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Holding the Government Accountable

The Whistleblower Who Fell Through The Cracks

On a hot, parched day in June 2004, a convoy of Humvees was making its way across Iraq’s Sunni Triangle when a roadside bomb exploded, mangling the head vehicle and knocking lead gunman Mike Helms unconscious. The force of the impact blew 2,000 rounds of ammunition from the Humvee. The other soldiers, seeing Helms’ limp frame, thought he was dead.

Helms, an intelligence specialist deployed to the Army’s 902nd Military Intelligence (MI) Group, was alive—but he was wrongfully denied military medical care. When he tried to speak out about the U.S. military’s poor treatment of deployed civilians in Iraq, he plunged into a whistleblower’s worst nightmare: as he was losing his health, reprisal against him caused him to lose his livelihood.

A previously undisclosed Department of Defense (DoD) InspectorGeneral (IG) report obtained by POGO and dated October 2010, substantiates Helms’ claim that the military retaliated against him because of his whistleblowing. As the Whistleblower Protection Enhancement Act of 2011 makes its way through Congress, there is no better time to shed light on Helms’ story.

“I just told the truth about what happened to me,” Helms told POGO in an interview. “But I didn’t have any protection. If it was up to some people, I would never work in the federal government again.”

Helms was hired as a federal civilian employee, but was eventually authorized to work as a lead gunman, partly because of his former soldier experience. According to Helms, there were not enough personnel for the convoys, so he was moved to the position to ensure there was enough trained military crew on the task force. The U.S. military treated Helms as a soldier: he ate military rations, worked alongside troops and came under enemy fire.

But all that changed when Helms was actually injured by enemy fire. According to DoD policy, civilians who are injured while deployed are supposed to receive the same treatment as military members. However, according to an unclassified DoD paper from 2005 on Helms' case, this policy is often overlooked, because it is uncommon for DoD civilians sustain war-related injuries that require extensive recovery periods.

Treatment Denied

Helms, who had serious brain trauma and shrapnel embedded in his arm, fell through the bureaucratic cracks. After he spent a week at the 31st Combat Support Hospital in Tikrit and his injuries failed to improve, he was medically evacuated to Landstuhl, Germany. Then, instead of being medically evacuated out of Germany as per custom for injured soldiers, he had to buy a commercial ticket home.

When he returned to the United States, Helms was evacuated to Walter Reed Army Medical Center in Washington, DC., where, according to the 2005 DoD paper, he was “denied admittance into the hospital” and experienced a “denial of lodging at the guest house, denial of emergency financial support, denial and delayed medical treatment, and disrespect by hospital staff.”

For a while, he slept on the floor of one of the soldiers who had been alongside him in the Humvee wreck. In the states, he was forced to rely on the Federal Worker’s Compensation Program, which Helms said was inappropriate for his injuries and “nothing but a nightmare,” as doctors had little experience treating combat wounds. To this day, he continues to struggle with post-traumatic stress disorder and traumatic brain injury caused by the improvised explosive device.

Helms’ Army Commander, Colonel Michael D. Bisacre, and Major General John F. Kimmons have both said that the policy for injured civilians was not executed correctly in Helms’ case. A 2004 Army memo signed by Kimmons states that Helms’ case highlighted the disparity in treatment between war-wounded DoD civilians and service members, and led to “recommendations to help preclude similar inequities in the future.”

The memo also acknowledged that the problems Helms encountered “may affect government agencies beyond the authority of the Army and Department of Defense (DoD).”

Helms continued to be denied medical treatment at military facilities through 2010, according to the DoD IG report. Frustrated by his experiences, Helms made a series of disclosures to both the press and congressional offices from 2004 to 2008, while continuing civilian employment with the Army in Fort Knox, Kentucky.

Insult to Injury

According to the DoD IG report, after Helms’ made disclosures to media outlets like The Washington Post and had a closed-door meeting with a House Armed Services subcommittee, some of Helms’ bosses initiated an investigation into a server called Athena, which Helms had created. They then accused Helms, among other things, of placing malicious software and sexually explicit material on the Athena server, which he denied. According to the IG report, it “could have been loaded by any one of those individuals who had access to the computer system.”

