Army probes crime lab workers after critical news reports

Feb. 03, 2012
Army probes crime lab workers after critical news reports
Marisa Taylor | McClatchy Newspapers

WASHINGTON — Stung by critical stories about their crime laboratory, officials at Army Criminal Investigation Command recently questioned lab employees for hours and scrutinized personal phone records looking for contacts with reporters.

The inquiry was launched after a McClatchy reporter asked questions late last year about the lab losing evidence. A command spokesman characterized the investigation as looking into violations of privacy law, but the investigation report, which McClatchy obtained, shows that the command was interested primarily in whether employees had provided information that resulted in a story about lab problems.

"This investigation was aimed at rooting out anyone even remotely critical of the lab," charged Peter Lown, an attorney for one of the employees questioned in the probe. "The lab's management doesn't want any more critical stories."

McClatchy has written a dozen stories about the lab since last March, including detailing the misconduct of two former analysts who made serious errors during DNA and firearms testing and who later were found to have falsified and destroyed documents when confronted with the problems.

As a result of McClatchy's articles, Senate Judiciary Committee Chairman Patrick Leahy, D- Vt., and Sen. Charles Grassley, R-Iowa, have urged the military to look into the lab's handling of the misconduct by one of the analysts. An investigation by the Pentagon's inspector general is ongoing.

The Army's investigation of media contacts comes as the Obama administration takes a hard-line stance on leaks. President Barack Obama's Justice and Defense departments have criminally prosecuted more former and current government officials on charges of disclosing information than previous administrations have.

Unlike in the Army investigation, however, all the prosecuted officials were accused of divulging classified intelligence, which can be a felony.

"This is an unprecedented crackdown by the Obama administration," Jesselyn Radack, a lawyer with the Government Accountability Project, a public interest organization that protects whistleblowers. "It sends a very chilling message to any kind of whistleblower who is considering dissenting or speaking out."

"Initially, I thought it was a way to curry favor with the national security and intelligence community, in which Obama was seen as weak," said Radack, who specializes in national security. But Radack said she now thought that the effort was a "backdoor way" to criminalize the release of government information without seeking the legislation to do so.

Whistleblower advocates charge that under the Obama administration, agencies have pursued a myriad of methods to discourage whistleblowers from talking, including issuing new gag-order rules or, in the case of a group of Food and Drug Administration scientists and doctors, allegedly monitoring personal emails.

The Justice Department, which has brought five of the six latest prosecutions, defended its more aggressive stance as a legitimate pursuit of officials who disclose information that's classified for national security reasons.

In the latest indictment, former CIA officer John Kiriakou is accused of leaking to reporters the name of a CIA analyst involved in the capture and interrogation of accused terrorist Abu Zubaydah. Zubaydah was subjected to controversial interrogation techniques, including waterboarding, which have since been banned.

"We seek to strike the proper balance between First Amendment freedoms and the law enforcement and national security interest in investigating unauthorized disclosures of classified information," department spokesman Dean Boyd said.

In the crime lab probe, command investigators decided that the information that had been disclosed to McClatchy might violate military and federal laws that protect privacy. Violators could be fired and face criminal misdemeanor charges and a fine. The Army Criminal Investigation Command oversees the U.S. Army Criminal Investigation Laboratory, which is the military's most important forensics facility, handling more than 3,000 criminal cases a year.

McClatchy had been gathering information for a story that revealed that a forensic document examiner had misplaced a handwriting sample in an assault case. The examiner waited months to report the missing evidence, delaying an internal investigation into its whereabouts.

In the same story, McClatchy reported on another lab employee who discovered a washcloth that was supposed to be analyzed was missing two weeks after it had been inventoried for a possible suicide case. A DNA examiner was supposed to test the washcloth for the presence of blood but couldn't because it wasn't located.

"The information was likely derived from personnel who had direct knowledge," investigators concluded in a 15-page report, saying it was "likely improperly released" to McClatchy.

Investigators pored over employees' personal phone records, with their permission, looking for McClatchy's phone number.

Even so, investigators said they couldn't determine how McClatchy had obtained the information.

Chris Grey, a command spokesman, said the investigation wasn't intended to retaliate against whistleblowers, adding that the command had a duty to protect sensitive information about evidence in criminal cases, such as suspects' and victims' names.

In seeking a response about the evidence the crime lab had lost, McClatchy had provided case numbers and the names of criminal suspects and victims to the command's public affairs office but hadn't published them. Investigators were given McClatchy's emails as possible evidence of privacy violations.

"This was not a 'leak investigation' as you have phrased it, nor an investigation into any one individual, but an investigation into the improper access of our databases and violations of the Privacy Act," Grey said in a statement.

The chief of the lab's firearms branch, Donald Mikko, was interrogated for about four hours about his contacts with McClatchy, said Lown, his attorney. Mikko had testified days before in an employee discrimination complaint against lab officials. Previously, Mikko had filed his own complaint alleging retaliation for supporting the examiner, who's black.

In less than four years, at least six internal investigations have been launched and six complaints filed against managers of the lab. The accusations and counter-accusations include racism, sexual harassment, assault and fraud.

Mikko acknowledged speaking to a McClatchy reporter about the allegations of retaliation. Investigators concluded that he'd violated Army policy by accessing information at the lab for his complaint and by failing to refer the reporter to the command's public affairs office.

Lown said an Army command lawyer had told him that Mikko would be punished but hadn't specified what the punishment would be. Grey, the command spokesman, didn't respond to questions about whether any employee would be punished.

Lown said his client had asked the crime lab's attorney whether he could speak to the media before he talked to McClatchy. Mikko was told he was permitted to because he was a civilian and as long as he was speaking about his employment complaint, Lown said.

"He was told it was his First Amendment right," Lown said.