When Ilana Greenstein blew the whistle on mismanagement at the CIA, she tried to follow proper procedures.
She told her supervisors that she thought the agency had bungled its spy operations in Baghdad. Then she wrote a letter to the director of the agency.
But the reaction from the intelligence agency she trusted was to suspend her clearance and order her to turn over her personal computers. The CIA then tried to get the Justice Department to open a criminal investigation of her.
And the agency’s inspector general’s office, which is supposed to investigate whistle-blower retaliation, never responded to her complaint.
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Based on her experience in 2007, Greenstein is not surprised that many CIA employees did little to raise alarms when the nation’s premier spy agency was torturing terrorism suspects and detaining them without legal justification. She and other whistle-blowers say the reason is obvious.
“No one can trust the system,” said Greenstein, now a Washington attorney. “I trusted it and I was naive.”
Since the terrorist attacks of Sept. 11, 2001, defense and intelligence whistle-blowers such as Greenstein have served as America’s conscience in the war on terrorism. Their assertions go to the heart of government waste, misconduct and overreach: defective military equipment, prisoner abuse at Abu Ghraib, surveillance of Americans.
Yet the legal system that was set up to protect these employees has repeatedly failed those with the highest-profile claims. Many of them say they are punished rather than thanked.
More than 8,700 defense and intelligence employees and contractors have filed retaliation claims with the Pentagon inspector general since the 9/11 attacks, with the number increasing virtually every year, according to a McClatchy analysis.
While President Obama expanded protections for whistle-blowers, his changes didn’t go far enough to address the holes in an unwieldy bureaucracy for those who claim retaliation, McClatchy found.
The obstacles for defense and intelligence whistle-blowers in such cases include:
▪ A battle between investigators and managers at the Pentagon inspector general’s office over the handling of reprisal claims, culminating in accusations that findings were intentionally altered in ways detrimental to whistle-blowers.
▪ An entrenched and pervasive anti-whistle-blower attitude, especially when the claims involve high-level officials or significant or embarrassing wrongdoing.
▪ Delays that discourage even the most persistent whistle-blowers.
“Only someone with a martyr complex would submit themselves to this system,” said Tom Devine, legal director of the Government Accountability Project, an advocacy group that’s helped whistle-blowers since 1977. “We advise intelligence whistle-blowers to stay away from established channels to defend against retaliation. In our experience they’ve been a Trojan horse, a trap that ends up sucking the whistleblower into a long-term process that predictably ends up with the whistleblower as the target.”
The president rejected such criticism of the whistle-blowing system after National Security Agency contractor Edward Snowden referred to the prosecution of an NSA whistle-blower as one reason he decided to go to the news media about the spy agency’s collection of Americans’ data.
“I signed an executive order well before Mr. Snowden leaked this information that provided whistleblower protection to the intelligence community for the first time,” the president said after the leaks in June 2013. “So there were other avenues available for somebody whose conscience was stirred and thought that they needed to question government actions.”
Officials with inspectors general’s offices say they investigated reprisal complaints before the expanded protections. Employees, however, often can’t prove they were retaliated against under the terms outlined in whistleblower laws, they said.
Only four claims upheld
In many cases, employers demonstrate that they took action against an employee for performance-related reasons, not in retaliation for whistle-blowing. In just over a decade, five intelligence inspectors general have substantiated only four retaliation claims among them, according to their own estimates.
“There’s a view that these whistleblower reprisal cases are all these big, huge programmatic issues, when in reality many of them are about things like performance and promotions,” said James A. Protin, counsel to the NSA inspector general. “There are a lot of reasons that action may have been taken that had nothing to do with them talking to the IG.”
Gaps remain in legal protections despite the president’s revisions. For example, intelligence contractors who are fired still can’t claim retaliation.
“People that the public might perceive as being protected under whistle-blowing laws sometimes are not,” said Nilgun Tolek, the director of whistleblower reprisal investigations at the Pentagon inspector general’s office. “The system is a patchwork of different laws. … Not all complaints meet the criteria necessary for coverage and investigation.”
But the obstacles whistle-blowers face are more than legal technicalities, McClatchy’s inquiry found.
At the Pentagon inspector general’s office, its own investigators accused the office of improperly dismissing, watering down or stalling conclusions in retaliation inquiries, according to five federal officials who are familiar with the allegations and spoke on the condition of anonymity because of the matter’s sensitivity.
Cases that are controversial, complicated or involve high-level officials are especially prone to being altered in a way that’s unfavorable to whistle-blowers, the federal officials said.
For example, managers and the top lawyer for the office are accused of reversing findings that Mike Helms, an Army intelligence officer, was retaliated against for blowing the whistle in 2004 on inadequate care for military civilians wounded in combat.
Pentagon inspector general managers also are accused of impeding an investigation into claims by a staff judge advocate in Quantico, Va. Maj. James Weirick accused the Marine Corps of interfering with the prosecution of four scout snipers who were captured on video urinating on dead Taliban fighters in Afghanistan.
The officials said the inspector general’s office sought for years to avoid investigating claims of retaliation for legal reasons, rather than determining whether cases merited investigation in the first place.
“Managers make the narrative what they want it to be,” said one official. “They cherry-pick the evidence they deem as ‘relevant.’”
According to the McClatchy analysis, less than 20 percent of retaliation claims since 9/11 have been investigated. The rest were thrown out after a preliminary analysis or no investigation.
Only 4 percent have been substantiated. In private industry, the substantiation rate is said to be three times higher.