Special Counsel accepts Justice Department’s findings regarding whistleblower claims in a long-running case that roiled the watchdog community.
In what may be the near-final act in an eight-year saga, the Office of Special Counsel on Monday announced it was closing a multi-pronged complaint by a former Defense Department employee in the Pentagon’s Office of Inspector General who alleged officials there lied about and destroyed evidence in a high-profile national security case.
The ruling against John Crane, who lost his job with the Pentagon IG and became a whistleblower activist, also helped officially resolve a related dispute: Accusations that Defense IG General Counsel Henry Shelley made anti-Semitic comments while discussing cases were also dismissed.
Special Counsel Henry Kerner on Sept. 10 sent a letter to President Trump and congressional committees resolving the charges of misconduct by officials at the Pentagon IG’s office. Kerner made his determination after reviewing a lengthy Justice Department IG probe of the Defense IG’s handling of its own earlier investigation of alleged disclosures of classified information to the news media in 2010 by then-National Security Agency executive Thomas Drake. (Drake became a cause celebre in the whistleblower community and the charges against him were dropped, but he still lost his government job.)
Back in March 2016, OSC, under the leadership of Kerner’s predecessor Carolyn Lerner, referred Crane’s charges of false statements about document destruction and impeding an investigation to Justice Department Inspector General Michael Horowitz and the integrity committee of the governmentwide Council of the Inspectors General on Integrity and Efficiency. Horowitz chairs the larger council. The Justice IG completed its investigation in April, and Special Counsel Kerner reviewed the findings as well as a rebuttal sent on Aug. 16 by Crane before announcing the OSC’s conclusions.
The Special Counsel said the Justice IG “found no evidence that [the Defense Department] IG improperly destroyed documents related to the audit,” Kerner wrote to Trump. And though OSC reviewers grew concerned about whether the IG staff used proper preservation procedures for authorized destruction of sensitive documents, Kerner concluded that Pentagon IG officials clarified any previous wrongful information about document destruction. The Justice IG report, OSC wrote, “meets all statutory requirements” and the “findings appear reasonable.”
Kerner sympathized with Crane’s complaint, however, that the investigation had taken “a significant amount of time” and said that a goal of his OSC is to reduce those times in the future. He also announced that the Crane case had helped prompt an effort to work with the inspectors general council integrity committee on a new framework for “resolving allegations against independent inspectors general through OSC’s process.”
Former Pentagon General Counsel Shelley, who retired in January 2018, told Government Executive on Wednesday that he too was concerned about the length of the process, but he expressed satisfaction that he was "ultimately vindicated of all allegations.”
Those also included a charge that he and acting Defense IG Lynne Halbrooks had softened a report on the IG’s handling of arrangements in the investigation of whether CIA Director Leon Panetta and Defense Undersecretary for Intelligence Michael Vickers in 2011 broke classification rules by revealing the name of the Navy Seal Team 6 leader to Hollywood filmmakers making the movie “Zero Dark Thirty.”
The anti-semitism charges stemmed from a case brought by the Michigan law firm of Morganroth and Morganroth on behalf of a former Army civilian employee David Tenenbaum, who in the late 1990s was the subject of an FBI probe into possible spying for Israel. (The IG’s office later found that Tenenbaum suffered religious prejudice, but offered him no remedies other than keeping his job.)
The law firm’s accusations, made in an August 2016 letter to acting Defense IG Glenn Fine, relied partially on statements about Shelley’s behavior from John Crane. Fine, who defended Shelley in congressional testimony, referred the charges to the IG Council as a precaution.
Shelley told Government Executive Wednesday he had received a letter from the IG Council’s integrity committee in August 2017 informing him expressly that the accusations in the “Zero Dark Thirty” case had been disposed of and that the committee “will take no further action.”
Shelley interprets the IG Council committee’s actions to include a dismissal of the anti-Semitism charges as well. The committee, he said, had forwarded him portions of the law firm’s complaint for comment, and “in my response to the committee I totally denied all allegations, including those involving anti-semitism,” he told Government Executive. “I assume the allegations they did not refer to me failed to meet the level of credibility for the committee to address.”
When asked, the committee told him only that it had closed the complaint. Both CIGIE and the Defense IG declined to comment to Government Executive.
David Harold, a spokesman for Morganroth and Morganroth, questioned the independence of CIGIE: “That’s the problem with the government sitting in judgment on itself. These agencies all cover for each other and don’t care about justice or morality.” He told Government Executive that the Tenenbaum case remains active with his firm and the nonprofit Government Accountability Project.
Crane, who has left his position at the Government Accountability Project, attacked the Justice Department IG’s probe and the OSC for “shielding IG misconduct” from agency heads, not using their full investigatory powers and depriving him of due process under whistleblower laws.
“The report by Mr. Horowitz, and how it was handled, casts doubt over the independence, objectivity, and integrity of both Mr. Horowitz and the prior leadership of the Office of Special Counsel,” Crane told Government Executive.