A nonprofit watchdog group, the Project on Government Oversight (POGO), obtained a report through a Freedom of Information Act (FOIA) request that concludes officials in the Defense Department’s Office of Inspector General are guilty of “persistent sloppiness and a systematic disregard for Pentagon rules meant to protect those who report fraud, abuses, and the waste of taxpayer funds.”
The report was put together and published in May 2011 by a three-person team of investigators that was tasked with reviewing the Directorate for Military Reprisal Investigations (MRI).
Investigators, according to the Washington Post, “disputed the directorate’s dismissal of more than half of the 152 whistleblowing cases it reviewed and called for it to revamp its procedures and start enforcing the protective rules.” Investigators found that “letters of reprimand, counseling or instruction” had in many instances not been considered unfavorable personnel actions. Individuals “threatened with negative fitness reports, termination or court martial proceedings,” had in multiple cases not been viewed as retaliation that warranted a full investigation.
The report details how cases were declined because individuals “did not provide hardcopy documentation.” Investigators should have taken steps to obtain documentation, as it could be an “onerous” burden for a person in a “deployed environment” to produce documents substantiating his or her case. A statute governing investigations clearly states that if a person is “unable to establish with any certainty that the complainant made or prepared a protected communication, give the whistleblower the benefit of the doubt and proceed with the investigation.”
For any investigation, military reprisal investigators are to get answers to the following:
1. Did the military member make or prepare a communication protected by statute?
2. Was an unfavorable personnel action taken or threatened, or was a favorable action withheld or threatened to be withheld following the protected communication?
3. Did the official(s) responsible for taking, withholding or threatening the personnel action know about the protected communication?
4. Does the evidence establish that the personnel action would have been taken, withheld, or threatened if the protected communication had not been made?
Yet, clearly, the report POGO obtained shows this was not happening. Responsible management officials (RMO) were not interviewed.
The investigators are to ask each official involved:
1. When and how did you first become aware that the complainant made or prepared a protected communication?; and
2. When and how did you first suspect or come to believe that the complainant made or prepared a protected communication?
However, investigators did not obtain statements or facts on the complaints of retaliation being brought. The team found investigators were assuming the reasons “why management took the alleged” act of retaliation against a whistleblower “because interviews or statements were not obtained.”
The standard is clear. The Defense Department:
…prohibits reprisal against service members for making or preparing to make a protected communication. Moreover, it is the policy of DoD that members of the Armed Forces shall be free from reprisal for making or preparing to make protected communications, and that no person may take or threaten to take an unfavorable personnel action, or withhold or threaten to withhold a favorable personnel action, in reprisal against any member of the Armed Forces for making or preparing to make a protected communication.
Protected communications can involve details on a “violation of the law or regulation, including a law or regulation prohibiting sexual harassment or unlawful discrimination or gross mismanagement, gross waste of funds, an abuse of authority or a substantial and specific danger to public health or safety.” Proof of retaliation includes the protected communication made, the alleged unfavorable personnel action against the person (or the withholding of a favorable action) and facts from a responsible official that knew about the communication before an action was taken or withheld. But, this process has been wholly disregarded to the detriment of those working under the Defense Department.
As Danielle Brian, executive director of POGO, told the Post, “This devastating report proves one of our worst fears — that military whistleblowers have systematically been getting a raw deal.” Tom Devine, legal director for the Government Accountability Project, a group that has represented Pentagon employees challenging retaliation, said “This report helps to confirm what everyone knew in practice — that the IG has not respected the law’s mandate.” And, Devine added the office of the IG “created in part as a refuge of last resort for those whose complaints of wrongdoing are ignored by others — has often been ‘a Trojan horse,’ whose agents are ‘hatchetmen for agency managers’ looking for the smallest infraction to punish their whistleblowers.”
This report affirms the culture within the military against whistleblowing has not changed much at all. One becomes a nuisance if he or she raises his or her voice and condemns abuse, fraud, misconduct or waste. True, back in the 1990s the military was regularly ordering mental health evaluations for individuals that blew the whistle and that is why the reprisal investigations unit started. That does not appear to happen all that much anymore (instead of labeling whistleblowers crazy the military now reserves this retaliatory tactic for women who report rape or sexual assault).
