[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
OVERSIGHT OF THE DEPARTMENT OF DEFENSE OFFICE OF INSPECTOR GENERAL'S
MILITARY WHISTLEBLOWER REPRISAL INVESTIGATIONS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON NATIONAL SECURITY
OF THE
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 7, 2016
__________
Serial No. 114-76
__________
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
JASON CHAFFETZ, Utah, Chairman
JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland,
MICHAEL R. TURNER, Ohio Ranking Minority Member
JOHN J. DUNCAN, Jr., Tennessee CAROLYN B. MALONEY, New York
JIM JORDAN, Ohio ELEANOR HOLMES NORTON, District of
TIM WALBERG, Michigan Columbia
JUSTIN AMASH, Michigan WM. LACY CLAY, Missouri
PAUL A. GOSAR, Arizona STEPHEN F. LYNCH, Massachusetts
SCOTT DesJARLAIS, Tennessee JIM COOPER, Tennessee
TREY GOWDY, South Carolina GERALD E. CONNOLLY, Virginia
BLAKE FARENTHOLD, Texas MATT CARTWRIGHT, Pennsylvania
CYNTHIA M. LUMMIS, Wyoming TAMMY DUCKWORTH, Illinois
THOMAS MASSIE, Kentucky ROBIN L. KELLY, Illinois
MARK MEADOWS, North Carolina BRENDA L. LAWRENCE, Michigan
RON DeSANTIS, Florida TED LIEU, California
MICK MULVANEY, South Carolina BONNIE WATSON COLEMAN, New Jersey
KEN BUCK, Colorado STACEY E. PLASKETT, Virgin Islands
MARK WALKER, North Carolina MARK DeSAULNIER, California
ROD BLUM, Iowa BRENDAN F. BOYLE, Pennsylvania
JODY B. HICE, Georgia PETER WELCH, Vermont
STEVE RUSSELL, Oklahoma MICHELLE LUJAN GRISHAM, New Mexico
EARL L. ``BUDDY'' CARTER, Georgia
GLENN GROTHMAN, Wisconsin
WILL HURD, Texas
GARY J. PALMER, Alabama
Jennifer Hemingway, Staff Director
David Rapallo, Minority Staff Director
Dimple Shah, Subcommittee Staff Director
Mike Howell, Counsel
William Marx, Clerk
----------
Subcommittee on National Security
RON DESANTIS, Florida, Chairman
JOHN L. MICA, Florida STEPHEN F. LYNCH, Massachusetts,
JOHN J. DUNCAN, JR., Tennessee Ranking Member
JODY B. HICE, Georgia ROBIN KELLY, Illinois
STEVE RUSSELL, Oklahoma, Vice Chair BRENDA L. LAWRENCE, Michigan
WILL HURD, Texas TED LIEU, California
C O N T E N T S
----------
Page
Hearing held on September 7, 2016................................ 1
WITNESSES
The Hon. Ryan Zinke, A Representative in Congress from the State
of Montana
Oral Statement............................................... 4
Written Statement............................................ 7
Mr. Glenn Fine, Principal Deputy Inspector General, U.S.
Department of Defense
Oral Statement............................................... 13
Written Statement............................................ 15
Ms. Lori Atkinson, Assistant Director, Defense Capabilities and
Management, U.S. Government Accountability Office
Oral Statement............................................... 26
Written Statement............................................ 28
Ms. Mandy Smithberger, Director, Straus Military Reform Project,
Project on Government Oversight
Oral Statement............................................... 49
Written Statement............................................ 51
ADDITIONAL INFORMATION
1. An Article Written by William H. McRaven on April 24, 2016,
a Special to the Tampa Tribune, Titled, ``William McRaven: A
Warrior's Career Sacrificed for Politics''- Submitted by
National Security Subcommittee Chairman Ron DeSantis (FL). It
can be found online here: http://www.tbo.com/list/news-opinion-
commentary/william-mcraven-a-warriors-career-sacrificed-for-
politics-20160424/
2. A New York Times Op-Ed by Mark Hertsgaard Published on May
26, 2016, titled, ``Whistle-Blower, Beware''- Submitted by
Representative John J. Duncan, Jr. (TN). It can be found online
here: http://www.nytimes.com/2016/05/26/opinion/whistle-blower-
beware.html
OVERSIGHT OF THE DEPARTMENT OF DEFENSE OFFICE OF INSPECTOR GENERAL'S
MILITARY WHISTLEBLOWER REPRISAL INVESTIGATIONS
----------
Wednesday, September 7, 2016
House of Representatives,
Subcommittee on National Security,
Committee on Oversight and Government Reform,
Washington, D.C.
The subcommittee met, pursuant to call, at 2:04 p.m., in
Room 2154, Rayburn House Office Building, Hon. Ron DeSantis
[chairman of the subcommittee] presiding.
Present: Representatives DeSantis, Mica, Duncan, Hice,
Russell, Hurd, Lynch, and Lawrence.
Mr. DeSantis. The Subcommittee on National Security will
come to order. Without objection, the chair is authorized to
declare a recess at any time.
Inspectors general play an important role in ensuring
accountability in executive branch agencies, and whistleblowers
are a key tool in combatting waste, fraud, and abuse within
government. But IGs have a responsibility to conduct
investigations in a fair, timely, and accountable manner, and
whistleblower complaints cannot be used to shield the civilian
or military member from accountability for substandard
performance.
The recent case of Rear Admiral Brian Losey, who was forced
to end his stellar career as a Navy SEAL after a lengthy series
of IG investigations and political maneuvering, raises
significant questions regarding the IG process, the erosion of
military command authority, and the treatment of an officer who
gave so much for our country.
Losey's 30-year career sent him all around the globe to
defend our Nation, had habitual deployments as a junior
officer, going to Afghanistan shortly after the 9/11 attacks,
serving multiple deployments in Iraq, commanding the famed SEAL
Team 6. His final duty assignment was to serve as the commander
of WARCOM, which oversees all Navy SEALs.
Retired admiral and Navy SEAL William McRaven has written
that Losey is, ``Without a doubt, one of the finest officers of
whom I have ever served. Over the past 15 years, no officer I
know in the SEAL teams has given more to this country than
Brian Losey.''
There are very few Americans who have given as much to our
country as Brian Losey. Yet Losey's career was cut short
following a flurry of lengthy investigations conducted by the
DOD IG and intervention by a handful of U.S. Senators.
In 2011, Losey assumed command at the Special Operations
Command Africa, SOCAFRICA, which was a relatively new command
that was still trying to become capable of dealing with the
growing threats emanating from the African continent. The
command was based in Stuttgart, Germany, and the command
featured a small number of staffers who had grown accustomed to
the relaxed European lifestyle.
Upon assuming command, Losey faced a situation in which the
command was not performing at the level required. He saw a need
to improve the command and change the prevailing culture. It
would not necessarily be easy to do so, but it was necessary to
do so.
Meanwhile, an anonymous whistleblower filed a complaint
against Losey alleging that he illicitly flew his daughter to
Germany at taxpayer expense. The complaint was bogus in every
respect. Not only did Losey not fly his daughter to Germany on
the taxpayer's dime, he was actually entitled to do so, if he
so chose, under the existing travel regulations. Nevertheless,
the existence of this complaint, combined with Losey's
befuddlement regarding the complaint, cast a shadow over
Losey's attempts to take action to reform SOCAFRICA as he was
accused of retaliating against whistleblowers who filed
additional complaints as Losey undertook his actions.
The Navy conducted an IG investigation and found that
Losey's actions were justified on the merits and did not
constitute unlawful reprisals. He subsequently earned a
promotion of Rear Admiral Upper Half, 2-Star billet, and was
assigned to command WARCOM. A review of the command climate
commissioned by the commander of AFRICOM found that Losey was,
``the right man for the job at this time.'' and cited,
``pockets of resistance within the command to the new course
charted by Losey.''
The DOD IG conducted its own investigation, included that
some of Losey's actions were reprisals for the whistleblower
complaint. Although the IG investigation was required by law to
be concluded in 180 days, the Losey investigation, multiple
investigations dragged on for years, delaying his ascension to
2-star admiral for 2 years.
The Navy reviewed the findings of the DOD IG and determined
that the personnel actions initiated by Losey were not
reprisals but a legitimate exercise of command authority. A
group of U.S. Senators, though, rejected the Navy's findings
and sought to engineer Losey's ouster. Using legislative
leverage, they effectively forced the hand of the Secretary of
Navy who revoked Losey's promotion, thereby shortcircuiting a
storied career.
This is a tragic outcome that has failed to do justice to
one of America's top warriors, and the whole ordeal raises
questions about how the whistleblower process functions. For
one thing, the main whistleblower complaints that Losey
violated travel regulations by flying his daughter to Europe
and that Losey created a, ``toxic command climate'' were both
factually false. He paid for his daughter's trip and actually
was entitled to have the trip funded by the Navy. And the
AFRICOM report compiled by Lieutenant General Ray Palumbo found
that SOC AFRICOM was,``trending along the path of improvement
under Real Admiral Losey's leadership, vision, and direction.''
Yet the procedural and investigator aftermath of these baseless
complaints culminated in Losey losing his career.
