Admiral punished suspected whistleblowers, is still poised for promotion
By CRAIG WHITLOCK | The Washington Post | Published: October 21, 2015
WASHINGTON — The Navy is poised to promote the admiral in charge of its elite SEAL teams and other commando units even though Pentagon investigators determined that he illegally retaliated against staff members whom he mistakenly suspected were whistleblowers.
Rear Adm. Brian Losey was investigated five times by the Defense Department's inspector general after subordinates complained that he had wrongly fired, demoted or punished them during a vengeful but fruitless hunt for the person who had anonymously reported him for a minor travel-policy infraction, according to documents obtained by The Washington Post.
After conducting separate, years-long investigations that involved more than 100 witnesses and 300,000 pages of e-mails, the inspector general upheld complaints from three of the five staff members. In each of those cases, it recommended that the Navy take action against Losey for violating whistleblower-protection laws, the documents show.
The Navy, however, dismissed the findings this month and decided not to discipline Losey, a preeminent figure in the military's secretive Special Operations forces who once commanded SEAL Team 6, the clandestine unit known for killing terrorist targets such as Osama bin Laden. He now leads the Naval Special Warfare Command and has served in Afghanistan, Iraq, Panama, Bosnia, Somalia and other conflict zones.
Senior Navy leaders reviewed the inspector general's investigations but "concluded that none of the allegations rose to the level of misconduct on Admiral Losey's part," Rear Adm. Dawn Cutler, the Navy's chief spokeswoman, said in a statement. She added that "no further action is contemplated."
Losey did not respond to requests for comment placed through the Navy. Documents show that he vigorously contested the complaints, asserting that the staff members were poor performers and that he had acted within his authority as a commander.
The decision clears the way for Losey to pin on a higher rank as a two-star admiral. He was selected for the promotion in 2011, but it was put on hold for four years as the inquiries unfolded.
Critics say the previously undisclosed investigations into one of the Navy's top SEALs underscore the weakness of the military's whistleblower-protection law and how rarely violators are punished.
Under the law, commanders or senior civilian officials are prohibited from taking punitive action against anyone who has reported wrongdoing in the armed forces to the inspector general or members of Congress.
In comparison with other federal employees, whistleblowers working in the military or national security agencies must meet a higher burden of proof to win their cases. The odds are stacked against those who seek redress.
Of the 1,196 whistleblower cases closed by the Defense Department during the 12 months ending March 31, only 3 percent were upheld by investigators, records show.
"There's no teeth," said Mandy Smithberger, a military reform analyst at the Project on Government Oversight, a nonpartisan Washington advocacy group. She called the military's whistleblower law "a trap, because people think they have protection, but they don't. It's sad."
The complaints against Losey also illustrate the Pentagon's long-standing reluctance to discipline top brass for wrongdoing and how the military typically conceals misconduct investigations from public view. The armed forces rarely disclose the existence of such cases except in response to public-records requests, which usually take months to process.
The only public reference to the Losey case is buried in a 134-page semiannual report that the Defense Department inspector general submitted to Congress in June. Without identifying Losey by name, a single paragraph noted that a rear admiral had retaliated against people he thought were whistleblowers and that corrective action was "pending."
The inspector general's office declined to comment for this article. It has not responded to a request filed by The Post in August to release the Losey investigative reports under the Freedom of Information Act.
The Post obtained redacted copies of the reports from sources upset with the Navy's decision not to take action against Losey.
Most of the staff members who filed complaints against Losey asked to remain anonymous and declined to comment for the record, saying they were concerned they could face further retaliation for speaking out.
An exception was Fredrick Jones, a retired Army Special Forces colonel who served as Losey's civilian chief of staff before he was demoted. He questioned how the military could repeatedly ignore the outcome of the investigations.
"The lack of action demonstrates the Whistleblower Reprisal Protection Act's ineffectiveness in protecting victims, and highlights the lack of accountability for those individuals who have broken the law," he said in an email to The Post.
The turmoil began in July 2011, just three weeks after Losey took charge of the military's Special Operations Command for Africa, headquartered in Stuttgart, Germany.
Someone filed an anonymous complaint with the inspector general alleging that Losey had improperly sought a government-paid plane ticket for his adult daughter when his family relocated to Germany.
In fact, Losey had paid for the plane ticket himself, and the complaint was soon dismissed. But enraged by what he saw as an act of disloyalty, the admiral became determined to find out who had reported him, according to the inspector general reports.
Several staff members testified that Losey drew up a list of suspects and made it known there would be consequences. One unidentified witness said Losey vowed to "find out who did it" and would "cut the head off this snake and we'll end this."
