Innocent Until Investigated

By Commander J. Michael Dahm, U.S. Navy

The issue of whistleblower reprisals is politically charged, and the military is under significant pressure to ensure protection against such retaliation. In light of that obligation, however, it is equally important that the investigative process be timely and just.

Allegations and Reasonable Belief

When guest instructing at NTA, Commander Green believed that the enlisted instructors were unduly harsh and disrespectful to officer students. 4 During one course, he presented his allegations directly to the class, telling them that they were being mistreated and that they were not required to respect the authority of the enlisted instructors. 5 In addition—and this is key—he complained about the “verbal maltreatment and disrespect” of the students to some colleagues at his parent command as well as a flag officer, according to the IG report. 6

After receiving reports of Green’s interactions with the students, the CO and XO of NTA decided that he had undermined the training environment. As XO, Commander White called Green’s unit and asked that he not return because of his conduct. Later, within days of White making the call, NTA became aware of Green’s allegations outside of NTA. 7

One year later, Green went to an IG and claimed that NTA, specifically the XO, had “blackballed” him in retaliation for whistleblowing about wrongdoing at the training command, damaging his career. 8 Arguably, this is the sort of allegation that merits an investigation. He believed he had suffered an adverse personnel action. Was it because of his conduct or in reprisal for legitimate whistleblowing?

Evidence supplied by Green was the sole basis for the IG’s preliminary inquiry, which is typical. The IG established that he had made a “protected communication,” thereby imparting whistleblower status. His allegations of “verbal maltreatment and disrespect” implied a violation of the Navy’s hazing regulation, but there had been no direct allegations of such a violation. Regardless, under whistleblower protection law, the IG only needs to assess whether a claimant “reasonably believes” he is alleging a violation of law or regulation. 9 No actual wrongdoing is necessary for whistleblowing to occur. The preliminary inquiry also concluded that “uninviting” Green back to NTA was done in reprisal. 10 All that remained was to assign motive and blame. While that may sound presumptuous, military whistleblower-reprisal investigations are skewed toward substantiating allegations, not exonerating those accused.

Civil Rights and Reprisals

More familiar provisions of the 1964 Civil Rights Act prohibit discrimination based on race, religion, or sex. A lesser-known feature also prevents retaliation—a form of discrimination—for whistleblowing. 11 This is significant because the Civil Rights Act presumes that targets of discrimination are wholly disadvantaged. Therefore, an allegation, based on a “preponderance of evidence,” is accepted as a prima facie claim—the allegation is assumed to be correct unless proven otherwise.

The burden of proof in prima facie cases necessarily shifts from the claimant to the subject of the investigation—guilt is presumed; now innocence must be proved. The subject must establish that personnel actions were taken for non-retaliatory reasons by the higher legal bar of “clear and convincing evidence.” 12 This burden-shifting may be feasible in transparent hearings before a court or review board. However, the secrecy of an IG investigation creates an unjust situation for military subjects.

The Naval IG is the confidential agent of the Secretary of the Navy, and its investigative proceedings are strictly exempt from disclosure and scrutiny. 13 When White was notified that he was the subject of an investigation and interviewed—almost two years after the events in question—he did not know any of the details of the alleged whistleblowing, and was not allowed to review the evidence and testimony that the IG had compiled.

Commander White was also required to sign a confidentiality agreement affirming that he would not discuss the investigation with anyone, including his former CO. 14 At that point, both officers had transferred from NTA. White, effectively muzzled, could not seek out witnesses to speak in his defense. While this confidentiality is ostensibly employed to protect the whistleblower, those measures combined with the requirement to overcome a prima facie claim create a paradox that flies in the face of what would otherwise be considered a fair proceeding.

