Senator Begins Inquiry into Navy Admiral’s Whistleblower Retaliation

*This article was first published at www.pogo.org

Senator Begins Inquiry into Navy Admiral’s Whistleblower Retaliation

Photograph of Senator McCaskill during hearing.
(Photo by Flickr user Senator Claire McCaskill used with permission via Creative Commons.)

One of the most significant failures of current military whistleblower protections is how infrequently those who retaliate against whistleblowers are held accountable. Last week The Washington Post reported on the latest example, Navy Rear Admiral Brian L. Losey. The Department of Defense Inspector General (DoD IG) found he had retaliated against staff members he suspected were whistleblowers. Now Senator Claire McCaskill (D-MO) is asking the Navy to explain why it has failed to hold Rear Admiral Losey accountable.

As the Post recounts, the reprisals came after an anonymous complaint alleging Rear Admiral Losey had improperly used taxpayer funds to pay for a plane ticket for one of his family members. The allegation was dismissed—he had paid for the ticket himself. But “enraged by what he saw as an act of disloyalty, the admiral became determined to find out who had reported him,” and drew up an “enemies list.” One witness told the DoD IG that Losey vowed to “cut the head off this snake and we’ll end this.”

It appeared Losey also wanted to discourage other whistleblowers from coming forward. “If you continue to undermine my authority as a commander, I’m going to bury each one of them,” one witness alleged Losey told his staff. “I’m going to come after them, and I’m going to [make] it very unpleasant.”

Altogether, the IG concluded that Losey had illegally retaliated against whistleblowers in three of the five cases it investigated. The Navy disagreed with the IG’s findings, and no disciplinary actions were taken.

“Failure to hold individuals accountable for taking actions against whistleblowers discourages others from coming forward, which is unacceptable,” Senator McCaskill wrote in her letter to Navy Secretary Ray Mabus.

As the Post pointed out, it is extremely rare for DoD IG to substantiate whistleblower reprisal complaints. In one year DoD IG closed 1,196 whistleblower cases, only substantiating 3 percent. A 2012 report by the Government Accountability Office (GAO) found that in the rare circumstance a military whistleblower case was substantiated, only 19 percent applied to have their records corrected.

Graph of Whistleblower Reprisal Numbers ending March 31, 2015

Source: The Washington Post analysis of DoD IG Semiannual Reports (Available here and here)

One reason senior officials are infrequently held accountable for whistleblower retaliation is the DoD IG’s refusal to make most substantiated reports of misconduct by senior officials and officers public. Representative Jackie Speier (D-CA) added an amendment to the National Defense Authorization Act for FY 2015 to require the DoD IG to release these reports, but it was removed in conference.

In the case of Rear Admiral Losey, DoD IG had not responded to The Washington Post’s Freedom of Information Act request for the report. Instead, the paper received copies of the report “from sources upset with the Navy’s decision not to take action against Losey.”

As we’ve written before, current protections for military whistleblowers are woefully insufficient. Whistleblowers are pivotal to Congress’s ability to conduct its constitutional oversight duties and to the effective operations of our government. For credible protections for military whistleblowers, Congress should pass the Legal Justice for Servicemembers Act, and both the Defense Department and Congress must step up to hold officials accountable for illegally retaliating against whistleblowers.

Photograph of Mandy Smithberger

By: Mandy Smithberger
Director, CDI Straus Military Reform Project, POGOMandy Smithberger is the Director of the Straus Military Reform Project at the Center for Defense Information at the Project On Government Oversight.

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UN Whistleblower Report

On October 22nd the UN Special Rapporteur David Kaye released a whistleblower-friendly report, “Promotion and Protection of the Right to Freedom of Opinion and Expression.”

Human Rights Watch compiled the following report materials, including a video with  responses from whistleblowers Edward Snowden and Kathryn Bolkovac –

Video: https://www.youtube.com/watch?v=9cPeQDyhICk

Press release: https://www.hrw.org/news/2015/10/22/un-report-protect-public-disclosures-wrongdoing

David Kaye report: http://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/ProtectionOfSources.aspx

 

 

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FEW-LEF Requests USDA Review

Posted by: Michael McCray

On September 15th, Federally Employed Women Legal Education Fund (FEW-LEF), a member of the Make It Safe Coalition (MISC), requested an EEOC Program Review of USDA following findings by U.S. Special Counsel Carolyn Lerner about deficiencies in the Civil Rights Office at the U.S. Department of Agriculture (USDA).

The Special Counsel’s letter to President Barack Obama states that, despite recent improvements in processing EEO complaints, there remain EEO complainants at USDA who have never received due process for their grievances.

Michael McCray alleges that there are over 3,000 unprocessed EEO claims at USDA in a Class Action complaint. Ron Cotten, President of the USDA Coalition of Minority Employees, states the true number may be 7,000 unprocessed / mishandled EEO complaints at the agency. USDA has a long history of severe Civil Rights violations dating back to the Reagan Administration.