Second, the filing of false reports can undermine command
authority. At a minimum, there is a dispute between the Navy
and the DOD IG about Losey's--whether Losey's actions were
legitimate actions undertaken by a military commander. A false
IG complaint under these circumstances can be used as a weapon
to make core command decisions a more risky proposition.
Third, the years' long investigative process left Admiral
Losey in a perpetual state of uncertainty and was contrary to
the 180-day mandate. Doesn't an officer who has given so much
for our country deserve to have matters such as these resolved
within the timeframe enumerated by the law? How is the IG held
accountable for consistently failing to abide by the 180-day
requirement?
Fourth, much was made over the course of the investigations
regarding the leadership style of Brian Losey. He certainly
ruffled feathers at SOCAFRICA, but do we want commanders who
demand too much or too little? The mark of a good commander is
whether the mission gets successfully executed, not whether
everyone's feelings are taken into account.
Today, we will hear from several witnesses who have
experience in IG investigations, including the principal deputy
IG for the Department of Defense, Mr. Fine. We will also hear
from my colleague, Ryan Zinke from Montana. Ryan is a retired
Navy SEAL captain who commanded SEAL Team 6 and who has a keen
understanding of the challenges facing our special operation
force commanders.
I thank you all for attending. And with that, I will now
recognize Ranking Member Lynch for his opening statement.
Mr. Lynch. Thank you, Mr. Chairman. I would like to thank
you for holding this hearing to examine the management of the
military whistleblower reprisal investigations by the
Department of Defense Inspector General, and I would also like
to welcome our colleague, Mr. Zinke of Montana, and other
distinguished witnesses for helping this committee with its
work.
I would caution that the full case of Mr. Losey was a--an
extensive review with about 100 witnesses and I think 300,000--
30,000 pages. So a lot of trees have died, and we have very
little of the information before this committee. So I will just
acknowledge and appreciate Rear Admiral Losey's performance in
Bosnia, in Afghanistan, and Iraq on behalf of this country, his
courageous service. I cannot pass judgment on the 100 witnesses
and 30,000 pages of documentations that were put together in
this investigation.
And I do have enormous respect for those Senators, that
group of Senators, Democrats and Republicans, Senator Ron Wyden
of Oregon, Senator John McCain of Arizona, Senator Jack Reed
from Rhode Island, who reviewed this and agreed to substantiate
not the--not the allegations against, you know, improper use of
resources regarding, you know, flights for family. That wasn't
the case here.
The case at heart was whether whistleblowers who came
forward with information were retaliated as a result of them
coming forward. That is the core of this. And we don't have
enough information before this committee to pass judgment on
that, so I--I appreciate that with--look, I want to do
something I don't normally do, which is I want to thank the
Members of the Senate for their good work. I don't do--that is
probably the first time I have ever done that, but--probably
won't happen again, but this is a tough case. And I will just,
you know, let the facts take us where they will in that regard.
We do have really an abominable case, though, with the
Department of Defense Office of the Inspector General. We are
in total agreement on that. We have got cases where there
appears to be deliberate mishandling of documentation. You are
right, Mr. Chairman, they have failed miserably in meeting the
180-day statutory requirement for informing servicemembers of
their rights and of the status of their case. Instead of 180
days, the average day over there for review is 526 days, and in
that case, you know, justice delayed is justice denied for a
lot of these soldiers who come forward and report misconduct
and engage in whistleblowing.
So there is a lot here. There are--there is the case of
personnel at the DOD Inspector General's office backfilling
evidence in files after the case is closed, which, you know,
sounds like some of the things that we have prosecuted people
for and people are doing jail time for. So there is a lot to
look at here.
Again, I appreciate our colleague, Mr. Zinke of Montana
coming before and testifying before this committee. We really
appreciate his good work. He's a great Member of Congress and
has done yeoman's work on this case, and I would like to hear
him and the other witnesses on this matter.
And with that, I will yield back the balance of my time.
Mr. DeSantis. I thank the gentleman from Massachusetts.
Without objection, the chair would like to introduce into
the record an op-ed published by William McRaven April 24th,
2016, ``A Warrior's Career Sacrificed for Politics.'' Without
objection, so ordered.
Mr. DeSantis. I will hold the record open for 5 legislative
days for any members who would like to submit a written
statement.
We will now recognize the distinguished witness on our
first panel. I am pleased to welcome representative at large
for the State of Montana, Congressman Ryan Zinke. We thank you
for your participation today. Your entire written statement
will be made part of the record, and we welcome any oral
remarks that you may have.
WITNESS STATEMENTS
TESTIMONY OF HON. RYAN ZINKE
Mr. Zinke. Well, thank you, Mr. Chairman. Thank you, Mr.
Chairman, and for the record, I was a commander at SEAL Team 6
and retired as a commander.
Good afternoon. Ranking Member Mr. Lynch, great to see you,
and distinguished members of the Subcommittee on National
Security. I would like to thank you for the opportunity to
testify before you today on the important issue of the
Department of Defense Office of the Inspector General's
military whistleblower reprisal program. In my testimony today,
I am going to focus my attention on the DOD IG investigations
of my friend and colleague Rear Admiral Brian Losey during his
time as commander of Special Operations Command Africa.
Beginning with an anonymous complaint in 2011, the DOD IG
held five separate investigations into accusations of reprisal
against Rear Admiral Losey, which have taken more than 4 years
to complete.
One of these investigations involved an alleged reprisal
against a suspected whistleblower under his command. During
this investigation, the office of DOD IG seemed to display a
blatant mishandling and misrepresentation of evidence, both in
their preliminary and final report. Following numerous
witnessed accounts of misconduct by the complaint, by Rear
Admiral Losey, and others, the security officer for Special
Operations Command Africa ordered a command directed
investigation, a CDI, into the complainant's actions.
During the preliminary report, the DOD IG blatantly
misrepresented the CID by stating that the investigative
officers completed the CDI and determined that all 10
allegations were not substantiated as alleged, a statement that
was eventually proven to be completely false.
The CDI found that three allegations were substantiated and
two of the allegations were partially substantiated.
Additionally, the CDI recommended the complainant should be
issued a negative referral on an officer performance report and
administrative discipline.
Acting on those recommendations, Rear Admiral Losey
relieved the complainant of his position and reassigned him to
a different position in a different geographical combatant
command that he believed would be commensurate with his rank.
Although the DOD IG amended their language in the final report,
the DOD IG still chose to dismiss the complainant of any
wrongdoing, dismissed the findings and recommendations of CDI,
and claim that the administrative actions taken by Rear Admiral
Losey constituted an act of reprisal. In reality, he was simply
holding a subordinate accountable for his actions following the
guidance of the report. That is clear.
In the same investigation, DOD IG claims, during this
investigation, Rear Admiral Losey specifically accused
complainant of signing three letters of retention for Air Force
officers using an autopen. However, the supposed accusation by
Rear Admiral Losey is not found in any of the DOD IG interview
transcripts. According to DOD IG, this accusation arose from an
unrecorded conversation the DOD IG investigator had with Rear
Admiral Losey outside of the official interview. The DOD IG
should not be using unrecorded conversations as evidence that
cannot be collaborated or confirmed. This is an unprecedented
action and has no legal merit and is completely inappropriate
behavior by the DOD IG.
Over the course of five investigations of acts of reprisal
by Rear Admiral Losey, the DOD IG was in blatant violation of
military law in Uniform Code of Military Justice. Title 10 U.S.
section code 1034 clearly states the DOD IG is required to
complete their investigations in 180 days or less.
Unfortunately, four out of five investigations completed by the
DOD IG were a complete disregard for the 180 deadline.
Additionally, per Title 10, U.S. Code, section 624, an
active investigation cannot hold statutory promotions up for
more than 18 months. After being confirmed by the Senate for
promotion, Rear Admiral Losey was promoted the rank of Rear
Admiral Upper Half on April 1, 2013.
On March 31, 2015, the DOD IG informed the Secretary of
Navy that Rear Admiral Losey was no longer subject to the fifth
and final investigation, one day shy of a promotion being held
up by the DOD for 24 consecutive months, far longer than the
18-month mandate.
These blatant acts of violations of law by the DOD IG not
only cheapen the findings of the reports but erodes the trust
the public and the military have in their government
institutions. If the DOD IG lacks the ability to simply follow
deadlines in investigations or use evidence that cannot be
collaborated, then it raises the question as to what other laws
and guidelines they simply choose to disregard during the
course of their investigations.
In conclusion, I would like to call upon the memo of that
of former Secretary Chuck Hagel penned in saying: It's central
to the military justice that those involved in the process base
their decisions on on their independent judgment.
Servicemembers and the American people must be confident the
military justice system is inherently fair and adheres to the
fundamental principles and due process of law.
With that, thank you for the opportunity to testify, and I
look forward to your questions.
[Prepared statement of Mr. Zinke follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. DeSantis. Thank you. Pursuant to unanimous consent
agreement, the Congressman will answer questions posed by
myself and Ranking Member Lynch, and then will be excused for
his business that he has to attend to. And the chair now
recognizes himself for 5 minutes.
Congressman Zinke, can you just provide the context to when
Losey got to SOCAFRICA? People had talked about it being based
in Stuttgart, Germany, and some had said that it was kind of
part of the wine-and-cheese circuit. What does that mean and
kind of how did he approach getting the command in order?