Politics and Substantiation

Protecting those who speak out against perceived wrongdoing is a legal necessity, but it is important to understand just how much political momentum there is behind the whistleblower’s protection. In a rare example of bipartisan cooperation, Senator Chuck Grassley (R-IA) inaugurated a Whistleblower Protection Caucus in early 2015. 15 Grassley and other senators in the caucus have endorsed a “National Whistleblower Day,” “celebrating a more open and just society recognizing the courage of whistlblowers.” 16 Well-organized advocacy groups assist Congress in updating whistleblower protection legislation, in many cases to overcome court rulings that have set back their cause. 17 The political theater and amendments to military and civilian legislation have afforded every possible advantage to purported victims of whistleblower reprisal. 18 Meanwhile, there is nothing in the law to ensure fairness for military personnel who may be unjustly accused of committing a reprisal.

For all the political hyperbole, military whistleblowers may not be as victimized as some claim. There does not appear to be an epidemic of reprisals among the 2 million active-duty and reserve military personnel. According to the DOD IG’s reports to Congress, between 2012 and 2015, DOD and military service IGs closed 2,039 military whistleblower-reprisal complaints. Of those, 60 percent were dismissed or withdrawn. Of the cases investigated, 91 were substantiated—an 11.3 percent “substantiated rate.” Overall, in four years, only 4.5 percent of all military whistleblower-reprisal allegations were substantiated. Said another way, 95.5 percent of the allegations were either false or could not be substantiated. 19 (See Table 1.)

In light of the low “substantiated rate,” a significant issue then becomes the unreasonable amount of time required to close these investigations. By delaying resolution for years, the investigations effectively become a punishment for hundreds of individuals who have done nothing wrong. For example, an officer under investigation will not be promoted, will not be selected by a screening board, and cannot retire.

In its 2012 report on the military’s whistleblower protection program, Congress’ Government Accountability Office (GAO) noted that military investigations routinely exceeded the 180 days by which they should be completed. The report observed, “without timely resolutions, the reliability of evidence could suffer, and the careers of both the complainants and subjects could be negatively impacted.” 20 In 2015 the GAO revisited the DOD’s progress on whistleblower protection and compliance in meeting the 180-day limit. The GAO reported that the average time to close a reprisal case in 2013 and 2014 was 526 days. Commander White’s investigation was closed in 2014 at 969 days. That was still six months short of the maximum number of days for closing a Naval IG reprisal investigation during the two-year period. 21 (See Table 2.)

Presidential Powers and Promotions

As Schoolhouse Rock reminds us, Congress passes bills, and those bills become laws when the President signs the legislation. 22 In 1980 President Jimmy Carter signed the Defense Officer Personnel Management Act, effectively standardizing military personnel practices. 23 In most whistleblower cases, this law would not be a factor, but recall that Commander White came under investigation after being Senate-confirmed for promotion to captain. The delay of his promotion merits its own inquiry. The most egregious action he faced in trying to escape the effects of the lengthy IG investigation involved legal limits on the delay of an officer’s promotion. 24 With the investigation dragging on into its third year, White protested the delay of his promotion beyond the 18-month limit set forth in law and Navy regulations. 25

Navy officials rejected White’s request for relief, citing court cases that found the law does not provide for “automatic appointments.” 26 That is true. Officer promotions require an affirmative act—the delivery of the appointment. 27 The Navy’s response to a congressional inquiry went on to say: “Congress cannot provide for automatic appointments in a statute because Congress does not have the authority to require the President, or those acting on behalf of the President, to exercise his appointment power.” 28

Objectively, that is also a true statement. The President alone appoints “officers of the United States”—officers requiring Senate confirmation. It is a constitutional power with which neither the legislative nor the judicial branches may interfere. 29 This is where the Navy’s argument turns back on itself and sets a course for dangerous waters.

Presidential powers specified in Article II of the Constitution, such as signing a bill into law or appointing an officer of the United States, cannot be delegated. 30 But, as a practical matter, the President cannot personally effect every military promotion. Therefore, the law signed by the President is his expressed direction about how to promote thousands of officers each year. The 18-month provision is a specific limit on the military secretaries’ discretion to delay an officer’s promotion on the President’s behalf. The President may choose to exercise his constitutional privilege to not follow a law limiting his appointment power, but in the absence of direction contravening such legislation, the military should follow those laws he has signed.