FEW-LEFs full request can be found here – USDA Program Review

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Justice Department IG Sets Significant Transparency Precedent

GAP and other leading members of the Make It Safe Coalition are applauding a recent policy by the Department of Justice Office of Inspector General (OIG) to post investigative summaries publically onto its website, an action that the coalition has advocated for over the years.

Today, GAP, Project On Government Oversight, Public Citizen and Union of Concerned Scientists sent a letter thanking Justice Department Inspector General Michael Horowitz, who also chairs the Council of the Inspectors General on Integrity and Efficiency, for setting this significant precedent for other OIGs –

In our experience, the primary motivation for whistleblowers to speak out is the hope that their disclosures will make a difference. Too often due to lack of communication by the OIG, federal employees feel that their whistleblowing may be irrelevant, even if they have had an impact. Worse, whistleblowers often feel that their disclosures have been ignored, even if the OIG has conducted an investigation and review.

Your leadership to publicly post investigative summaries by and large addresses these frustrations. It allows whistleblowers to know both how their disclosures were handled and what was accomplished through their courage to report government illegality, waste, fraud, abuse or public health or safety threats.

The groups also called on Mr. Horowitz to go a step further and use his office’s discretionary authority to post full versions of reports whenever possible, making redactions only if they are legitimate and legally required.

The full letter can be viewed here: DOJ OIG MISC Letter 6.26.15

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OSC Finds USDA Violations

On June 22nd Matthew Fogg, President of the Federally Employed Women Legal Education Fund (FEW-LEF), sent letters to the USDA and EEOC regarding the Special Counsel’s findings in her May 18, 2015 letter to President Obama concerning civil rights and EEO violations at USDA.

The letters state –

I am writing you on behalf of MISC coalition members who have contacted me due to their concerns about the findings in the May 18, 2015 letter from The Honorable Carolyn Lerner, Special Counsel to President Barack Obama concerning the employees of USDA’s Office of the Assistant Secretary for Civil Rights (OASCR). Her findings reveal improperly or unresolved EEO grievances and civil rights violations by the USDA.

Specifically, the Special Counsel found that almost 50 percent of the civil rights complaints filed against high level USDA officials were not acted on in the legally required time frame and although the USDA took corrective action that appear to resolve the wrongdoing, these actions do not provide redress for the aggrieved employees (emphasis added). The Special Counsel recommended that USDA consider reviewing cases to determine whether harm resulted from delays and how affected employees can be made whole.

The letters can be found in full below –

FEW-LEF (MISC) Letter to USDA

FEW-LEF (MISC) Letter to EEOC

 

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Guest Blog: FL Corrections Department Abuses

*The views expressed in this article represent the author’s and not those of the Make It Safe Coalition

June 23, 2012 – Darren Rainey’s life was ended by sadistic guards who locked him in a scalding hot shower and left him begging for his life as he boiled to death. His murder set in motion a series of events that are still playing out today. Initially classified as “an in custody death from natural causes,” Darren’s death was handled in the typical strategy the Florida Department of Corrections employed on numerous occasions – cover it up by any means possible – falsified reports and layers of bureaucratic red tape. Guards even went so far as to sabotage the video from the fixed wing camera. A supposed “malfunction” resulted in disrupted footage minutes after Rainey was locked in the shower stall – Richard Nixon would be proud.

The FL DOC cover-up had help from unlikely sources: The Miami-Dade Police Department’s Homicide Division and the Miami Medical Examiner’s Office. In a third-rate investigation, that apparently found nothing unusual about a man whose skin had peeled away from 90% of his body, detectives decided an in-depth inquiry was unnecessary. No inmates who were witnesses to Rainey’s killing were interviewed.

The Miami Medical Examiner did an autopsy, the results of which are still “pending” three years after Rainey’s death. Their excuse was, and still is, they are waiting for detectives to decide if there was a homicide. Police meanwhile point to the ME to finalize the autopsy so they can wrap up their investigation. The net result in this game of hot potato: No charges have been filed against the officers who put Rainey in the shower to die. Nor have any charges been filed against prison administrators who colluded to cover up the crime.

So the fix was on – the cover-up securely in place. Business as usual in the DOC. Except for two men – Harold Hempstead and me. He was housed together with Rainey in the psychiatric wing known as J3 – I once had an office there. Still suffering from PTSD, he heard Rainey’s anguished cries from his cell for well over an hour. Helplessly standing by and profoundly affected, Harold – a deeply religious man – knew he had no choice but to encourage the DOC to reopen the investigation. His sister Windy told me he had filed over 90 grievances to no avail.

Refusing to give up, Harold directed Windy to contact the Miami Herald. On May 18, 2014, reporter Julie Brown filed the first of what would be over 70 stories detailing the astonishing corruption, secrecy, and brutality within the FL DOC. I give tremendous credit to Harold Hempstead for coming forward at great risk to his life – no idle claim given the number of inmates who have been documented by the Herald as being killed by guards in retaliation for finger pointing.

After reading the story that Sunday morning, I contacted Julie Brown to corroborate Hempstead’s account. On May 20th, I stepped forward publicly in Julie’s second story detailing the abuses at the Dade Correctional Institution. How much I propelled the issue forward is anybody’s guess. What was certain was that it wasn’t another brutal account from a so-called “criminal” – destined to fizzle out like so many other prison news stories I had come across in my research. As a mental health professional who had worked in the Transitional Care Unit, I lent immediate credibility to Harold’s story.