Mr. Zinke. Thank you, Mr. Chairman. And I can tell you on
personal experience, I have known Brian Losey a long time. We
served together at SEAL Team 6, and he was the red team lead.
He is hard charging and fair. To say that Africa command is
wine and cheese--I was stationed in Stuttgart and I believe I
was gone 250 days out of the year, primarily in Kosovo and
fighting the Bosnian wars. It is enormous responsibility of a
commander at AFRICOM. It is far from wine and cheese. I would
say it is an MRE on a hot rack.
Mr. DeSantis. In terms of as a commander, when--and you
have seen in the Navy, I have seen it, people abuse property,
there are frauds that can be committed, and so obviously those
things need to be ferreted out. When you have complaints
against the commander to kind of undermine that authority, if
you as a commander do need to take action but you have
complaints that are baseless, in your judgment, but are hanging
over you, will that chill your willingness, perhaps, to
exercise your correct judgment?
Mr. Zinke. You know, as a commander, you are obligated to
do the right thing. And when you see actions that are either
illegal or are not in order, you are obligated to take action,
regardless of consequence. But I do think, under the
circumstances, when the IG reports, you know, don't follow the
law, there is a sense that a whistle holder--or whistleblower
has the upper edge when a whistleblower can hide behind the law
knowing that the bureaucracy, I think there is a sense of
should I do the right thing or not? Because the consequences of
doing the right thing may have a negative consequence, as what
we see with Brian Losey.
At the end of the day, I think it is about the sanctity of
command, is that when you are a commander, you are in charge
those underneath you, whether it is a civilian or military. And
when you see something wrong, you are obligated to take a stand
and take action. But when that's interfered by a bureaucracy or
a different layer which doesn't follow the law, that erodes the
entire process of the Uniform Code of Military Justice and the
sanctity of command.
Mr. DeSantis. So what are your recommendations then,
because I think that you are a supporter of having
whistleblowers within the Department and all the agencies, be
able to bring waste, fraud, and abuse to light? That's good for
taxpayers. It is good for the American people. But then you
also have this other component about how it can intercept with
command authority. So what, if anything, do we need to do in
Congress so that this situation doesn't happen again?
Mr. Zinke. You know, there is absolutely a necessity to
have whistleblowers protection. If you see something wrong in
the military, whether you are a commander or a private, you
have an obligation to make people aware of it and take action.
I think that is incumbent upon the military force.
The question really is the IG. Who is he accountable to? Is
he accountable to Congress? Is he accountable--do we have a
fair system where you have the three branches of equal and
separate powers? Right now, I would argue that perhaps the
system in place is not equal and separate powers.
So I think holding the IG accountable certainly by Congress
is a step in the right direction and making sure there is
provision where acts conducted by a whistleblower or reprisal
by a commander needs to be independently reviewed in a timely
fashion. In this case, you know, 500 days, and it wasn't just
one star Admiral Losey lost. He lost two. And this is an
admiral that I know personally that has been in the forefront
of the global war on terrorism. You know, he has served this
country with great honor in some of the most sophisticated and
toughest missions this country has ever had to conduct, and yet
even he is subject to, my judgment, an unfair process.
Mr. DeSantis. Great. I am about out of time, so I will
yield, or I will recognize Mr. Lynch for 5 minutes.
Mr. Lynch. Thank you. And again, I thank the gentleman for
appearing before the committee and helping us with our work.
It surely appears that we have done a number of iterations
to try to revamp and reform the Office of the Inspector General
at DOD, and it is frustrating beyond our patience here. Some
have suggested that we need to put sort of an independent or an
outside inspector general on this case, not the Losey case but
just the manner in which we're getting information from the
Department of Defense.
I am sure that you know, our relationship up here with some
of these agencies is somewhat adversarial. We try to get
information from the FBI, we try to get information from the
CIA, Department of Defense. Oftentime they play the redaction
game or the waiting game with us, and it is exceedingly
frustrating for us, representing the American people, when
agencies act, you know, beyond the control of Congress.
On the other hand, whistleblowers, some people call them
our first line of defense. In my opinion, they may be our first
and last, because a lot of these agencies just refuse to give
us information. The subpoenas, we play that subpoena game all
the time, this is the chief investigatory committee in
Congress, they play that game all the time. It doesn't matter
what administration, Democrat or Republican, they still--it is
like pulling teeth to get information from some of these
agencies. The Defense budget is classified, so it makes it even
more difficult in that respect.
What is--what do you think, as a Member and someone who is
working very hard on this issue, you know, for your friend but
also for the wider interest of the American people, do you
think it is appropriate that we might appoint--adopt
legislation to appoint a special independent inspector general
on DOD matters to get to the truth of this and to eliminate
some of the inconsistencies and flaws in the system that may
have worked against the interests of Rear Admiral Losey in this
case?
Mr. Zinke. Thank you. It is a great question. And I would
say at the heart of the matter, you are absolutely right. Is
the law itself should be blind, and when an agency can violate
the law and hide behind a stonewalling, it frustrates us all.
We just want to get the truth. And maybe the answer is to look
at not just this IG but across the board. I mean, who does the
IG report to? Who is he accountable to?
I think we should look at perhaps having the IGs
accountable to Congress, because it is only, you know, our--it
is our ability to be an equal and separate branch of government
and have some oversight of what these agencies do. I think we
all share the same frustration is when we ask, we subpoena, we
beg, is that they oftentimes don't bother to give us the
information we want or hide it or delay it, on both sides of
the aisle. And I think what happens is the American public
looks at this and say, you know, it is corrupt, we are not
getting the right answers.
There should be a system in place where truth matters. And
I would think the IGs themselves may be looking at a dual chain
of command where the IGs are held accountable to Congress too,
because we fund it, but it is hard to fund when you don't know
where money is going or we sit in the--in these committees of
jurisdiction and we can't get the truth.
Mr. Lynch. I just want to, just to put a finer point on
this. We do have some inspectors general that are extremely
responsive to the committee. I don't want to paint everybody
with a broad brush, especially with what we see that has been
going under the previous--we have a new interim or acting
inspector general, Mr. Fine, over at DOD, who seems to be
getting things on track. I don't want to paint him with the
same brush either. But in the past, we have had some serious
difficulties there.
But I think DOD has been the outlier in this case. They
have been the worst in terms of, you know, the DOD operation
over there within the Office of the Inspector General at DOD.
That has been a real problem here. I wouldn't want to paint all
the others with that same broad brush.
Mr. Zinke. Nor would I.
Mr. Lynch. My time has expired. I yield back.
Mr. DeSantis. Well, the chair thanks the gentleman from
Montana for coming here offering his testimony and answering
some questions. I know you have other engagements and so you
are excused.
And we will do a short recess so that we can prepare the
second panel.
[Recess.]
Mr. DeSantis. The hearing will reconvene. We'll now
recognize the witnesses on our second panel. I'm pleased to
welcome the Honorable Glenn Fine, Principal Deputy Inspector
General at the U.S. Department of Defense; Ms. Lori Atkinson,
Assistant Director of Defense Capabilities and Management at
the U.S. Government Accountability Office; and Ms. Mandy
Smithberger, Director of the Straus Military Reform Project at
the Project on Government Oversight.
Welcome to you all. Pursuant to committee rules, all
witnesses will be sworn in before they testify. So if you can
please rise and raise your right hand.
Do you solemnly swear that the testimony you're about to
give will be the truth, the whole truth, and nothing but the
truth, so help you God?
Thank you. You can be seated.
The witnesses answered--all witnesses answered in the
affirmative.
In order to allow time for discussion, please limit your
testimony to 5 minutes. Your entire written statement will be
made part of the record.
Inspector General Fine, you are recognized for 5 minutes.
TESTIMONY OF GLENN FINE
Mr. Fine. Chairman DeSantis, Ranking Member Lynch, and
members of the subcommittee, thank you for inviting me to
discuss the work of the Department of Defense Office of
Inspector General regarding military whistleblower reprisal
investigations.
Whistleblowers are important to exposing waste, fraud, and
abuse in government programs, and they are instrumental in
saving taxpayer money and improving the efficiency of
government operations. They need to be protected from reprisals
for their protected disclosures. Without such protections,
individuals who can help save taxpayer money and possibly even
save lives may not report crucial information about wrongdoing
and waste.
The DOD OIG, therefore, seeks to conduct thorough, fair,
and timely investigations into allegations of whistleblower
reprisal. It is a challenging task, particularly given the
burgeoning whistleblower reprisal caseload and our flat level
of resources. However, we are committed to this critically
important mission and we regularly consider how to improve our
program.
First, with regard to the stated purpose of this hearing
and the two GAO reports, it is important to note, as GAO stated
in its testimony, that the GAO has already closed its
implemented 15 out of 18 recommendations from both its 2012 and
2015 reports. The three final recommendations are in the
progress of being implemented. That is significant progress.
However, I also want to point out additional steps and
progress we have made toward improving whistleblower reprisal
investigations even beyond what GAO has recommended. We
provided training in whistleblower reprisal investigations to
our OIG employees, as well as to over 1,000 personnel from DOD
component IGs and other Federal OIGs.
