For more than two years, cashiered Pentagon inspector general employee John Crane has awaited judgment for his whistleblower case accusing his former bosses of burying important disclosures that should have been investigated by the Office of Special Counsel.
On Oct. 11, that office, which is under acting leadership, sent him a letter that simultaneously confirmed the seriousness of his case while declaring itself powerless to pursue it further—unless other government entities, such as Congress, intercede.
To many in the whistleblower advocacy community, the case raised a unique jurisdictional issue and OSC's action may reveal a gap in whistleblower protection law.
Crane, as the letter iterated, had filed a series of complaints charging that his superiors in the Defense Department’s IG office had quashed critical probes, including one related to the Defense Department and CIA’s possible mishandling of classified information while interacting with Hollywood producers of the film “Zero Dark Thirty.”
The independent OSC processed Crane’s case, noting that Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, had deemed Crane’s charges as worthy of investigation. Central to Crane’s complaint was his contention, in the “Zero Dark Thirty” matter, that senior officials in the IG’s office had intervened in an investigation to shield then Defense Secretary Leon Panetta from scrutiny.
Because of the awkwardness of having an inspector general investigate his or her own IG office, then-Special Counsel Carolyn Lerner referred the main accusations to the Integrity Committee of the governmentwide Council of the Inspectors General on Integrity and Efficiency.
“We believe Congress has expressed a clear intent for the [CIGIE Integrity Committee] to review allegations concerning such officials, and since OSC received your allegations, Congress enacted the IG Empowerment Act of 2016 to establish a process aimed at ensuring the efficient resolution of jurisdictional issues between OSC and the [committee],” the recent letter said to Crane.
But the CIGIE committee reviewed the allegations, discussed them with relevant officials and decided to close the matter.
“Unfortunately,” the Special Counsel continued, “the [committee’s] decision not to investigate countermanded the Special Counsel’s statutory determination that the allegations warranted investigation . . . and highlights the challenges OSC faces in addressing allegations of misconduct by inspectors general and their high-level employees under the statutory framework of [section] 1213.”
Neither Crane nor his attorney were happy, though OSC did leave them with a ray of hope:
“Your file remains open pending receipt of an investigation from the Department of Justice regarding other allegations you made, which OSC previously referred for investigation under [Section] 1213,” OSC wrote.
Tom Devine, the legal director for the nonprofit Government Accountability Project (where Crane is now employed), sees the case as further evidence of a reluctance of the Pentagon IG to take seriously whistleblowers who flag senior staff misconduct. It’s an ongoing issue that has prompted concerns echoed by Grassley and Sen. Claire McCaskill, D-Mo., as well as audits by the Government Accountability Office.
Crane’s attorney also told Government Executive, “The Crane case exposes a huge accountability loophole that goes to the heart of merit system. By law, Offices of Inspector General are the watchdogs against fraud, waste and abuse. But until Congress acts, they can defy Special Counsel substantial likelihood findings that the Pentagon OIG covered up classified leaks which exposed America’s undercover heroes and their families. When the so-called Council of the Inspectors General on Integrity and Efficiency refused OSC accountability, it branded OIG’s as the weak link of the merit system.”
An angry Crane said, "The CIGIE refusal to investigate shows that the shield of independence and objectivity behind which it hides is in fact a ruse to avoid investigation of misconduct.”
CIGIE Executive Director Mark Jones said he could not comment on specific cases. But in a statement to Government Executive addressing the Oct. 11 letter from OSC, he said, “The Integrity Committee is not an agency head under 5 USC Section 1213. It does not have authority to impose remedies at agencies, and therefore it cannot stand in the place of the agency head under OSC’s statute,” he said.
“Nevertheless, the [committee] does thoroughly review, pursuant to the IG Act and under its own published standards, all allegations that it receives, including from OSC, of wrongdoing against inspectors general and their senior officials. That review frequently considers information from both complainants and subjects before determining whether an investigation is warranted. If warranted, the [committee] directs an investigation. Through this process, the [committee] ensures that allegations of misconduct against inspectors general and their high-level employees are addressed, regardless of whether they are referred by the OSC or made directly to the [committee] by the complainant.
DOD IG spokesman Bruce Anderson said in a statement "The DOD OIG relies on the Integrity Committee to handle these types of matters. We have confidence in the Integrity Committee's processes and decisions."
The OSC, whose new leader, Henry Kerner, was just confirmed by the Senate, said through a spokeswoman: “Although the Office of Special Counsel and the Council of Inspectors General on Integrity and Efficiency had overlapping jurisdiction after CIGIE’s creation, the Inspector General Empowerment Act of 2016 clarified Congress’ intent regarding how to handle allegations of wrongdoing against inspectors general and their high-level employees. OSC has worked closely with CIGIE’s Integrity Committee subsequent to the Empowerment Act’s passage to ensure that all such allegations are addressed in the proper venue, and pursuant to the different procedures Congress requires of OSC and the Integrity Committee.
“This new process is working well,” OSC said.