Losey's mood soured even more a few weeks later. Another anonymous tipster filed an inspector-general complaint, alleging that the admiral had created a "toxic" atmosphere at headquarters.
As a result, Losey became convinced that there was "a conspiracy to undermine his command," according to the inspector general's findings in the whistleblower cases.
One witness testified that Losey told his staff to send a message to any malcontents: "If you continue to undermine my authority as a commander, I'm going to bury each one of them. I'm going to come after them, and I'm going to [make] it very unpleasant."
About the same time, Losey began cracking down on people whom he saw as potentially disloyal, according to the inspector general.
He fired an officer who had been on his list of suspects, alleging that he had committed a handful of minor transgressions, such as using the admiral's autopen without permission to sign routine paperwork.
He got rid of Jones, his chief of staff, who was stripped of his title and moved into a basement office, and then moved again to an even more remote outpost at a military airfield.
Later, Losey ordered an investigation into whether civilian staff members on his enemies' list had committed timekeeping and attendance-sheet errors that affected their pay, according to the inspector general reports.
At least three staff members faced discipline as a result, although their punishment for the timekeeping irregularities was ultimately overturned. Some staffers also received poor performance reviews, which affected their compensation and careers.
The actions sent a chill through the command. Other staff members said it was clear Losey was targeting people he suspected of being snitches.
"I don't understand why Brian did what he did. He went hard over stupid on it," said a senior military official who knew Losey well and served at the time with the U.S. Africa Command, the parent command for Losey's group.
"He was concerned about disloyalty. But as I had another commander tell me, loyalty goes both ways," said the military official, who spoke on the condition of anonymity because of the confidentiality of the investigations.
In the end, it turned out Losey had the wrong people on his list of suspects.
Investigators determined that none of the people he retaliated against had filed the original complaint about his daughter's plane ticket.
Losey sharply disputed the inspector general's findings even before it completed the first of the five investigations in August 2013. In one letter, his attorney accused the inspector general of "investigative improprieties" and being "fatally tainted by bias."
In testimony, Losey denied retaliating against anyone. He said he was just a tough and demanding commander who didn't hesitate to hold subordinates accountable for mediocre work. He also questioned the credibility of several witnesses.
The inspector general disagreed with Losey's objections and concluded that he had committed reprisals in three of the cases. Under the law, however, the inspector general lacked the authority to do much about it. The only step the office could take was to recommend that the Navy take "appropriate action" against Losey.
As he fought to keep his job, Losey received the backing of some key military leaders.
In 2013, Army Gen. Carter Ham, the four-star commander of Africa Command, sought out the Navy's top uniformed officer at the time, Adm. Jonathan Greenert, to voice support for Losey's candidacy for a plum new assignment: leader of the Navy's Special Warfare Command.
"I was very supportive of that and highly complimentary," Ham, who has since retired from the Army, said in an interview. "I knew there were allegations out there, and I thought it was important for Admiral Greenert to hear from me."
Ham said he was aware of the inspector-general investigations but was not privy to details of the cases, which remained confidential at that stage. He said he had the impression that civilian staff members were unhappy with Losey's aggressive style and the admiral's desire to ramp up the command's operations.
"I think that was at the core of why some of the civilian employees were disgruntled," Ham said.
Losey, he added, "is a very direct guy. There's not a lot of nuance with him, and I think that might have caused some of the friction."
Losey won the Special Warfare Command assignment shortly afterward.
The inspector general took two more years to wrap up its cases against Losey. Despite the findings that Losey had violated whistleblower-protection laws, the Navy's leadership concluded that he had acted within his duties and responsibilities as a commander, according to a senior Navy official familiar with the case.
The official said the Navy issued Losey a formal letter of counseling this month, advising him to be thoughtful and careful when handling such matters in the future but finding no wrongdoing on his part.
Meanwhile, the inspector general also recommended that the armed forces take action against two colonels who served as senior aides to Losey. Investigators determined that they had punished suspected whistleblowers, effectively acting on behalf of the admiral.
One of the aides, Air Force Col. Richard Samuels, now assigned as an instructor at the Air War College at Maxwell Air Force Base in Alabama, denied retaliating against anyone. "No, I did no such thing," he said in a brief phone interview. "I would have known if I was firing people and so forth."
A Maxwell Air Force Base spokesman, Lt. Col. Dave Huxsoll, said officials "are in the process of determining what, if any, appropriate administrative action will be taken" against Samuels.
The other senior aide, Army Col. Michael Franck, has since retired from the military.
In a statement, the Army said it reviewed the inspector general's findings but "elected not to take action." Franck did not respond to emails seeking comment.