I had been far from idle in the two years before the Herald story broke. I first heard the details of Rainey’s murder two days after it had happened from my former coworker Carmen. Her vivid description and our conversation would become the basis for the first chapter of my book called, Getting Away With Murder. Initially, I tried to get justice for Darren Rainey by exhausting every logical avenue I could think of – including a sit down interview with two FBI agents. Even after I gave them the stunning details of Rainey’s killing, they decided they didn’t have enough to do an investigation! Later, I filed a complaint with the Department of Justice specifying a host of abuses that occurred at TCU – beatings, torture, and the murder of Rainey.

Within days of the second Miami Herald story, I did a slew of local television and radio shows. I was contacted by numerous reporters for my perspective. I started getting calls and emails from those with relatives on the inside, desperate for any guidance I could provide to help keep their loved ones safe. With each new contact, I was hearing stories of abuse and retaliation that made the Herald stories seem like the tip of the iceberg.

Even while DOC Secretary Michael Crews was touting a “no tolerance” stance against inmate abuse, the killings continued. In October, I was invited to Tallahassee by civil rights attorneys, Parks & Crump, to speak at a press conference regarding the suspicious death of Latandra Ellington. She complained to her aunt she was afraid a guard would kill her. Latandra was put into solitary confinement for her protection – the next day she turned up dead. An autopsy paid for by her family found abdominal trauma consistent with being punched or kicked in the stomach.

Weeks later, I had my official book launch in November at Books & Books in Coral Gables, Florida. In attendance were three women I had spoken to previously about their sons who were incarcerated in Florida prisons. Two had sons with severe mental illness whose treatment was inconsistent and substandard – unfortunately a common theme. The third, Ada, had told me how her son was assassinated by members of a prison gang. She refused to accept the DOC’s version of his death and was seeking answers when she died unexpectedly. Ada’s energy, intelligence, and strength will be greatly missed.

Late December, I received an invitation to present before the Senate Criminal Justice Committee the first week of January, 2015. I spoke with the chairman, Senator Greg Evers, for an hour before the hearing. Evers impressed me with his earnestness and desire to deal head-on with prison brutality issues. To his credit, he later visited prisons unannounced – I was impressed. Even more so when the committee put forth a strong prison reform bill with an independent oversight committee some three weeks after the hearing. Unfortunately, the House Criminal Justice Subcommittee followed with a gutted version. The House and Senate could not agree on what provisions should go into a final version so the prison reform bill remains in limbo.

Meanwhile, failing to placate his boss Governor Scott, DOC Secretary Crews “resigned” and later complained, “I guess you can say they were more concerned with the crafting and writing of news releases and that had little to do with the reality of what needed to be done to keep the institutions safe and secure.” In January, Gov. Scott tapped former Highway Patrol Director Julie Jones as his fourth prison secretary in four years. After initially making strong statements about accountability and transparency, Jones has backpedaled by silencing DOC investigators who spoke to the Miami Herald regarding cases that had been suspiciously quashed by Inspector General Jeffery Beasley. Jones’s attention seems focused on hiring more guards and getting funding to fix prison buildings. She continues to minimize the number one issue within the FL DOC: The culture of brutality and secrecy.

Today, June 23, 2015, marks the three year anniversary of Darren Rainey’s murder. While justice for him and his family has proved elusive, his death has not been meaningless. I believe when all has been said and done, we will point to Rainey’s death as the turning point in reversing the brutality that still characterizes the FL DOC. I will continue to publicize the Florida prison scandal on a national level. People need to know that in comparison, prison brutality far exceeds the police brutality we hear about on a weekly basis. Simply put, people with cell phones are not roaming around prison grounds taking video of abuses – it’s a felony to take a cell phone into prison.

A major focus of my work as a psychotherapist and human rights activist, is to advance the idea that the most cost effective means to treat mental illness is to catch it early. I worked in a middle school setting counseling at risk children. Many would have ended up in prison if not for a program that provided counseling, psych medication, and healthy boundaries provided by a low teacher to student ratio. Sadly, this program was disbanded for lack of money – no more safety net for mentally ill children in Miami-Dade County.

The criminalization of mental illness is a fact for many who find themselves in prison for no more than behavior consistent with their psychiatric diagnoses. Accordingly, it is essential to fund community mental health treatment centers as an alternative to the far more expensive and often inhumane prison alternative. Unfortunately, prisons are now the single largest providers of mental health services nationwide. Spend some money early or spend vast sums later in a last ditch effort in prisons poorly equipped to treat the mentally ill – the choice is ours.

About the Author
George Mallinckrodt worked for nearly three years as a psychotherapist in a Florida state prison psychiatric ward. Guards regularly tormented, beat, and tortured patients on his caseload. George was fired for his refusal to stay silent about a beating and other abuses. Mallinckrodt is a full-time human rights activist and frequent contributor to news stories regarding the treatment of the mentally ill in prison.

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