DHS IG has ‘profound concerns’ about whistleblower retaliation at Coast Guard

The Homeland Security Department’s inspector general has “profound concerns” that the Coast Guard Investigative Service executed a search warrant against a whistleblower — weeks after CGIS learned of the IG’s own investigation into possible retaliation against that same whistleblower.

John Kelly, the senior official performing the duties of the DHS inspector general, said his office has been investigating whether the department retaliated against a whistleblower for communicating with members of Congress.

The IG recently learned of the CGIS’ search warrant, which the Coast Guard obtained in connection with its own investigation into the matter, Kelly said.

CGIS executed the warrant, which sought all “communications with DHS OIG and congressional aide[e]s” about the whistleblower’s claims of discrimination, after the whistleblower retired from the Coast Guard and after the investigatory service learned of the DHS IG’s own investigation of possible whistleblower retaliation.

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“I am deeply concerned that CGIS may be conducting a retaliatory investigation against the whistleblower,” Kelly wrote in a memo to DHS and Coast Guard leadership. “Moreover, CGIS’ involvement in the extraordinary efforts to seize a DHS employee’s communications with DHS OIG and Congress, even if non-retaliatory, are likely to have a significant chilling effect on whistleblowers’ willingness to provide information to, and cooperate with DHS OIG and Congress.”

The Military Whistleblower Protection Act protects troops’ rights to communicate with members of Congress or an inspector general.

Kelly has been serving as acting DHS IG since December 2017. President Donald Trump recently announced his intent to appoint Joseph Cuffari to be the department’s permanent inspector general.

Kelly detailed his concerns, along with his own recommendations and the department’s response, in a a “management alert” addressed to DHS acting Deputy Secretary Claire Grady,  Coast Guard Commandant Karl Schultz and DHS General Counsel John Mitnick.

Kelly asked the department to immediately resolve the situation and ensure that all DHS components with investigatory authority are aware of whistleblower protections and rights.

DHS said it complied with the IG’s recommendations.

The department said it reviewed the details of the CGIS situation and declared no whistleblower retaliation had taken place. Timing of the search warrant and of CGIS’ knowledge of the IG investigation was “purely coincidental,” DHS wrote in response to Kelly’s recommendations.

The IG, however, offered a stinging assessment of DHS’s response.

“Even assuming [the Coast Guard] acted without retaliatory intent, CGIS failed to exercise its investigative authority in a manner affording due respect to the rights of whistleblowers,” the IG said.

The department didn’t offer a compelling reason for why the CGIS targeted the whistleblower’s communications with Congress or the IG, Kelly added.

“The marginal relevance of such communications to CGIS’ investigation must be weighed against the likely chilling effect resulting from USCG’s deliberate effort to target a whistleblower’s OIG and congressional communications,” Kelly wrote. “The department’s response fails to even acknowledge this chilling effect. Unless whistleblowers have confidence that their communications will be safeguarded, their ‘right to freely make protected communications to OIG and Congress’ is impermissibly undermined.”

Moving forward, CGIS will require all agents to coordinate with the department’s inspector general when it seeks IG communications to inform a Coast Guard investigation, DHS wrote.

But DHS’ response didn’t address whether it require other components to train to their employees on whistleblower protections or require coordination with the IG, Kelly said.

The IG left both recommendations open, despite DHS’ assertions otherwise.

Reps. Bennie Thompson (D-Miss.) and Elijah Cummings (D-Md.), ranking members on the Homeland Security and Oversight and Government Reform committees, said they will continue to ask for more information about the Coast Guard’s handling of the matter.

“Any attempt to retaliate against whistleblowers or impede their right to contact members of Congress or the inspector general is intolerable and would likely violate the law,” they wrote Monday in a joint statement. “DHS must ensure full accountability for actions taken by the Coast Guard Investigative Service and immediately implement the inspector general’s recommendations to safeguard the statutory rights of whistleblowers.”

Both lawmakers, in addition to Rep. Joe Courtney (D-Conn.), also asked the Coast Guard last week to provide all documents related to allegations of harassment or bullying from students or faculty at the service’s academy.