We shoot guidance to DOD component IGs to properly notify
complainants when military whistleblower reprisals will not be
completed within 180 days. We deployed a defense case activity
tracking system within the OIG for transmitting, storing, and
retrieving data and documents and for managing and monitoring
investigations. We developed an automated alert to help ensure
compliance with the statutory notification requirement to
provide servicemembers with accurate information regarding the
status of their reprisal investigations within 180 days. This
automated alert was implemented in April 2016, and we are
providing such notices.
With regard to the three remaining GAO recommendations, the
GAO recommended that we regularly report to Congress on the
timeliness of military whistleblower reprisal investigations.
We agree with the benefit of providing regular reports to
Congress on the timeliness of such investigations, and we will
do so regularly. We will provide the first such report on
October 31st, 2016.
We are also taking steps to implement the remaining two GAO
recommendations, including working with the Secretary of
Defense to standardize whistleblower reprisal investigations
throughout the Department.
In addition to these initiatives, I want to highlight other
significant improvements we have made to our program. I have
elevated the importance of the role of our whistleblower
protection ombudsman by making it a full-time GS-15 position
rather than a collateral duty. I've made clear that we should
be expansive in our interpretation of whistleblower protection
statutes.
I have promoted the need for greater transparency in the
outcomes of whistleblower reprisal and other OIG administrative
investigations. In particular, at my direction, we obtained a
change to our Privacy Act Systems of Records Notice, and we are
now proactively releasing the results of investigations when
the public's right to know outweighs the individual's privacy
rights even before the receipt of a FOIA request.
We have decided to handle all DOD reprisal cases stemming
from reporting of sexual assault. We created a dedicated
investigative unit to investigate these sexual assault reprisal
cases. We are instituting an alternative dispute resolution
program like that administered by OSC to pursue settlement of
whistleblower cases separate and apart from the investigation
process. This voluntary program can help reduce the cost and
time for resolving certain whistleblower cases and it can allow
limited investigative resources to be allocated to completing
investigations in a timely manner.
Finally, I want to emphasize that the critical
responsibility for the OIG when conducting whistleblower
reprisal investigations is to follow the facts wherever they
lead. If the evidence shows that an individual has been
reprised against, we need to conduct that investigation fully,
fairly, timely, and substantiate the allegation. By the same
token, if the evidence shows that the subject of the complaint
did not reprise against the complainant, we need to find that
and clear the subject in a timely manner. Both missions are
important.
I also recognize that we are likely to receive criticism
from either or both sides in the case, and the investigation
regarding Rear Admiral Losey mentioned by Representative Zinke
is an example of where disagreements can arise. But such
criticism should not deter us from reaching objective
conclusions based on the evidence. That is what we strive to
do, and the measures that I have described are designed to
improve our processes to meet that goal.
In sum, conducting whistleblower reprisal investigations is
a critically important part of the OIG's work, and we are
committed to continuously improving how we handle these
challenging duties. That concludes my statement, and I would be
glad to answer any questions.
[Prepared statement of Mr. Fine follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. DeSantis. Thank you.
Ms. Atkinson, you're recognized for 5 minutes.
TESTIMONY OF LORI ATKINSON
Ms. Atkinson. Chairman DeSantis, Ranking Member Lynch, and
members of the subcommittee, thank you for the opportunity to
be here today to discuss DOD Inspector General's progress on
improving its whistleblower reprisal program for military
servicemembers. Let me briefly summarize my statements.
Whistleblowers play an important role in safeguarding the
Federal Government against waste, fraud, and abuse, and their
willingness to come forward can contribute to improvements in
government operations. However, whistleblowers also risk
reprisal, such as demotion, reassignment, and firing.
We found in our recent reports that DOD IG oversight of
military whistleblower reprisal program faced challenges. For
example, we found that DOD IG was not consistently or
accurately recording key dates to track the length of
investigations, did not report the timeliness of its
investigations to Congress, had outdated guidance about the
process, and had not established performance metrics to ensure
the quality of its investigations.
My statement today is primarily based on GAO's February
2012 and May 2015 reports that contain 18 recommendations to
DOD to improve tracking investigation timeliness and
strengthening oversight of military service's investigations.
For this statement, we followed up with DOD IG officials to
determine what actions they had taken in response to the
recommendations we made. There are three main points for my
statement I would like to discuss here.
First, DOD IG has made progress and taken action to address
our recommendations to improve its tracking of timeliness and
to strengthen its oversight of investigations. For example, in
our recent report, we found that DOD did not meet the statutory
requirement to notify servicemembers within 180 days about
delays, and about half of the reprisal investigations closed
since fiscal year 2013. In response, DOD developed an automated
tool in its case management system to flag investigations that
were approaching 180 days.
Second, DOD has not taken action to regularly report to
Congress on the timeliness of its investigations nor on the
frequency and type of corrective actions taken in response to
substantiated reprisal claims. DOD IG reports some corrective
actions in its semiannual report to Congress, but that
reporting does not include all corrective actions nor address
outstanding corrective action recommendations. We continue to
believe that without such information, Congress will be
hindered in its ability to provide oversight of the corrective
actions portion of the military whistleblower reprisal program.
I would also like to note that just last week we received a
letter from DOD IG stating that it plans to begin reporting the
timeliness of investigations to Congress on a biannual basis.
We are encouraged by this step and look forward to the first
report this fall.
Finally, we found that DOD IG and the military service IGs
use different terms in their guidance to refer to their
investigations, which hindered DOD IG's ability to consistently
classify and assess the completeness of cases during oversight
reviews. For example, DOD IG investigators miscoded
approximately 43 percent of the cases that DOD IG closed in
fiscal year 2013 as full investigations when the service
reports indicate they were preliminary inquiries.
In 2015, we recommended that the Secretary of Defense, in
coordination with DOD IG, direct the military services to
follow standardized investigation stages and issue guidance to
clarify how the stages are defined. DOD concurred with this
recommendation and subsequently updated its guide; however,
this guide is characterized as best practices. We continue to
believe that by directing the services to follow standardized
investigation stages, DOD IG will be better able to ensure
consistent program implementation and consistent treatment of
servicemember complaints.
In summary, Mr. Chairman, DOD has taken actions to
implement the majority of the recommendations we made to
address timeliness and oversight challenges we identified.
Fully implementing our other recommendations would further
strengthen DOD IG's capacity to assess the quality of military
investigations and enhance Congress' visibility into timeliness
as well as corrective actions taken for substantiated
allegations.
We look forward to continuing to work with the DOD IG on
our ongoing work which is focused on reprisal investigations of
DOD civilians and contractors. That concludes my remarks, and I
will be pleased to take any questions that you and the members
of the subcommittee may have.
[Prepared statement of Ms. Atkinson follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. DeSantis. Thank you.
The chair now recognizes Ms. Smithberger for 5 minutes.
TESTIMONY OF MANDY SMITHBERGER
Ms. Smithberger. Thank you, Chairman DeSantis and Ranking
Member Lynch for inviting me here today. The Project on
Government Oversight was founded by Pentagon whistleblowers
concerned about overpriced and ineffective weapons. From our
founding, we've been concerned about protecting military,
civilian, intelligence, and contractor whistleblowers.
The Department of Defense Inspector General is supposed to
work with and protect whistleblowers, but a number of reports,
including the GAO report issued last year, raised serious
concerns. POGO has also heard directly from whistleblowers
within DOD IG. To hear from whistleblowers from an IG shop is
rare, and to hear from so many is unprecedented. An attorney
who represents several of them would be happy to meet with the
committee if you'd like more information.
The concerns of these whistleblowers are echoed in OPM
survey data. That data shows that a quarter of DOD IG employees
said they felt that they could not disclose a suspected
violation of law, rule, or regulation without fear of reprisal.
Nearly half said they didn't think their leadership maintains
high standards of honesty and integrity. This is double the
rate reported by DOD employees. DOD IG should be a model
agency, and this kind of survey data raises serious concerns.
In March, we sent a letter to Principal Deputy IG Glenn
Fine raising concerns about timeliness of investigations, a
toxic culture towards whistleblowers, and insufficient
transparency for military reprisal investigations. Our letter
raised concerns that managers in the IG's administrative
investigations division, who conduct reprisal investigations
across the Department, had backfilled case files to try to
mislead GAO investigators. We've also raised concerns about DOD
IG's rate of dismissal. DOD IG dismissed without full
investigation 86 percent of the military whistleblower cases it
received in the past 4 years. We were surprised that this rate
was more than double that for the service IGs who are
traditionally considered to be less independent.
DOD IG substantiated only 1 percent of the cases during
this period. Frankly, things are bad for most whistleblowers
who come to DOD IG. DOD IG substantiated only 7 out of over
1,300 complaints received from civilians and contractors.
Those rates are about half of what we have seen for Federal
employee whistleblowers at the Office of Special Counsel. Low
investigation and low substantiation rates create the
appearance the Office is focused on closing rather than
investigating the cases it receives.
The high dismissal rates may be in part due to changes by
DOD IG to reduce cycle time by automatically closing cases
within 10 days if whistleblowers do not provide additional
information. While we agree with the committee that timeliness
is important, we worry this timeline is too short since
servicemembers may be deployed, disabled, or otherwise limited
in their ability to access documents in a timely manner.
