone claiming to be a wealthy, powerful, manipulative contributor? The horror!

[Rebel]

I had a difficult time separating truth from fiction in the article. If LTG Caldwell, his chief of staff, and others were in fact violating U.S. law, then LTC Holmes and his team failed to bring it to the attention of the chain of the command. If the chain of command failed to do anything then contact either the DoD or CENTCOM I.G. To me there was an apparent lack of courage, candor, and commitment by LTC Holmes and others to report it at the time. At the end it appeared that that this team led by LTC Holmes had a difficult time with a challenging mission.