Tue 20 Mar, 2012 10:32 am
Mar. 19, 2012
Army threatens to fire whistleblower for talking to McClatchy
Marisa Taylor | McClatchy Newspapers
last updated: March 19, 2012 06:44:35 PM
WASHINGTON — The military's embattled crime lab is trying to fire an outspoken whistleblower who's spotlighted its problems.
Earlier this month, the U.S. Army Criminal Investigation Laboratory warned its firearms branch chief, Donald Mikko, in a memo of its plans to fire him, in part for talking to a McClatchy reporter.
As part of an internal investigation, Mikko was interrogated for about four hours and questioned about his contacts with McClatchy, according to his attorney Peter Lown. The Army Criminal Investigation Command, which oversees the lab, launched the inquiry after McClatchy published a story late last year about the lab losing evidence.
McClatchy has written more than a dozen stories about the lab since last March, which included details of 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 of Iowa, the committee's top-ranking Republican member, 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 is looking for a scapegoat to blame for the recent adverse media reports," Lown said.
The Criminal Investigation Command, abbreviated as CID, says it's never targeted anyone for talking to the news media, and it's asserted that McClatchy's series of stories has overblown isolated mistakes and misconduct that shouldn't reflect on the lab's overall reputation.
Mikko's potential firing would come as his division is expected to take up the analysis of evidence in the killings of 16 Afghan civilians last week, allegedly by a U.S. soldier. The lab analyzes evidence in about 3,000 criminal cases a year.
"It seems more than a bit ironic," Lown said. "The guy they are firing is one of the most respected firearms examiners in the world, with over 22 years of experience."
Criminal Investigation Command spokesman Chris Grey said he couldn't comment because it involved a personnel matter that was protected under privacy laws.
"In short, individuals may bring their side of the story to the media, but CID cannot respond," he said.
However, he added that the command had "a duty and obligation under the law" to safeguard all sensitive and classified information.
"We are not aware of any case where CID headquarters (or) its subordinate commands have impeded an individual's right to freedom of speech," he said. "Army personnel may express personal opinions unless limited by law or regulation."
The internal investigation was launched after one of McClatchy's most recent articles detailed two analysts misplacing evidence in criminal cases. One examiner waited months to report it, delaying an internal investigation into its whereabouts.
In seeking a response about the evidence the crime lab had lost, McClatchy provided case numbers and the names of criminal suspects and victims to the command's public affairs office. The Criminal Investigation Command gave investigators McClatchy's emails as possible evidence of privacy violations. The suspects' names were never published and McClatchy isn't disclosing the sources of the material it obtained.
In an effort to determine how McClatchy got the information, investigators pored over employees' personal phone records looking for McClatchy's phone number. About 20 employees were questioned and four reported being contacted by McClatchy, but no one acknowledged giving McClatchy the information.
During his interrogation, Mikko acknowledged speaking to a McClatchy reporter about a retaliation complaint he'd filed against lab management. He said he'd first sought permission from the lab's attorney.
Investigators, however, 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.
The information about the missing evidence was "likely improperly released" to McClatchy, the investigators said, but they couldn't determine who'd released it.
Days before being questioned, Mikko had testified in an employee discrimination complaint that a black firearms analyst had filed against lab officials. One of those officials, Richard Tontarski, is the one who later recommended that Mikko be fired. Mikko also had filed his own complaint alleging retaliation for supporting the analyst. Tontarski was one of the managers named in that complaint as well.
In his memo recommending Mikko's firing, which McClatchy obtained, Tontarski didn't mention Mikko's role in the employee disputes but instead emphasized the firearms chief's contact with McClatchy.
"Your behavior continues to undermine my trust in you and your decision-making ability," Tontarski wrote in the proposed termination.
Although an administrative law judge concluded late last year that the black employee, A.D. Bell, wasn't discriminated against, the judge allowed Mikko's complaint to proceed. In his ruling, the judge also took aim at Tontarski, calling him "an unreliable witness" who claimed "incredible lapses in memory" about events at the lab.
Last week, Mikko asked the Pentagon for whistleblower status, citing the recent threat by Tontarski to fire him and his role as a source in a previous inspector-general inquiry into the lab.
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