Striking the balance between timeliness and quality is
extremely difficult, and we appreciate that, but both must be a
focus of this committee's oversight.
We are also concerned DOD IG is not consistently talking to
whistleblowers before dismissing cases in violation of their
own procedures. Talking to whistleblowers not only helps that
investigation but it also prevents DOD IG from unknowingly
exposing whistleblowers to additional retaliation by referring
their complaints back to the entities that they were initially
reporting on.
We are also concerned about whether whistleblower laws are
consistently and fairly applied. A 2011 internal review found
that DOD IG's own investigators disagreed about the decision to
dismiss a case 68 percent of the time. Investigators disagreed
with each other on substantiating cases 47 percent of the time.
The GAO's review mentioned other problems as well with the
case management system, specifically finding that key case
documents were submitted after cases were closed for 77 percent
of the cases closed in 2013 and that key case variables like
dates and results to show whether a case was fully investigated
were changed in 83 percent of the cases in fiscal year 2014.
The problems may be even worse than those found by GAO
since DOD IG managers told investigators to stand down on other
work to backfill cases. Internal emails shared with POGO showed
that managers instructed investigators to work on or amend
older information that was the focus of the GAO review and
raises concerns about those managers since changing these
records likely has significant impact on the GAO's findings.
Separately and in the broader picture, POGO is most
troubled by the role of IG General Counsel Henry Shelley. Since
sending our letter in March, OSC has found there is a
substantial likelihood of truth to allegations the IG
improperly destroyed files in a major whistleblower case. These
allegations are now being investigated by the Inspector General
at the Department of Justice. This is only the latest of
various allegations that have come to public attention, that
Mr. Fine's top legal advisor engages in a systemic practice of
improperly interfering with and undermining personnel
investigations.
For example, a POGO investigation found that as--a top
legal advisor to one of Mr. Fine's predecessors, Mr. Shelley
helped direct a process that permanently suppressed the
findings of a team of IG investigators regarding top officials
of the Department of Defense, including the Secretary of
Defense.
In my written testimony, I've included a list of
recommendations that POGO believes would enhance and strengthen
military whistleblower protections, which I will be happy to
discuss during Q and A.
Whistleblowers who report concerns that affect our national
security must be lauded, not shunned or, worse, harmed, and the
law must protect them. The perceived and real failures of the
DOD IG to act as a check on violations of law should be of
grave concern. Thank you.
[Prepared statement of Ms. Smithberger follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. DeSantis. Thank you.
The chair now recognizes himself for 5 minutes.
So, Mr. Fine, there's statements made here that there's
so many of these cases, very few of them are substantiated.
I think the implicit criticism perhaps from our witness here is
that you guys just aren't doing your job, that there are these
cases that are just not been substantiated. And that may be the
case, but I also look at it and say: Well, maybe those ones
that are dismissed are being dismissed properly and that we
have an awful lot of people that are filing these that can't be
substantiated.
So how would you respond to the ratio issue that you get a
lot of complaints, you don't substantiate very many?
Mr. Fine. Well, that's a very good question, and I
appreciate the opportunity to answer that question. First, with
regard to the data. I don't think the data is really accurate,
because when you talk about 86 percent being substantiated,
POGO includes in that the amount that we were referring to the
services for them to investigate, so not 86 percent are not
dismissed. A big portion of them are referred for
investigation.
As I said in my statement, our job is to take the facts
wherever they lead, and if it is substantiated in our view, we
should do that, and if it's not, we shouldn't. And we are going
to get criticized from both sides. You're too hard, you're too
soft. You're doing a whitewash, you're doing a witch hunt,
you're a junkyard dog, you're a lapdog. You get that often in
the same case.
We can't let that deter us. We have to look at the evidence
and look at the facts, and we take each case on its merits and
we try and follow them through.
It is a challenging task. It is a challenging task to
determine if there really was retaliation or whether it was an
unfair allegation of reprisal. And we look for the evidence and
we take it where it leads. That's our job, and that's what I
try to describe how we're trying to improve our processes.
Mr. DeSantis. And part of the reason why you may get
criticism from both sides is because this process of
substantiation, there's a lot of subjectivity to that.
Commander Zinke was very critical of the report involving Rear
Admiral Losey. I have--I have read those reports. I have not
read some of the other cases that have been cited here, but I
will say that it struck me, looking at Losey's case, that you
had the Navy investigated, they said that there was, you know,
legitimate command reasons to take some of these decisions,
that DOD IG obviously came to different conclusions in some of
the findings. The chief of naval operations took all that into
consideration and said that while he should not have been
complaining about the initial false report, you know, his
actions were justified.
And I guess my question is, is with the level of
subjectivity, as I read the report for DOD on Losey, for
example, I mean, there were certain decisions that were made
that were very much just reading it in a light that was
probably least favorable to him.
I mean, for example--and I'm not going to name the
complainants, but one of the complainants testified that Losey
told him that he did not suspect him of being the original
whistleblower. When Losey testified, he said he did not suspect
the complainant from being the original whistleblower, but the
complainant said: Well, his body language suggested that I
was--that he thought I was it, and the IG basically concluded
that he was--that that was one of the reasons why he was being
found.
There's another issue of about one of the admin officers
was given not the highest but the second highest grade in terms
of his evaluation, and the IG report was critical of the
commander for not doing an improvement plan. But a lot of
people I've talked to in Defense, they would say that that's
too high a rating to necessitate an improvement plan.
So I guess the question is, is how do you ensure
objectivity and a consistent standard when you're determining
what is substantiated and what is not?
Mr. Fine. Well, you look at the standard and you apply that
standard to the facts, and you don't rely on one piece of
evidence, whether it's body language. We do report what people
say, but that's not the significant piece of evidence that
would conclude us--that would allow us to conclude that there
was retaliation. We look at all the evidence. We put it in the
report so that people can make their own judgments.
We did look at all the evidence in this case. It was a case
before my time, but I looked at it, and it seemed a pretty
strong case to me, including the language that Admiral Losey
had repeatedly speculated on who made the complaint against
him, focusing on the complainants and a few others, asking his
staff to find out who made the complaint, and then saying he
would find out why they did this and cut the head off the snake
and end it. And that's what the evidence indicated happen. Now,
I don't want to necessarily----
Mr. DeSantis. Well, one witness said he said that, but he
denied saying that, correct?
Mr. Fine. He denied saying that, and other witnesses said
that he asked to find out who did it and asked them to go find
out who did it and that they actually did, and they told him
let it go, as a commander you're going to get complaints, just
let it go, but he didn't.
And we talked about the CDI, you know, as Representative
Zinke talked about. Well, the CDI was initiated after he had
taken actions against the complainant. And if you read the CDI,
it does not fully support those actions.
And so we--you know, it is a hard thing, and there are
professional disagreements. There is often disagreements within
our own organization. That's why you need to review it and
carefully assess the evidence and reach appropriate conclusions
and then to lay it out for people. Lay it out for people so
that they can make their own determinations. I think that's the
most important thing.
You may disagree, others may agree. I think it's important
that we fully and fairly investigate it, and I think we did in
this case.
Mr. DeSantis. What about the--using whistleblower
complaints in order to resist changes in a military command? I
think this is a different issue than we would face in virtually
all the other whistleblower complaints and other agencies, and
I realize there's a different standard for military complaints.
But here, you had an initial complaint against Admiral Losey
that was just factually false.
Mr. Fine. Right.
Mr. DeSantis. He paid out of his own pocket for his
daughter. But even if he didn't, he still would have been
following the law. And then I would say the complaint about
there being a toxic climate is negated by the review that had
been done by SOCAFRICA--or by AFRICOM about what they were
doing to change the culture.
So what--is there a penalty if somebody is using that in an
inappropriate way? And I just--I know with the numbers--and I
think you made a good point about that, but clearly there are a
significant number of complaints that are made that are just
not substantiated. And while we want to root out waste, fraud,
and abuse, I don't want to burden a military commander of
having to fend off some of this stuff if there's no underlying
basis to it.
Mr. Fine. Right. And they ought to then let the
investigators do their job without conducting their own
investigation, without trying to find out information----
Mr. DeSantis. I understand that. But what--is there any
problem with somebody using this inappropriately to blow a
whistle when there's really no foul created?
Mr. Fine. If one can show that they did so without good
faith and knowing that it was intentionally false, yes, action
can be taken. That's a hard standard.
Mr. DeSantis. What action would be--that would be an
administrative action?
Mr. Fine. That would be an administrative action, yeah.
Mr. DeSantis. Okay. My----
Mr. Fine. That's a hard standard to prove, I got to tell
you that, and you do not want to, in my view, start chilling
whistleblowers from bringing forward good faith allegations,
even if they're not true. If they--you know, if they have a
good-faith basis for it, they ought to be able to come forward,
and we ought to investigate the underlying thing, and their
ability to do that shouldn't be infringed upon.
