Testimony on Strengthening Watchdogs and Whistleblower Protections

Chairwoman Speier, Ranking Member Banks, and members of the subcommittee, thank you for inviting me to testify today. My name is Mandy Smithberger, and I’m the director of the Center for Defense Information at the Project On Government Oversight (POGO). POGO is a nonpartisan independent watchdog that investigates and exposes waste, corruption, abuse of power, and when the government fails to serve the public or silences those who report wrongdoing. We champion reforms to achieve a more effective, ethical, and accountable federal government that safeguards constitutional principles. Forty years ago, POGO was founded by Pentagon insiders who were concerned about the department’s procurement of ineffective and overpriced weapons. Throughout our history we have promoted wise spending and have sought improvements to better protect military, civilian, intelligence, and contractor whistleblowers.

I want to thank the subcommittee for taking the time to look at whether our inspector general system is serving the needs of Congress, the Department of Defense, service members, and the public. Our federal watchdogs perform an essential role in rooting out waste, fraud, and abuse in the federal government. Their ability to perform this job effectively relies on insiders and whistleblowers who alert them to what is wrong. Inspectors general have a range of responsibilities that are important for improving the effectiveness of agency operations, but one of their most important responsibilities is their role investigating whistleblower and sexual assault complaints. However, POGO and government oversight entities have repeatedly raised concerns that the system for protecting military whistleblowers against retaliation is insufficient.¹

The inspector general system for service members can seem unusually complex. The Department of Defense inspector general, service inspectors general, and component inspectors general perform complementary, but slightly different, roles in conducting oversight of the department and military services.

The Department of Defense inspector general is a civilian, statutory inspector general and is supposed to be independent from the Department of Defense. Statutory inspectors general have subpoena powers and audit functions, and are uniquely dual-hatted, reporting both to Congress and to their agency head.² In recent years Congress has strengthened statutory inspectors general, most notably by providing each inspector general with their own general counsel and by requiring the president to provide congressional notification and justification for removing and transferring inspectors general.³

Service inspectors general, on the other hand, have less independence. They are active duty members of the military, report to their service secretary, and don’t have subpoena powers or audit functions granted to statutory inspectors general.⁴ Their role is closer to one of counselor, and are often considered the “eyes and ears” of their service secretary and service chief.⁵ In some instances, the officials occupying these important leadership roles have appeared to cover up information that might embarrass their service.⁶ Equally troubling, this subcommittee heard the Army inspector general say in 2018 that most whistleblowers are misusing the process and that the whistleblower protection system is “out of control.”⁷ These comments create a chilling effect that discourages others from coming forward, making it that much harder for the military and the department to uncover and address problems.

For component inspectors general, both the investigative and management staff are active duty service members temporarily assigned to the IG office. Current regulations stipulate that these inspectors general work “directly for the commander,” rather than for the services, service members, or national security.⁸ A Department of Justice inspector general review found those offices struggle to maintain adequate staff and experience because the offices “compete for resources for military components engaged in military actions around the world. Consequently, fully staffing field IG offices is a lower priority than staffing other service branch components.”⁹ As an additional example of how component inspectors general have less independence, Army regulations state that its inspectors general are also expected to adapt to and accommodate a commander’s “goals, expectations, standards, vision, operating methods, and personality.”¹⁰

After Army Specialist Vanessa Guillén was brutally killed in 2020, pressure from Congress prompted the Army to create an independent review panel to assess the command climate and culture at Fort Hood, where Guillén had been stationed.¹¹ The findings of the independent review panel should be an important wakeup call for the services to assess whether they have the right tools in place to prevent and address criminal activity, sexual assault, and sexual harassment. As this subcommittee knows, the panel found that Fort Hood’s Sexual Harassment/Assault Response and Prevention (SHARP) program was so ineffective that it created a “permissive environment for sexual assault and sexual harassment.”¹² It also found there was “universal fear of retaliation, exposure and ostracism” among service members for reporting sexual assault.¹³ These problems extend beyond Fort Hood: A recent RAND study of service members found that 31% of male survivors and 28% of female survivors reported they “experienced social or professional retaliation as a result of the assault.” ¹⁴

Ultimately, the inspectors general failed to recognize the gravity of the problems at Fort Hood. As the independent review team found:

the IG should set higher standards than those set in the recent inspection where only 65% of the 60 female respondents to the IG survey stated that they believed they could file a sexual assault or harassment complaints without reprisal/retaliation. This strikes at the very heart of the SHARP Program and hardly represents “an overall positive command climate” with respect to female Soldiers.¹⁵

The nuances of the roles of the different types of inspectors general are far from clear to those who find themselves needing to turn to the inspector general system. The default for the Department of Defense inspector general is to hand retaliation allegations over to local or command inspectors general, who have the least amount of independence and experience in handling what are often highly complex investigations.¹⁶ We have worked with whistleblowers who had turned to the Department of Defense inspector general hotline only to be unpleasantly surprised that their complaint was referred to a service or component inspector general. Those referrals can feel like being thrown into the lion’s den, as they potentially expose the whistleblowers to additional retaliation. Some who came forward to the Department of Defense inspector general might have opted to stay quiet had they known their concerns were going to an office with less independence.