Navy officials usurped the President’s constitutional power and held up what they contend is a loophole that nullifies the one legal provision intended protect military officers against open-ended investigations. With no procedures in place to appeal to the Secretary of Defense or the President, White’s career would continue its downward spiral without a safety net.

Absence of Due Process

Assertions that the military chain of command could not properly investigate and prosecute allegations of sexual assault led to a number of reforms contained in the Fiscal Year 2014 National Defense Authorization Act (NDAA 2014). This legislation also impacted the law on whistleblower protection. Essentially, Congress decided that the military chain of command could not be trusted to do the right thing in either sexual assault or whistleblower reprisal cases.

Commander White’s case was the first Navy whistleblower-reprisal investigation closed following the changes outlined in NDAA 2014. When the Naval IG finally completed its investigation, the results were not forwarded to White’s commanding officer for review and action. Per the new law, the IG’s findings went directly to the Secretary of the Navy, who had 30 days to determine whether a reprisal had taken place. 31 Within a month, with no input from White, the Secretary issued a letter affirming the investigative report’s finding of “substantiated” and directed disciplinary action against the officer. 32 White was devastated. In three years, he had never had the opportunity to review the IG’s evidence or make a statement in his own defense. The law on military whistleblower reprisals does not require that the accused be given any voice. In the absence of any due process for White, the IG’s cloistered proceedings and presumption of guilt had proven difficult to overcome.

White was able to wrest a measure of truth from the IG through a number of Freedom of Information Act requests. The Naval IG’s responses revealed that the investigation contained a mind-numbingly extensive list of falsehoods, errors, and flawed logic that would take several additional pages to explain in detail. Objectively, this unbalanced investigation, which had been accepted by Navy leadership on its face, was crafted to support the allegations established in the IG’s preliminary inquiry. Over the three years it took to manufacture the case against White, the IG investigator reviewed a mere 20 pages of documents and interviewed six individuals. Interestingly, the inquest had focused solely on the XO of NTA. White’s CO at that time had never been contacted by the IG. How the report had survived the required DOD IG oversight review cannot be explained. It is worth noting that the GAO has long criticized the oversight of military whistleblower-reprisal investigations. 33 However, examining myriad legal points and proving that the investigation was flawed is not necessary, as this would have little bearing on the consideration that should be given to the policies and politics surrounding military whistleblower-reprisal investigations.

Ultimately, Commander Green retired two years before the investigation closed and realized no benefit from the IG’s finding. A separate inquiry into the allegations of hazing at NTA was dismissed out of hand by an IG not involved in the whistleblower-reprisal investigation. 34 Commander White, for his part, finally had the opportunity to pen a lengthy defense for his promotion review package, which included a letter from his former NTA commanding officer. The Secretary of the Navy authorized White’s promotion to captain, retroactive to his original promotion date three years earlier. But the lengthy promotion delay had taken its toll, and any opportunity for command had passed. His career had been destroyed, and he had lost faith in the service to which he had dedicated his life.

The political enthusiasm for protecting whistleblowers and rooting out government corruption may not approach the fervor over containing the threat from saboteurs within the Japanese-American population during World War II or the hunt for communist infiltrators in the U.S. government during the 1950s. But in politically charged atmospheres such as these, the scales of justice are often tipped too far in one direction by otherwise well-intentioned politicians. In the seminal Supreme Court opinion on legal due process born out of the McCarthy era, Justice Felix Frankfurter wrote for the majority:

This Court is not alone in recognizing that the right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society. 35

Congress and the military would do well to heed the cautions of that time to ensure that in our enthusiastic pursuit of justice for some, we do not abandon our principles of fairness for all.



1. DOD IG, “Semiannual Report to Congress,” FY2012–15, www.dodig.mil/pubs/sar.cfm .

2. “Protected Communications; Prohibition of Retaliatory Personnel Actions,” 10 U.S. Code § 1034.