Now, I understand that that's a difficulty, and we have it
in our own organization, as was pointed out, and we seek to
have full and fair investigations of it. You know, POGO was
talking about the allegations against Mr. Shelley. Mr. Shelley
adamantly disputes them, adamantly. Came to me, and instead of
sweeping it under the rug, I decided, you know what, let's get
an outside investigation, an independent investigation of this,
and we'll take it wherever it leads, and we'll address it. And
I think it's unfair to think that he's guilty before it's done,
but it's also important to investigate it, and that's what we
do, and it is difficult, but that's--that's what you have to
do, and that's what we did in this case. And so we will wait
the outcome of the investigation and take appropriate action,
whatever it finds.
Mr. DeSantis. My time is up.
The chair will now recognize the ranking member, Mr. Lynch,
for 5 minutes. If he needs more, he can take more.
Mr. Lynch. Okay. Thank you, Mr. Chairman.
The GAO report indicates that the rate of dismissal,
though, at the DOD IG is far in excess of what it is for other
services, 85 percent of the cases dismissed. So--and I'm
reading from the GAO report. They compared your--not yours,
because you weren't there, you weren't in that position, but
your predecessor.
The DOD IG closed 364 senior official cases, so we're
comparing senior officials when they're charged versus, you
know, rank and file. But in those cases where senior officers
had been--or senior officials had been complained of, in your--
in your investigations, you only investigated 27 out of 364 and
then substantiated only 5, but you closed 364 cases.
In contrast, when we look at the other services and
component IGs, they closed 250 senior official cases. They
investigated all 250 of them and substantiated 90. So it just
doesn't look right in terms of the mix there.
Mr. Fine. Can I, Congressman? Sorry.
Mr. Lynch. We're going to give you plenty of time.
Mr. Fine. Sure.
Mr. Lynch. I've got a couple of other things here I want to
ask you as well.
The practice of backfilling, adding--you know, this the
case management system, adding documents after the case has
closed or in advance of the GAO POGO's investigation, sort of,
you know, adding evidence to the case after the verdict has
already been rendered. You know, when you took over, did you
tell people you can't do this? Did you explain to people that--
--
Mr. Fine. Congressman Lynch, when I took over, I wanted to
get to the bottom of this because I heard this allegation, and
the reality is it was not backdating in the sense that you're
talking about it. What it is, we were transitioning from a
paper-based system to an electronic system, and we had to put
that information in there, in the electronic system. There were
also additional fields.
Mr. Lynch. But here's the deal.
Mr. Fine. And we let----
Mr. Lynch. Here's the deal.
Mr. Fine. --GAO know about it.
Mr. Lynch. You dismissed this case, though.
Mr. Fine. Which case?
Mr. Lynch. This case right here, figuratively.
Mr. Fine. Okay.
Mr. Lynch. You dismissed this case. It was not warranted.
Mr. Fine. Right.
Mr. Lynch. Okay. Then you got--you got evidence after--
after the case was closed and you put the evidence in there.
Mr. Fine. No. We had evidence in there and then we put it
into the database system, all of it. But we let GAO----
Mr. Lynch. And you put it back----
Mr. Fine. We let GAO know it, and they were aware of it,
and this is in accord with their data reliability thing.
Mr. Lynch. Let's talk to GAO then. Let's ask POGO. Explain
to me this--I read both reports, GAO and POGO report, and it
appears to me that it alleges that there's backfilling of
documents to files and they're being--also being mislabeled as
investigative when they weren't investigative.
So let's take those two instances where there's
backfilling, that's how it's described here, of new documents
and files after they're dismissed, and secondly, there are
cases that are labeled investigative when they're really not.
Ms. Smithberger. So for the first--first, I'll talk about
the mislabeling the investigations, and that gets to the heart
of our recommendation about standardizing the guidance for the
military services. And we think that is--was part of the
problem, because when the DOD IG went in to oversee, there was
differences in how the services were doing this, and therefore
it led to the 43 percent that I pointed out being mislabeled as
full investigations when they were actually preliminary
inquiries.
So we continue to believe that by the IG working with the
Secretary of Defense to standardize the guidance so that would
help--better help resolve that problem.
Mr. Lynch. You think so, Mr. Fine?
Mr. Fine. Absolutely.
Mr. Lynch. Okay.
Mr. Fine. That was the issue, that they had preliminary
investigation that took forever, and our folks----
Mr. Lynch. Right.
Mr. Fine. --had to figure out where to put that in.
Mr. Lynch. Right.
Mr. Fine. It definitely would help if we had
standardization.
Mr. Lynch. So the statute says 180 days, and we're doing
526 or something like that?
Mr. Fine. Well, the statute says we have to--if we don't
complete the investigation within 180 days, provide a notice to
the complainant----
Mr. Lynch. Right.
Mr. Fine. --and responsible management officials that we
haven't completed it and the reasons why. It doesn't say you
have to complete it within a----
Mr. Lynch. Right, right. But you got to let somebody know,
right?
Mr. Fine. Exactly, and we weren't doing that. We are doing
that now.
Mr. Lynch. Okay.
Mr. Fine. We have an automated alert. This is based on
their recommendation.
Mr. Lynch. All right. Let's go to--let's go to backfilling.
And I appreciate that, Mr. Fine. I don't intend to--I only have
limited time.
Mr. Fine. Sure.
Mr. Lynch. so I don't mean to cut you off.
Mr. Fine. I understand.
Mr. Lynch. But Ms. Smithberger or Ms. Atkinson, can we talk
about backfilling, about documents going into the files?
Ms. Atkinson. Yes, sir. Based--when we reported in our 2015
report was that DOD IG personnel uploaded key case documents
after cases closed in 77 percent of the cases closed for fiscal
year 2013. DOD IG staff made changes to case variables after
cases were closed in 83 percent of the cases closed in fiscal
year 2013. And this was based on our case file review that we
did when we took a random sample of cases and had analysts go
in and review and look for certain documentation and so forth.
Mr. Lynch. Okay. Do you think they were trying to mislead
Congress or mislead GAO?
Ms. Atkinson. Sir, I can't speak to the intent or----
Mr. Lynch. All right. Ms. Smithberger, can you speak to
that?
Ms. Smithberger. The whistleblowers that we have spoken to
do feel like the intent was to miss the GAO.
Mr. Lynch. Okay. All right. I'm short on time. Let me
just--let me just say this in closing. I don't expect the
Department of Defense to be run like a charm school. I
understand the culture there, it's by rank, it's by command,
there's a--you know, there's a healthy impetus to follow
orders. But in cases like this where we may have people
engaging in illegal or certainly misconduct on some level, you
do want to have your personnel feel that they can report, that
they can blow the whistle, and we want to protect that right
because, as I said in my opening statement, there's a lot of
concealment going on. It's very difficult to get information.
So we rely--unfortunately, we have to rely heavily on
whistleblowers to tell us when things are going wrong at some
of these agencies.
With that, I yield back the balance of my time.
Mr. DeSantis. The gentleman yields back.
The chair now recognizes the gentleman from Georgia, Mr.
Hice, for 5 minutes.
Mr. Hice. Thank you, Mr. Chairman.
Mr. Fine, let me begin with you and just try to get some
clarification.
According to the testimony that we've been given, the DOD
IG automatically closes a case within 10 days. Is that not
right?
Mr. Fine. That's not right. What the issue is, is if we are
trying to get in touch with the complainant and the complainant
drops off the screen and we can't get in touch with them, we
tried several times again and again, finally, we'll send them a
letter, a 10-day letter saying if you don't get back to us,
we're going to close the case. We issued one 27 times in 4
years, 27 times in 4 years. And in those cases, 8 of them
responded and we continued with the case, and the others never
responded and we closed the case.
It is a prudent management tool if after a long period of
time the complainants do not contact you, do not respond to
your calls, it's important to close that case if they're not
willing to go forward and----
Mr. Hice. So how long do they have before they get the 10-
day letter?
Mr. Fine. They have at least several times where we contact
them repeatedly and ask them to get in touch with us. And if
they persistently do not get back to us, not in a short period
of time but over an extended period of time, we'll eventually
send a letter saying, look, if you don't get back to us----
Mr. Hice. So what kind of time do you give them before--in
between letters? In other words, if someone is deployed----
Mr. Fine. Yes.
Mr. Hice. --if someone's engaged or something, what----
Mr. Fine. We absolutely are aware of that and give them
time and give them--you know, I can't give you an exact figure,
but our investigators know to give them significant time. And
it's only when they repeatedly won't get back to us.
Mr. Hice. So you don't have a policy as to how--so who
determines how frequently you try to reach out to them?
Mr. Fine. We're constantly reaching out to them, because
without them, we can't go forward.
Mr. Hice. All right. You're constantly, what does that
mean? I'm trying to wrap my mind around this. My understanding
was 10 days. You're saying 10 days is the final----
Mr. Fine. The final----
Mr. Hice. --after multiple previous attempts.
Mr. Fine. Exactly.
Mr. Hice. So what's the timeframe in which these attempts
are made?
Mr. Fine. You know, I can't give you a specific number. I
don't have a metric, but I believe it's months.
Mr. Hice. Okay.
Mr. Fine. And if somebody then says, You know, I was
deployed, we will reopen that case. You know, that's not an
issue.
Mr. Hice. Ms. Atkinson, do you believe there's room for
improvement on this, just what appears to me a rather nebulous
policy?
