Part II of a series on military whistleblower protections.
More Investigators, New Policies May Improve Grim Substantiation Rate
There are many anecdotes suggesting that military whistleblowers have a particularly tough time seeking justice for alleged retaliation—for instance, take the story of former Air National Guard technician Gene McCarty, whose case is described in Part One of this series. But what about the bigger picture?
As it turns out, the picture is grim. Of the hundreds of official military whistleblower reprisal complaints submitted each year, the vast majority are dismissed by the professionals charged with protecting our military whistleblowers. The OIG stood by complainants less than ten percent of the time during fiscal year 2011, according to data provided by the Department of Defense Office of Inspector General (DoD OIG).
All of these claims are handled by or are overseen by an office within the DoD OIG formerly called Military Reprisal Investigations (MRI).
The substantiation rate for FY 2011 period is on par with previous years. In 2008, the Associated Press reported that the DoD OIG “rejected claims of retaliation and stood by the military in more than 90 percent of nearly 3,000 cases during the past six years.” Substantiation means the OIG, after reviewing the facts of a case, believes there is adequate evidence to prove all the necessary elements of whistleblower reprisal.
Should the DoD OIG back up whistleblower claims of reprisal more often? And if the substantiation rate is too low, is there a “correct” rate? A rate in the single digits seems low.
But proposing a “correct” rate comes at the issue the wrong way. Each decision by the OIG to stand by a whistleblower’s reprisal claim is a function of the merits of the individual case examined and the state of the law under which the facts of the case are judged. An improvement in the average number of times the OIG finds in favor of whistleblowers requires changes to whistleblower protection law, or more cases with available facts that prove all the elements of whistleblower reprisal—or both. But even without changes to the law, the substantiation rate could potentially improve if there are ways the DoD OIG could better handle and investigate whistleblower complaints. Improved fact-finding and understanding of the evidence can yield cases with greater legal merit.
Changes are underway. According to testimony by Marguerite C. Garrison, a senior DoD OIG official, before a Senate panel last week, “Over the past several years, DoD IG has aggressively reviewed its whistleblower reprisal investigations to identify areas for improvement.”
The changes come as the number of military reprisal complaints have increased over the last five years. From fiscal years 2006 through 2011, the number has grown from 357 complaints a year to 436—a 22 percent increase.
New Policies for Handling Military Reprisal Complaints
The majority of dismissed cases have been cleared off the OIG’s docket after little more than a simple paper chase. According to DoD OIG data covering fiscal year 2011, around 70 percent of complaints handled by the office formerly known as MRI were dismissed without an active investigation. They were closed after only a “preliminary inquiry.” Meaning: no dispatch of investigators to collect evidence, no seizing of hard drives, no interview of the complainant.
Officially, the DoD OIG does not count the cases dismissed after a preliminary inquiry when calculating the substantiation rate, thus its rate is significantly higher.
To be fair, some complaints may be frivolous. Whistleblower reprisal investigators are few and far between compared to the number of complaints the DoD OIG faces, and it should spend the bulk of its time on cases it can substantiate. But sometimes serious complaints are dismissed prematurely by the DoD OIG and do not get the attention they deserve.
For instance, last year, Army Reserve Lt. Col. Mike Holmes submitted a complaint alleging he was the subject of a retaliatory Army investigation after he raised concerns about a proposed information operation. The operation was ultimately modified after he raised concerns about it. The DoD OIG’s Military Reprisal Investigations unit dismissed his case in the fall of 2010. According to Holmes, he didn’t even get a phone call from anyone in MRI.
MRI declined to launch an investigation because it argued the Army lawyer to whom Holmes was directed to discuss his concerns was not, in MRI’s view, a protected channel for disclosure, thus Holmes could not get whistleblower protections. After these details appeared in a Rolling Stone article and Holmes’ lawyer asked the DoD OIG to reopen the case, the agency took a second look. The current chief of staff opened a full investigation that is still ongoing, according to Holmes and his lawyer.
Holmes said he would never advise anyone in the military to blow the whistle. He has described seeing and hearing constant advertising on military TV and radio in Afghanistan that describes whistleblower protections and urges whistleblowers to step forward, claiming that they will be protected by the OIG. He says he now feels suckered.
Another policy change should prevent one thing that happened to Holmes—that is, never being contacted by a DoD OIG investigator—from happening again. Apparently, MRI was not following the old policy of contacting whistleblowers within two weeks of a complaint’s filing. “In January of this year,” an OIG spokesman emailed, “the complaint intake process was modified to require that the director ensure each complainant be contacted, and that any complaint that alleges at least one protected communication and at least one unfavorable personnel action be accepted for further review.” This means that prior to January, there were military service members whose complaints, like Holmes’, died in the inbox.
Between anecdotes like those of Mike Holmes and Gene McCarty, and the bigger picture painted by the dismal substantiation statistics, why would a member of the U.S. Armed Forces who blows the whistle think they’d have any protection from the DoD OIG?
Top Pentagon Watchdog Restructures Its Whistleblower Investigations
New leadership in the DoD OIG might be one reason. Nilgun Tolek, the former head of the troubled Whistleblower Protection Program at the Occupational Safety and Health Administration, was promoted earlier this year to be the new chief of the Defense Department’s whistleblower reprisal investigations. Tolek, initially hired to head DoD OIG’s Civilian Reprisals Investigations (CRI), is the investigative czar now in charge of the new Whistleblower Reprisal Investigations (WRI) office, a part of DoD OIG. The old MRI and its counterpart, CRI, were merged into the new WRI, which was created by outgoing Inspector General Gordon Heddell last summer. This organizational change followed the creation of a new office for Whistleblowing & Transparency within the DoD OIG.