3. Naval Inspector General (IG), “Military Whistleblower Reprisal Investigation Navy Hotline Complaint (201102849),” Final Report.

4. [CDR Green] e-mail, 1 June 2010.

5. Naval IG, Tab 25, 2–3.

6. Ibid., 6–8.

7. Ibid., Tab 25, 7.

8. Ibid., Tab 1, 1–3.

9. 10 U.S.C. § 1034(c)(2).

10. Commander, Navy Reserve Forces Command, “Preliminary Report of Reprisal Allegations, Navy Hotline Number 201102849,” 19 September 2011.

11. “Civil Rights Act: Other Unlawful Employment Practices,” 42 U.S.C. § 2000e–3(a).

12. “Investigation of Prohibited Personnel Practices; Corrective Action,” 5 U.S.C. § 1214(b)(4)(B). See also Jon Shimabukuro et al., Whistleblower Protections Under Federal Law: An Overview , Congressional Research Service, 13 September 2012, 20.

13. “Mission and Functions of the Naval Inspector General,” SECNAVINST 5430.57G, Para 9.

14. Commander, Navy Reserve Forces Command IG. “Rights Warning [CDR White],” 14 March 2012.

15. Senator Chuck Grassley, “Bipartisan Group of Senators Launches Whistleblower Protection Caucus,” Press Release, 25 February 2015.

16. See www.nationalwhistleblowerday.org

17. See, for example, Government Accountability Project at www.whistleblowers.org or Project on Government Oversight at www.pogo.org

18. See, for example, amendments in Pub. L. 101–12, §?4(a); Pub. L. 103–337, §?531; Pub. L. 103–424, §?5; Pub. L. 105–261, §?933; Pub. L. 106–398, §?1; Pub. L. 112–199, §?101, 103, 104 & 112; and Pub. L. 113–66, §?1714.

19. DOD IG, “Semiannual Report to Congress,” FY2012–15.

20. GAO, Whistleblower Protection: Actions Needed to Improve DOD’s Military Whistleblower Reprisal Program (GAO-12-362), February 2012, 13.

21. GAO, Whistleblower Protection: DOD Needs to Enhance Oversight of Military Whistleblower Reprisal Investigations (GAO-15-477). May 2015, 16.

22. Dave Firshberg, “I’m Just a Bill,” Schoolhouse Rock!

23. “Defense Officer Personnel Management Act.” Pub.L. 96–513.

24. “Promotions: How Made.” 10 U.S.C. § 624(d)(4).

25. [CDR White] letter to SECNAV, 1 February 2014, citing SECNAVINST 1420.1B, Para 23.d.

26. See Dysart v. US , 369 F.3d 1303 (Fed. Cir. 2004) and Lewis v. US , 458 F.3d 1372 (Fed. Cir. 2006).

27. Marbury v. Madison , 5 U.S. 137, 159 (1803).

28. Naval Personnel Command, ltr ser 00LCA/14U003553B to Sen. Carl Levin, 19 Sep 2014.

29. U.S. Constitution Article 2, Section 2, Clause 2.

30. 7 Op. Attorney General, “Relation of the President to the Executive Departments,” 453, 465 (1855). See also, 29 Op O.L.C., “Assignment of Certain Functions Related to Military Appointments,” 134 (2005).

31. “National Defense Authorization Act for Fiscal Year 2014,” Pub. L. 113–66, §?1714(e)(2).

32. SECNAV Memorandum, “Naval Inspector General Substantiated Reprisal Investigation Case: 201102849,” 1 May 2014.

33. GAO-15-477, May 2015, 1.

34. Commander, Naval Education and Training Command, ltr ser N00GI/0002, 16 January 2013.

35. Joint Anti-Fascist Comm. v. McGrath , 341 U.S. 123, 168 (1951).


Commander Dahm is a career naval intelligence officer with broad experience as an analyst and policy adviser. He is currently serving as the Senior Naval Intelligence Officer for China at the Office of Naval Intelligence. He was not a party to any of the legal proceedings researched for this case study.

 

 

 
 

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