Ms. Atkinson. We do not specifically look at that, but I
will tell you that when our--in our ongoing work looking at
civilians and contractors, we are going to be looking at
dismissals and substantiation rates, and so we may have more
insight into that.
Mr. Hice. Okay. Let's go back, Mr. Fine, to you again, came
up a moment ago about standardization. Where are we in that
process?
Mr. Fine. Well, we are working with the service IGs to try
and implement standardized processes. They all--not all but
some of them do it different ways, preliminary investigations,
how they do things. We believe it's appropriate to have a
standardized process that will allow us to do things in a
timely way and in a standardized way.
Having said that, the recommendation from GAO was to have
the Secretary of Defense issue a directive to ensure that that
happens, and in some sense, that's the only way it will happen,
and we are willing to work with the Secretary of Defense to try
and pursue standardization. That will take time, as you know,
probably know. Getting a directive in the Department of Defense
is not a easy thing. But in the interim, we are trying to
voluntarily get them to standardize processes, and we have a
working group set up where we meet with them and try and
implement that.
Mr. Hice. Do you think it'll happen?
Mr. Fine. I hope so. I think so.
Mr. Hice. Ms. Atkinson?
Ms. Atkinson. We certainly hope so. We think that's a key
recommendation. And they have been working with a working group
and they did change the guide, but the guide again is best
practices, and we do believe it should be directed.
Mr. Hice. Do you believe we can make that happen?
Ms. Atkinson. I hope that they can.
Mr. Hice. Okay. All right. So you have multiple attempts to
reach out to these servicemembers. Right now, the reprisal
investigation is--it was 526 days. Now it's been shortened.
Mr. Fine. Right.
Mr. Hice. But technically, the statute says 180 days?
Mr. Fine. Well, the statute says if you don't complete it
in 180 days, you have to notify them that it's not completed
and about the delay, so it doesn't require you to complete it
within 180 days. Having said that, we do agree it should be
shortened. We are seeking to shorten it.
In fiscal year, I think, 2014, it was over 500 days. In
fiscal year 2015, it was 300 days for our investigations.
That's still too long. We're trying to shorten it.
Mr. Hice. So there's no consequences except to the
serviceperson for this going far beyond 180 days. And you can
continue to prolong it. So long as you keep notifying, there's
no dead end to this thing.
Mr. Fine. Well, we don't--yes. We intend to do this as
quickly as possible. The consequences are we're held
accountable in these kinds of hearings. And I would say this
too. I wrote it in my written statement. You know, there is a
burgeoning case load in whistleblowers. It is dramatically
increased. We have not dramatically increased our resources. We
are doing more with less.
I believe, as an IG, we ought to be commensurate with the
Department of Defense. If they grow, we ought to grow. If
they're stable, we ought to be stable. If they're constricted,
we ought to constrict.
If you look at the last 20 years, the Department of Defense
has grown dramatically. We haven't. If we had--if we had simply
kept pace with them, we would have 500 more employees. We would
be able to do these with more resources, rather than giving our
investigators lots and lots of cases to work on, and I think
that would inure to everybody's benefit, everybody's benefit.
Mr. Hice. Mr. Chairman, my time has expired.
And I appreciate that, but it seems to me that the
servicemen and -women are suffering the longer this goes on.
They are the only ones suffering. Everyone else gets a pass,
but they are the ones that take a kick in the gut.
And I yield back.
Mr. DeSantis. The gentleman yields back.
The chair now recognizes the gentlewoman from Michigan for
5 minutes.
Mrs. Lawrence. Thank you. The importance of whistleblowers
cannot be overstated. Whistleblowers in the Department of
Defense has the unique ability to expose fraud and waste in an
agency that spends over $500 billion of taxpayer dollars a
year, and that accounts for almost a third of the programs on
the GAO high risk list.
More importantly, DOD whistleblowers save lives. I want to
be very clear about that. So this discussion we're having is
very serious. Courageous whistleblowers like Mr. Coleman or Mr.
Gayl, both Marines, come forward often at a great personal cost
in order to protect others.
Ms. Atkinson, GAO has remarked that the DOD's culture does
not encourage whistleblowing. Can you explain why?
Ms. Atkinson. We reported in our 2015 report a statistic
from the OPM's Federal Viewpoint Survey that talked about that,
and that was the--where that information came from, and it
was--there were two statistics, and one was for overall
servicemembers, and I think there was something like one in
five servicemembers felt that they would be able to provide a
complaint. And then the second one was a higher percentage, and
that was toward--for members of the Office of the Inspector
General. So that was not an initial--original GAO survey. That
was in the information that we found in an OPM survey.
As far as the culture and so forth, you know, we think that
continued oversight of the program is important, reporting to
Congress on timeliness and corrective actions, monitoring
their--the initial performance metrics that they've established
for timeliness and completeness, and then, of course,
importantly, reporting the corrective actions, because
corrective actions can demonstrate the results of the
investigations and offer hope to future whistleblowers and
deter future incidents maybe.
Mrs. Lawrence. I have a short period of time. Mr. Fine,
having worked in HR, you whistleblow when you're not heard. You
whistleblow when there is a culture that when something is
wrong, you're just supposed to do it and not have input.
Mr. Fine, just briefly, because I'm limited, tell me why
whistleblowing has become a protected and defined activity or a
culture that we are now having this hearing. Can you address
that? What is the culture that we now have to develop processes
to protect whistleblowers versus a culture that embraces the
ability to empower people to have input on their jobs?
Mr. Fine. Well, I think the idea would be to have people
have input in their jobs and feels if they can go to their
management, their management would take appropriate action. And
that is what managers and leaders strive to do. Is it always
possible? I don't think so. And I also think that some
whistleblowers don't believe that their management will take
appropriate action or believe it's appropriate to bring it to
other people's attention.
Mrs. Lawrence. Is there any action to address that?
Mr. Fine. Well, we do have whistleblower ombudsmen who
educate people about their rights and responsibilities, both
the rights of whistleblowers to be protected, the
responsibilities of managers not to reprise against them, where
they can go to provide whistleblower disclosures, what the
processes are. I think it is important to educate people about
the overall environment for whistleblowers.
Mrs. Lawrence. Ms. Atkinson, which of your recommendations
is tailored to get the high number of dismissals back in line
with other service IGs?
Ms. Atkinson. To get the high number of dismissals back in
line? I think that like----
Mrs. Lawrence. Because you said it was higher than others.
So what is the plan?
Ms. Atkinson. That's actually POGO.
Ms. Smithberger. If I may interrupt.
Mrs. Lawrence. Okay.
Ms. Smithberger. Let me provide some clarification. So
we're not necessarily sure what the right rate of dismissal
should be, but we think that it would be good to do another
review to make sure that DOD IG is consistently following its
own policies and the law to appropriately dismiss cases when
they should be dismissed and appropriately investigating cases
when they should be investigated.
Mrs. Lawrence. Mr. Fine, will you commit to us today that
you will improve the current problems? We have--we seem to be
real good at outlining what the problems are with this
whistleblower reprisal investigation. You did state that you
feel that there is an issue with resources. With that being
heard, what is your commitment?
Mr. Fine. Oh, yes. We are trying, and I can commit to you,
we are seeking to improve the processes with all the measures
that I described in my statement. I do think it is important,
and we are continuously seeking to improve.
Mrs. Lawrence. Thank you. I yield back.
Mr. DeSantis. The gentlewoman's time has expired.
Ms. Smithberger, what is the right percentage of people? I
mean, I just--I don't--I don't understand--I mean, the military
is a different culture. Who's to say that it should be the same
as the others?
Ms. Smithberger. It might not be. We just want to make sure
that everyone is consistently following the same law. We get
concerned when we see substantiation rates that are as low as 1
percent or less than 1 percent, because that seems to send the
message that there aren't really any credible whistleblowers
that have been reprised against, and we see that those numbers
are much lower than we've seen for OSC.
One of the great things that DOD IG does is that they do
report what happens to all of these cases. We wish that all of
the IGs would do so so that we could ask the same kinds of
questions, and we really appreciate their transparency on this.
Mr. DeSantis. All right.
The chair now recognizes Mr. Duncan for 5 minutes.
Mr. Duncan. Thank you very much, Mr. Chairman. I have in
front of me an article from the New York Times, slightly over 3
months ago, and it says: Whistleblower Beware. And it starts
off and it says: Should it be a crime to report a crime? Many
top officials in Washington seem to think so, at least in the
case of Edward Snowden.
And it goes on to say that Secretary Clinton said that
Edward Snowden would have gotten all the protections of a
whistleblower, but it says, Thomas Drake would disagree, so
would John Crane. And this article tells how these cases were
all intertwined.
It says--and the Federal judge handling the case against
Drake blasted prosecutors for putting Mr. Drake through 4 years
of hell, said Mr. Snowden followed the Drake case closely in
the news media and drew the obvious conclusion, going through
channels was worse than a dead end. And then it tells how Mr.
Crane was tied into that because it says Mr. Crane argues that
the Defense Department broke the law in Mr. Drake's case. And
then he was--he was dismissed.
So I would like to ask all three of you or any of the three
of you who would like to comment, if you have studied that
situation, how those cases are all tied in together and what
you have to say about these really accusations in the--in this
New York Times story that it's a dangerous thing for a
whistleblower to come forward.