“The new WRI Directorate will achieve economies of scale and will increase quality of investigations as well as efficiency of operations by standardizing case processing procedures, training, and information sharing,” a DoD OIG spokesman emailed in a statement. “Ultimately, we will be better able to protect whistleblowers by conducting communications and outreach, formulating and promulgating policy, training our investigators, and analyzing statistics with the overall whistleblower protection program in mind.”
Increased staffing for whistleblower reprisal investigations is another positive change. The DoD OIG devoted more resources to these directorates after the Justice Department Office of Inspector General issued a review of MRI. Justice undertook its review after Senator Charles Grassley (R-IA) and POGO started raising concerns, and issued a report on its findings in 2009.
Since the Justice Department review, “There are now 11 more reprisal investigator positions than there were in July 2009,” according to a DoD OIG statement.
Tolek certainly has her hands full. WRI, which is embedded within the DoD OIG, is only part of her responsibility. Since the late 1990s, the military service Inspectors General—the Air Force, Army, Marine Corps, and Navy IGs—have also been responsible for investigating military complaints of reprisal. WRI oversees their investigations and signs off on their assessments of the merits of each case, as MRI did in the Air Force IG investigation of McCarty’s complaint. Furthermore, the military service IGs each have a network of field IGs ensconced in military bases around the country and the world. Most military reprisal investigations are conducted by military service IGs.
Previous Examination of Reprisal Investigations
But this system has been far from flawless. The Justice Department Inspector General report from 2009 found that military service IG investigators tended to be poorly trained and, because of manpower needs, were being rotated in and out too rapidly to gain needed experience in these kinds of complex investigations. Also, the report notes the need for greater assurances that service IG investigators are not investigating officials or matters within their direct chain of command.
The OIG says it is working to improve the military service IGs. The DoD “Inspector General recently met with the military service IGs and urged them to identify and implement ways to improve their whistleblower protection processes, to include dedicating additional resources to improve the timeliness and quality of their investigations,” said senior DoD OIG official Marguerite Garrison in Senate testimony last week.
MRI wasn’t exempt from blame—indeed most of the Justice Department report focused on that office. The report deemed MRI’s review of cases inefficient and slow. “The failure of MRI to meet consistently the statutory time deadline is largely a function of insufficient staffing to handle the large and growing number of reprisal allegations,” the report stated.
The Justice Department report did not assess MRI’s effectiveness or its judgment, but “found that the military reprisal program has not had a high profile within the DOD OIG.” The report went on to say that “One senior DOD OIG manager told us that MRI matters are rarely discussed within the OIG and substantiated cases of reprisal are not publicized.”
Since then, conditions have changed somewhat. Senior DoD OIG officials say that military whistleblower cases are now discussed at high-level meetings. Also, according to the DoD OIG’s March 2010 semi-annual report to Congress, there has been significant progress in implementing the Justice Department IG report recommendations, “including additional staffing, improved policies and procedures, communications with complainants and service IGs, and obtaining authorizations for dedicated training staff.”
Statistics May Show Improvement, But Too Soon to Tell
These changes may be adding up. There were 17 reprisal cases substantiated in the second half of fiscal year 2011 – when many of the policy changes were implemented—more than the ten cases in the first half of that year, although the greater number is not proof that the policy changes worked. Furthermore, fewer cases are getting closed after a preliminary inquiry. But only time will tell if these are just blips, or represent new trends.
More changes may be on the way. Earlier this year, the OIG began to conduct an “Independent Review of MRI outcomes” to check on progress since the issuance of the Justice Department review. An OIG spokesman would not describe the review’s findings or recommendations or provide a copy of any report associated with the review. The spokesman would only say, via email, that “the Independent Review made recommendations that are currently being considered for implementation. Recommendations from the DOJ review are also being implemented.”
The spokesman added, “it is the Inspector General’s intent for DoD IG to serve as the model whistleblower protection program in the federal government. We are actively working to achieve his goal.”
Will Legislative Reform Be On the Table?
But there are some reasons why that goal may be hard to achieve even with the improvements being implemented now. A spokesman told POGO that the DoD OIG has not conducted a trend analysis to determine why military complainants alleging retaliation usually do not have their complaints substantiated. In other words, the Pentagon’s top watchdog office—the entity most directly responsible for implementing the law that protects military whistleblowers—has not analyzed why most complaints are dismissed.
This may be one reason why the DoD OIG is not currently proposing “any changes to current whistleblower statutes,” according to its spokesman.
However, a greater understanding of why complainants almost always lose before the DoD OIG may be on its way. The Government Accountability Office, Congress’s investigative arm, began a review of the OIG’s handling of military reprisal cases earlier this year, according to several sources in the DoD and the legislative branch.
While the new WRI might improve military whistleblowers’ chances of receiving favorable outcomes, it faces the difficult task of convincing would-be whistleblowers given the low substantiation rate it has had in the past.
The DoD OIG and the military services’ inspectors generals should try to improve investigative activity to improve fact-finding to strengthen the merits of reprisal cases and should be aggressive in applying the law to the facts at hand. Yet to ensure cases with great merit that are well investigated lead to just results, it may be up to Congress to make changes to the law.
In Part III of this series, POGO will report on whistleblower lawyers’ experience with the Military Whistleblower Protection Act.