Watchdog Finds Majority of Pentagon Whistleblowers out of Luck
By: Mandy Smithberger | October 13, 2017
Whistleblowers are essential for Inspectors General to uncover waste, fraud, and abuse. A new report by the Government Accountability Office (GAO) found significant inconsistences in how civilian, contractor, and intelligence whistleblower allegations are handled by the Department of Defense Inspector General (DoD IG).
The report is a slog—reviewing policies in place but not always whether they’re actually being implemented or if they are effective. But the GAO’s interviews with investigators and supervisors reveal that the processes for reviewing whistleblower cases are inconsistent at best, raising questions about whether the office can fairly and appropriately handle those who come forward with allegations of misconduct.
While DoD IG appears to be the place Department of Defense whistleblowers who experience retaliation should go, DoD IG declines to pursue the vast majority of the complaints they receive. DoD IG is actually only the primary investigative body for DoD contractor, subcontractor, grantee, and subgrantee whistleblowers, non-appropriated fund instrumentality (NAFI) whistleblowers, and civilians under the Defense Civilian Intelligence Personnel System (DCIPS). DoD IG refers most military whistleblowers to their military service IGs for investigation, with oversight by DoD IG. Most DoD civilians (those paid through appropriated funds) have their cases dismissed. DoD IG expects, and usually instructs, DoD civilians not under the DCIPS to turn instead to the Office of Special Counsel (OSC), the agency responsible for protecting the merit system and enforcing many provisions of the Whistleblower Protection Act. In some cases the DoD IG may choose to hold on to a case if it “may be of interest.” DoD IG’s guide to filing a reprisal complaint says this includes reprisal involving senior officials, security classification, matters within the intelligence community, or DoD IG sources. DoD IG told GAO cases they would investigate themselves could also include sexual assault.
From fiscal year 2013 to fiscal year 2015 DoD IG dismissed without investigation 91 percent of the civilian, contractor, and subcontractor complaints it received. The GAO found a number of significant weaknesses in DoD IG’s processes for declining cases. Interviewing complainants is key and a best practice, since most whistleblowers never thought they would become whistleblowers and consequently don’t know the standards and evidence necessary to show they have a potential reprisal case. Yet, the GAO found DoD IG declined 63 percent of the cases for which they are the primary investigative body (which GAO refers to as “nondiscretionary”) without interviewing the whistleblower. Moreover, a quarter of the declined cases the GAO reviewed “were declined for reasons inconsistent with DODIG guidance and the reasons DODIG officials told us may warrant a case being declined.”
The number of cases declined by DoD IG has been an ongoing concern for the Project On Government Oversight, and raises questions about whether there is effective and fair enforcement of whistleblower protections. A large part of the problem, the GAO found, was that the DoD IG had “no consistent understanding of why and when cases should be declined,” with three out of the four supervisors “unsure whether any policy or criteria for declining cases existed.”
DoD IG has made several improvements to the timeliness of its investigations, correcting many of the problems previously identified by POGO and the GAO. Timeliness is essential to effective investigations and the ability to hold accountable those who the IG believes have retaliated against whistleblowers. But this must also be balanced against the need for quality investigations and interviews to provide whistleblowers their due process rights and to uphold the intent of the law. In this case improved timeliness may be coming at a cost to a fair consideration of reprisal claims—one supervisory investigator told the GAO that declining cases was “’fostered’ by management” and “arose to improve timeliness.”
This subjective discretion for whistleblower cases creates a lot of confusion and raises questions of fairness and due process for people who want to report wrongdoing. Declining or referring these cases to other entities may also undermine the capacity of DoD IG to oversee the Department, since they don’t directly investigate most of the complaints they receive. Some IGs have seen that it is in their best interest to retain and prioritize whistleblower cases so that they can better spot misconduct and other problems. For example, the Department of Interior IG shifted its operations after realizing that they “don’t pay enough attention to the people who have the guts to step forward and tell us stuff.” The Interior’s Associate IG for Whistleblower Protection participated in weekly meetings with senior investigators and Hotline staff to sort through intake. DoD IG has set up a similar set of roundtables to review cases, but the majority of investigators told the GAO the meetings happened “infrequently or not at all.”
There remain concerns about the independence of reprisal investigations. A 2015 GAO report found DoD IG’s military reprisal investigations did not have an adequate process for monitoring potential conflicts of interest, which meant DoD IG could not ensure decisions regarding the independence of investigations was appropriate. GAO found similar weaknesses for the IG’s civilian investigations. In addition to a lack of process, 8 of the 28 investigators and supervisory investigators GAO interviewed raised concerns about bias in investigations. “Investigators stated examples of perceived bias that, if true, indicate a climate that may not be consistently favorable to independent and objective investigations,” the GAO wrote.
Incomplete case files also remain an issue, raising questions about both the accuracy and completeness of reprisal investigations. DoD IG’s internal policy requires case files be complete upon closure. The 2015 GAO report found key documents were uploaded after the IG closed the case in 77 percent of cases completed in fiscal year 2013. POGO obtained emails that showed the case management system was such a mess investigators had to “stand down” to fix the records, further delaying other investigative work. There has been improvement, but GAO still found that half of the fully investigated case files had documents uploaded more than 30 days after the case was closed, with the average change occurring 228 days after closure.
The report also highlights one of the challenges of whistleblowers seeking to raise allegations anonymously. Many whistleblowers who choose to report waste, fraud, or abuse anonymously do so because they fear they may be retaliated against if they report allegations under their own name. In the case of DoD IG, some whistleblowers have also raised concerns that the office would reveal their identity to their managers and subject them to additional retaliation.
Finally, the GAO had concerns about DoD IG’s ability to oversee the reprisal investigations conducted by intelligence component IGs (IGs for the Defense Intelligence Agency (DIA), National Geospatial-Intelligence Agency, National Reconnaissance Office, and National Security Agency (NSA)). DoD IG has the discretion to investigate these cases or refer them to the component IGs. Despite requirements for component IGs to provide timely notification to DoD IG of every reprisal allegation they receive, GAO found the NSA IG and DIA IG only reported investigations they were pursuing, and in several cases the notification was provided months after an investigation had been initiated. The shortfalls identified by the GAO thus far have actually made some of the intelligence component IGs consider reducing their reporting on reprisals to DoD IG.
Skeptics of whistleblowers, including some DoD IG officials, claim most whistleblower allegations are about personal problems. GAO’s review of the disclosures received by DoD IG found yet again this was not the case, and that 72 percent of the cases closed alleged a violation of law, rule, or regulation.
Whistleblowers go to IGs expecting them to be honest brokers of the law, particularly for laws designed to protect sources who advance their investigations. Unfortunately this report doesn’t give them much confidence their allegations about waste, fraud, and abuse will ever receive due consideration.