Mr. Fine, we'll start with you.
Mr. Fine. I think that I don't want to comment on the Drake
case or the Crane case. Some aspects of it are still open and I
don't want to impair that in any way. I will say that it is
important that whistleblowers believe and that they know that
if they do come forward, that they will be protected from
reprisal and that there will be a full and fair and timely
investigation done of that. That's an important issue. That's
what we're striving to do. That's why we're striving to improve
our programs.
Mr. Duncan. All right. Any of the--do the--do the
gentleladies here know, are you familiar with these cases that
this New York Times article has written about?
Ms. Atkinson. No, sir. We did not look at specific cases.
We did more a case file analysis and made generalizable
observations about the process and guidance and stuff. Related
to this, I guess, would be that we did report in 2015 that the
substantiation rate for both DOD and IG and the service
investigations were both under 10 percent. And this is also
related to, I think, the importance of our recommendation about
the need to report corrective actions and how that can benefit
whistleblowers.
Mr. Duncan. All right. Ms. Smithberger?
Ms. Smithberger. The Drake case did send a message to a
number of whistleblowers that if you go through the right
channels, you're still likely to have your career ended as a
consequence, and so--and people refer to that case frequently.
In particular, there are concerns about DOD IG's role in
turning over Drake, to recommend him being prosecuted under the
Espionage Act. So DOD IG has a very difficult role in both
trying to enforce laws and work with whistleblowers, but we do
think that that created a chilling effect.
Mr. Duncan. Mr. Fine, do you think, is there anything at
all that you think the Department of Defense could or should be
doing to make the--or to give encouragement to whistleblowers
to come forward that they're not doing now?
Mr. Fine. I think along the lines of what we've been
talking about, to the extent we can standardize processes, we
can improve programs, we can provide adequate resources so that
the cases will be done in a more timely fashion, not only
talking about resources for us but for the service IGs. Service
IGs do a significant number of these cases. And when they're
not adequately resourced either, then the cases languish, and
it's a difficult task and challenge for them.
I think reflecting the importance of whistleblowers and the
need for everybody, both the complainants as well as the
subjects whose careers are on hold while the case is going, it
is important to do these in a timely way and it's important to
adequately resource them. So I think that's a critical factor.
Mr. Duncan. All right. Mr. Chairman, I would like to submit
this article from the New York Times called, ``Whistleblower
Beware,'' to be entered into the record at this point. And I
yield back.
Mr. DeSantis. Without objection, it shall be so ordered.
Mr. DeSantis. The chair now recognizes the gentleman from
Florida, Mr. Mica, for 5 minutes.
Mr. Mica. Thank you. Thank you, Mr. Chairman.
Mr. Fine, how many whistleblower reprisal investigations
have there been, like maybe 2015, 2014, 2013, do you know, each
year?
Mr. Fine. I don't know the exact numbers. We can certainly
get you the statistics. There are hundreds of them, hundreds of
them.
Mr. Mica. Every year?
Mr. Fine. Yes. If you count the ones done by DOD IG as well
as the ones we refer to the service IG.
Mr. Mica. Is there one service that sort of stands out?
Most of them are not----
Mr. Fine. They all have them.
Mr. Mica. --equal.
Mr. Fine. They all have them.
Mr. Mica. And then I saw the time of resolving these cases,
and some of that's been discussed. They put in law that--I
guess it is in law the 120--is that 120-day goal----
Mr. Fine. 180.
Mr. Mica. --or by rule?
Mr. Fine. It's a law. After 180 days, you have to notify
the complainant, if it's going to be delayed beyond that, as
well as the responsible management officials to provide
notification.
Mr. Mica. Okay. So you have hundreds of cases. How many
staff do you have hearing the cases?
Mr. Fine. Sir, we have increased the staff, if you look at
the last several years. We have around 50 staff who do
whistleblower reprisal cases.
Mr. Mica. So 50 staff and a couple of hundred cases a year.
Is that----
Mr. Fine. Not a couple hundred for us, but 50 staff to do--
well, to do the cases themselves and then the oversight of the
service IG cases when they come in--when they finish their
investigation and send it to us. And then the service IGs have
staff as well.
Mr. Mica. One of the things I read about is the reprisal
investigations, there's--for each of the services, there may be
different procedures. There's varying procedures, and some have
recommended standardization. Maybe you could tell us what is
wrong with having these variations, and then do you make the
case for standardization based on those?
Mr. Fine. There are a couple of reasons I would make the
case for standardization. One, I think, within the Department
of Defense, you'll have a single process, and it shouldn't vary
whether you are in the--whether in the Navy, the Army, Air
Force, or civilian.
Mr. Mica. Could that be done administratively through the
Secretary?
Mr. Fine. Yes, the Secretary.
Mr. Mica. Okay. So the authority is there to do this, to do
the standardization?
Mr. Fine. Yes. And the GAO recommended that we work with
the----
Mr. Mica. And you recommended.
Maybe, Mr. Chairman, we could also send a letter after this
hearing saying that the GAO has recommended and this hearing,
the witnesses we had recommend, and we find there would be
benefit and then some fairness to everybody. It sounds like
there's disparity in, again, these approaches.
Is there any--also, when you have a reprisal investigation,
is there any penalty against the accuser if the reprisal--you
know, the person going after them, they find it is a false or
there's no merit to the claim?
Mr. Fine. Not if the allegation was made in good faith, if
they had a good-faith belief in the allegation.
Mr. Mica. Have there been any cases where you've gone back
after these people?
Mr. Fine. I don't know the answer to that in recent times
whether we've gone after people, but we--I think it would, you
know, have a pretty significant chilling effect if you started
investigating the complainant.
Mr. Mica. Well, again, it's--you don't want a chilling
effect, but you don't want to use that--Mr. Duncan just read a
case, and I read this, is it L-O-S-E-Y, the Brian Losey----
Mr. DeSantis. Losey.
Mr. Mica. --Losey, yeah, case, what he went through. And
basically, they ruin people's career. And then he got ganged by
Congress on top of it, helping to ruin his reputation by some
people he was trying to do the right thing, as I understand, in
his command.
But you want to encourage whistleblowers, but again, there
has to be some equity in the process for those who come as
false accusers. I'm not sure how you craft that. Would you
think that something like that would be beneficial?
Mr. Fine. I think the law, as it exists, is appropriate,
that is, as long as someone makes a good-faith belief, a good
faith--has a good-faith belief that the allegations they
brought forward are accurate and true. We should not hold them
accountable.
If we then determine, well, they weren't accurate or the
subject did not reprise against them, because I think that
would have an unbelievable chilling effect on other people.
Mr. Mica. Okay. And then we have Ms. Smithberger. And I saw
in some of your testimony that your group pointed out that
DOD's IG dismissal rate of 84.6 percent for whistleblower
reprisal cases is more than double of that of inspectors
general for the services for the same type of cases.
Can you elaborate on that? That does seem like a very high
rate, and what--what else have you found--how--what would you
attribute that to? Just--it does stand out. It's very----
Ms. Smithberger. Yeah. And we think that there needs to be
more evaluation as to why that's occurring, but our concern is
that it creates the appearance that DOD IG has a higher--is
more likely to dismiss a case than to investigate a case.
Mr. Mica. And did you--has your review found that to be the
case or is----
Ms. Smithberger. We have. So specifically--and all of this
data comes from DOD IG's semiannual reports to Congress. We
have found that service IGs dismissed during the past 4 years--
or I'm sorry, they investigated 53 percent of the cases. DOD--
that they received. DOD IG investigated 8.2 percent. The
services substantiated 5.9 percent, and DOD IG substantiated 1
percent, and these are all military whistleblowers.
Mr. Mica. And now, I think we've got--Mr. Fine, looks a
little bit anxious here to respond. So could we hear your
response?
Mr. Fine. Thank you for that opportunity. This is our data,
and I think that's not an accurate read of that data because
within the data, that is counting as dismissal if we refer it
to the service IG. That's not a dismissal. That is referring
it. So the actual cases that we retain is a much different
level. Having said that, I do think the data is important for
the report and for----
Mr. Mica. You say that's not accurate.
Mr. Fine. We don't substantiate this.
Mr. Mica. Could you give us, to the committee for the
record, staff--we ask questions after this, but that would be
something I'd like to see in the record.
Mr. Fine. Absolutely.
Mr. Mica. And also for the record, I'd like to see the
number of cases, again, maybe historically the last few years
that I asked the question about earlier and then also the
staffing rates. And finally, is there a budget constraint or
something to pursue your work or are you adequately funded?
Mr. Fine. We're not adequately funded. Thank you for that
question. We'd be happy to provide the information that you
requested and we're glad to do so in response.
Mr. Mica. Finally, since my time is expired, you could put
in the response the substantiation of the need for additional
resources.
Mr. Fine. Okay. All right. Fine. I'll put that in as well.
Mr. Mica. Mr. Chairman, I'm pleased to yield back.
Mr. DeSantis. The gentleman yields back.
I'd like to thank all of our witnesses for taking the time
to appear before us today. There is no further business.
Without objection, the subcommittee stands adjourned.
[Whereupon, at 3:31 p.m., the subcommittee was adjourned.]
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