A current and former top official at the Defense Department’s inspector general office are the subjects of a court investigation of alleged destruction of key documents during the watchdog’s own probe of the whistleblower case of former National Security Agency official Thomas Drake.
The IG officials are former acting inspector general Lynne Halbrooks, now with a law firm, and current Pentagon IG General Counsel Henry Shelley, according to two sources involved with the IG’s investigation of Drake and according to Danielle Brian, executive director of the nonprofit Project on Government Oversight.
Details of the judicial investigation were revealed Tuesday by McClatchy newspapers, though without the officials’ names. McClatchy reported that Baltimore-based U.S. Magistrate Stephanie Gallagher had begun the probe after Drake’s attorneys at the Government Accountability Project in April accused the Defense Department IG’s office of having destroyed evidentiary documents several years earlier during a probe of possible retaliation against Drake. The magistrate on May 13 requested cooperation from the Justice Department’s Public Integrity Section.
Halbrooks did not respond to messages, and the Pentagon IG’s office declined to comment. The Justice Department also gave no comment on the current judicial probe.
The Drake case, which is a hallmark in the whistleblower community, involved the Justice Department’s prosecution of an NSA senior executive in 2010 under the Espionage Act for speaking about wasteful programs going back a decade to a reporter for the Baltimore Sun. The government eventually dropped the case after public outcry and skepticism from Federal District Judge Richard Bennett. Drake pleaded guilty to a lesser charge of misuse of a government computer and received a sentence of community service.
Jesselyn Radack, one of Drake's attorneys, now accuses the Justice Department of misrepresenting the document retention and records management policies in place at the Pentagon inspector general’s office.
The court’s investigation so far has uncovered testimony that Halbrooks and Shelley were challenged in February 2011 on the propriety of destroying the documents soon after the Drake retaliation case was closed, but that they declined to open a new investigation.
Tom Devine, legal director for the Government Accountability Project, told Government Executive that “Drake and the other NSA surveillance whistleblowers followed all the rules and worked within the system, to a letter. But the Pentagon inspector general responded by violating their rights, referring them for criminal investigations and beginning nightmares that devastated Mr. Drake's and others’ lives.”
He continued: “OIG lawlessness is a primary cause of media leaks. If whistleblowers cannot trust the inspector general, only those with a martyr complex will work within the system. The whistleblower community will be watching very closely whether the Justice Department takes this referral seriously. It is time for accountability to become a two way street."