The Pentagon does continue to put employees in a position where they could lose their job or face a trial if they blow the whistle. For example, Franz Gayl, a Marine Corps whistleblower who pushed the Pentagon to send more heavily armored vehicles known as MRAPs to Iraq. He was stripped of his security clearance (a common punishment for whistleblowers) and also threatened with firing. Though Gayl had revealed mismanagement that held up an MRAP shipment for 18 months, resulting in the deaths of at least 700 troops, he was the subject of a criminal investigation because he “allegedly” cited “a classified document in an internal report.”
Of course, compounding the threat of retaliation for blowing the whistle is the likelihood that what one reveals will make no difference at all. Whistleblowing pilots from the Air Force recently were on “60 Minutes” to warn F-22s are “unsafe” and they’ve “asked not to fly” them. The service hit back saying they were confident in the aircraft. Gen. Mike Hostage, head of Air Combat Command, said he would fly the aircraft to show it poses a low risk.
And, once someone does blow the whistle, they have to deal with a population of Americans that is likely to condemn them for blowing the whistle because we are a nation at war. The Los Angeles Times recently published photos of US troops posing with the mangled corpses of suicide bombers. Not only did the Pentagon condemn the newspaper for publishing two photos but many in the public reacted angrily:
…Jeffrey Cole of Westerville, Ohio, wondered: “What positive impact could you possibly hope for?”
Observed C. Clingerman of Woodbridge, Va.: “Yes, we all understand that you have the right to publish whatever you want because you have freedom of speech, freedom of the press … having said that, sometimes it’s not a matter of whether or not you can, it’s whether or not you should. In this case, what’s the purpose other than to make our military look bad?…
“Bytebear,” also online, said: “The soldier who leaked these photos is correct that the chain of command has broken down. Not just in the fact that the superior officers didn’t put a stop to this behavior, but also because the whistle blower was not using the correct chain of command. He should have reported the issue to his superiors and they should have acted. This should never have been anything more than an internal incident.”…
The examples are a sampling of the opinions people have about whistleblowing: it won’t change anything so why challenge power, it will make the military look bad, during war freedom of the press has clear limits and soldiers should not go public with these things. They should be handled by the military.
This is all background music for the court martial proceedings of Pfc. Bradley Manning, the soldier accused of releasing classified information to WikiLeaks. He revealed details on war crimes in Iraq and Afghanistan, but the government is in the process of making an example of him. They have charged him with “aiding the enemy” (being a traitor) for “indirectly” providing “intelligence” to al Qaeda through WikiLeaks. Clearly, this is to send a message that any soldier thinking about releasing any sets of documents at their fingertips, even if they contain details on crimes, fraud, misconduct or waste, should instead remain complicit in the concealment and coverup of such activity.
Is it surprising Americans react this way when the wars are not covered regularly in the news unless a raid where someone like Osama bin Laden is summarily executed by an ace team of servicemen occurs? Is it startling that Americans are revolted when the press periodically interrupt the regular void of coverage of the gory details of war to actually bring Americans a look at the carnage and grotesqueness of war? The people of America are insulated. That feeds into the revulsion against whistleblowers.
Punishment by the government and public rancor against people who blow the whistle is also not likely to be challenged by the press. Though a whistleblower may have provided them scoops that will give them notoriety and attention (perhaps, even lead to awards and prestige), the press is typically silent in the face of presidential administrations like the Obama administration that go after their “most indispensable asset,” which Edward Wasserman notes is “their sources.”
There is likely much corruption in the Defense Department, but people within the military are silent on a daily basis because they think what they are seeing is all part of the job or they don’t want to carry the stigma that comes with being a whistleblower. Additionally, the system designed to protect whistleblowers is broken. And, disregard for whistleblowers within the institution of the Pentagon is reinforced by a population in America that has been conditioned to side with the powerful instead of with troops that stick their neck out for the truth.
Kevin Gosztola is the co-author of the new book, “Truth and Consequences: The US vs. Bradley Manning.”