Despite both the Department of Defense inspector general and service inspectors general adopting a number of changes to enhance investigations and mechanisms for relief for whistleblowers, the outcomes still look like a system unlikely to protect truth-tellers. Data shows that whistleblowers who come forward and report retaliation are unlikely to have the inspector general system substantiate that they have been retaliated against. Department of Defense inspector general semiannual reports to Congress continue to show that the vast majority of reprisal claims are not investigated, and only a handful of those investigated are substantiated. (See Appendix A.)

Even when reprisal claims are substantiated, those who retaliate are rarely punished. In 2019 Roll Call found only one of the 350 officials that IGs determined had retaliated against whistleblowers was fired.¹⁷ Previous Department of Defense inspector general data provided to this subcommittee showed that, for senior official misconduct more broadly, the most common discipline was counseling or reprimand.¹⁸ Remedies for whistleblowers were also elusive: 85% of those whistleblowers “had still not gotten any remedy,” Roll Call reported.¹⁹ Most whistleblowers give up or end up fighting for years to get their own records corrected.

In addition, while this is not determined by this committee, as long as there is not a permanent, Senate-confirmed Department of Defense inspector general in place, the foundation of the department’s inspector general system is fundamentally undermined. Not having a permanent leader, especially for a long period of time, compromises the office’s credibility, independence, management, and strategic direction.²⁰ The Department of Defense inspector general has lacked a permanent leader for over five years.²¹

The success of inspectors general also depends on their ability to do their job independently. While it is important to hold accountable watchdogs who are ineffective or who abuse their authority, removing inspectors general without providing cause to Congress compromises the system. We saw this recently when then-President Donald Trump removed the principal deputy who had been leading the Department of Defense inspector general office without providing a justification to Congress, which created a chilling effect throughout the statutory inspector general community.²² While the current acting head, Sean O’Donnell, has been Senate confirmed, that confirmation was for his other simultaneous role as the inspector general for the Environmental Protection Agency.²³ The job of overseeing the Department of Defense is too large and important to be a collateral duty for any individual, no matter how qualified they may be. We hope the committee will urge the president to prioritize nominating a qualified official to lead this office.

It’s important to recognize that there is an inherent tension between the act of blowing the whistle and the principles of chain of command. Yet we think there are a number of areas of oversight and reforms that can strengthen both the inspector general and whistleblower protection systems without undermining the core tenets of the chain of command.

First, we urge Congress to revise the burdens of proof for military whistleblowers. The Military Whistleblower Protection Act is significantly weaker than laws that protect most federal and private sector employees.²⁴ For civilians, the burden of proof to show a personnel action was warranted, and therefore not retaliatory, rests on the agency officials. For members of the military, the reverse is true and service members must prove that they were illegally retaliated against by showing there was no other reasonable explanation for the adverse personnel action they experienced.²⁵ Whistleblowers in the military are essentially required to prove a negative for them to stand a chance at prevailing on a whistleblower reprisal complaint. As a result, the odds are stacked against service member whistleblowers when they try to enforce their rights to report waste, fraud, abuse, and other misconduct. This leads to ongoing silence about misconduct, and allows systemic problems to persist.²⁶

Second, we urge the subcommittee to review whether service and component inspectors general have the legal support they need. POGO’s investigation of statutory inspectors general found that not having their own counsel and having to rely on agency counsel created a clear conflict of interest, including in disagreements over what information can be publicly released.²⁷ An agency counsel’s duty to protect their agency can undermine a watchdog’s responsibility to both expose wrongdoing and hold the agency accountable. To be effective watchdogs, inspectors general need counsel who can provide them the advice they need to be effective in providing oversight and telling department and service leaders the information they need to hear.

Third, one of the most successful recent reforms at the Department of Defense Office of Inspector General was the establishment of an alternative dispute resolution program. By offering this option for whistleblowers, cases can be resolved more quickly, and often to the greater satisfaction of all parties.²⁸ This option, however, is not fully available to service members through the inspector general system.²⁹

Fourth, it’s important to remember that the impact of inspectors general is closely tied to the ability of key officials, Congress, and the public to know about their findings and about their advice on how to remedy the problems they uncover. Their recommendations have no power beyond the ability to persuade others to take action. We would like to see all inspectors general do more outreach to the public and to Congress about their work, including publishing their reports in a timely manner, proactively releasing information to the public that would be released under the Freedom of Information Act, and announcing upcoming projects that aren’t law enforcement sensitive. Doing so acts to deter misconduct and increases the likelihood that their findings will result in meaningful change.

Fifth, one of the most important ways to protect sources is, to the maximum extent possible, to preserve confidentiality. Recognizing this, the Inspector General Act restricts both the Department of Defense inspector general and the service inspectors general from disclosing whistleblowers’ identities without their consent, unless such a disclosure is unavoidable during the course of the investigation.³⁰ But policies for inspectors general have not always been comprehensive and consistent. A 2019 Government Accountability Office review found the Air Force, Naval, and Marine Corps inspectors general lacked sufficient guidance on when whistleblowers’ identities could be disclosed without their consent.³¹ Two years after bringing this deficiency to their attention, the Government Accountability Office still has open recommendations for those three inspector general offices to establish procedures to implement Department of Defense policy on protecting whistleblower confidentiality.³²

We all count on inspectors general to warn commanders, senior leaders, Congress, and the public about problems. Their ability to do so depends on effectively working with whistleblowers. When individuals come forward, usually at great personal and professional risk, they must be effectively protected. The perceived and real failures of this system must be addressed.

Thank you again for providing me the opportunity to testify today. I look forward to your questions.