As Helms tells it: “They interviewed no one but me, then busted me on having an illegal copy of Windows. It should have been a slap on the wrist.”

The officials revoked Helms’ security clearance—a career-ending move for someone in the intelligence community. But they didn’t send the results of their investigation to the Central Clearance Facility (CCF), the Army office that oversees security clearance issuances, for 11 months—a violation of Army regulations, according to the DoD IG. Ultimately, the IG “substantiated the allegation that the recommendation to revoke Mr. Helms’ clearance was in reprisal for making protected disclosures.”

However, because Helms’ security clearance was revoked, his case wasn’t covered by the Whistleblower Protection Act—due to a 1988 Supreme Court decision, Department of the Navy v. Egan. The Merit System Protection Board (MSPB) referenced this decision when reviewing Helms’ claims, noting that his allegations “would involve an inquiry into the validity of the agency’s reasons for deciding to revoke the appellant’s access to classified information,” but, “the Board may not engage in such an inquiry under Department of the Navy v. Egan.”

So, in a kind of Catch-22, the MSPB was unable to help Helms, because it lacked the authority to investigate security clearance claims.

A Legislative Fix?

It shouldn’t come as a surprise that Helms supports the Whistleblower Protection Enhancement Act (WPEA, S. 743 and H.R. 3289). The Act, which has been advancing through the House and Senate, modernizes and expands the Whistleblower Protection Act of 1989 by protecting lawful disclosures made by federal employees. Specifically, the WPEA would provide intelligence community workers safe, legal channels for disclosures of wrongdoing, and would provide whistleblowers limited access to federal district courts.

It would have specifically helped Helms as well.

“If the WPEA is enacted, it will address the flawed Supreme Court ruling in Navy v. Egan by prohibiting the retaliation through security clearance revocation,” said POGO Director of Public Policy Angela Canterbury.

Section 202 of both bills would require an agency review of claims of retaliation, with reasonable time limits. If a federal employee shows that a protected disclosure was a contributing factor in the security clearance revocation, the agency must take corrective action, which potentially includes restoring the employee’s security clearance, reimbursing the whistleblowers expenses, and perhaps providing compensatory damages.

Moreover, if the agency fails to provide relief to a whistleblower, the legislation would create an administrative appellate review process of security clearance revocation.

“The Whistleblower Protection Enhancement Act could go a long way to halt a far-too-common form of retaliation,” said Canterbury.

"Remedial Action"

Although the MSPB could not address many of Helms’ reprisal claims because of the Egan decision, the DoD IG report recommended that the Army take “appropriate remedial action,” giving Helms the leverage to seek a settlement with the Army. But talks with the Army dragged on, Helms’ lawyer fees added up, and when he ran out of funds to continue the litigation—he was forced to settle earlier than he would have liked. In the settlement with Helms signed this August, the Army agreed to provide back pay and reinstate him in his job, but he is on administrative leave and not allowed to enter his office or do any work. According to the settlement, the Army “in no way admits to any wrongdoing, liability or discrimination” against Helms.

Today, Helms still struggles with lifelong injuries and bureaucratic obstacles to his medical care. Technically on administrative leave, he’s sitting at home and collecting a paycheck while waiting for his security clearance situation to be resolved by the Central Clearance Facility. Whether that will happen soon remains to be seen—the CCF is controlled by the same agency that retaliated against Helms. Helms is still waiting, four months after his settlement, to collect back pay for about a year and a half of work.

Helms also hopes for an official letter from the Secretary of the Defense or Army saying that he can get the medical treatment he requires from the military. But he’s not optimistic, as he doesn’t believe anyone wants to take responsibility.

When asked if he would go through the whistleblowing process again, Helms doesn’t answer quickly. Given the retaliations he suffered, he said, it’s not an easy question. “I’m not the type of person that does what everyone else does, and I would probably do it again. If it saves someone’s life—I think it’s worth it.”