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Navy Times wins lawsuit for abuse case details

But IG report on ‘hostile command climate' still may not be released

Jan. 13, 2013 - 11:48AM   |   Last Updated: Jan. 13, 2013 - 11:48AM  |  
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Navy Times has won an important ruling in its legal challenge to force U.S. Strategic Command to release investigative reports into an allegedly abusive Navy official.

In 2011, William H. McMichael, then a Navy Times staff writer, asked STRATCOM to release an Inspector General report detailing the conduct of Capt. Bill Power, the command's then-director of logistics, who had been accused of abusive behavior by subordinates.

But each of three Freedom of Information Act requests was denied by STRATCOM officials, who refused to confirm or deny the existence of the records under an exemption to the federal Freedom of Information Act normally applied to state secrets.

Yale Law School's Media Freedom and Information Access Clinic took up the fight on Navy Times' behalf, challenging the Pentagon's determination in the U.S. district court for the District of Columbia.

The Yale group argued that the Pentagon's refusal to acknowledge whether the report existed was a misuse of the cited exemption. They argued the IG report into a senior official's conduct should be a matter of public record, noting that STRATCOM employees knew of the probe and that Power had even told some of his 49 employees about the report's conclusions.

The judge sided with Navy Times.

"The Court agrees with Mr. McMichael's assertion that the public has a strong interest in knowing whether the IG investigated allegations of an abusive command climate by the J4 Director," concluded District Judge Rosemary Collyer in a Dec. 18 ruling. She called the Defense Department's response "improper" and instructed DoD personnel to locate public records and determine if they are releasable.

Navy Capt. Jeff Bender, the STRATCOM spokesman, said the court's ruling will not be appealed.

"In light of the court's ruling, the responsive documents are undergoing a line-by-line FOIA review," said Bender, who estimated it will wrap up by March.

The IG probe's paper trail is extensive. A STRATCOM employee told Navy Times the investigation generated 1,000 pages of testimony and cost more than $6,000 to transcribe.

But because the ruling only overturned the Defense Department's refusal to confirm or deny existence of the investigation, it still may never come to light.

The ruling challenged the command's use of a "Glomar response," which takes its name from the Central Intelligence Agency's response to media requests concerning the Hughes Glomar Explorer, a ship used in a top-secret 1974 mission to recover a sunken Soviet submarine. In that case, the CIA refused to confirm or deny whether the agency had any records on the highly secretive program.

However, in the Power case, which involved the captain's alleged behavior toward subordinates, the judge ruled Glomar was insufficient.

"Where the fact of the IG investigation was known to a number of people and the identity of the person under investigation was equally apparent, a Glomar response cannot satisfy," Collyer wrote in the ruling.

Power, who now commands Fleet Logistics Center Puget Sound in Bremerton, Wash., said the judge "made a good decision" but emphasized in a telephone interview that he had not been an abusive leader. He characterized the IG report, which he said had found him responsible for a hostile command climate and for mistreating staff members, as a "hit job" initiated by a disgruntled employee.

"The whole thing was an absolute pop and a fizzle. There was nothing to it. It was painful to go through," Power said. Despite this report, he noted, a subsequent command climate survey found a positive atmosphere in his directorate, and STRATCOM later awarded him a Defense Superior Service Medal.

Power said he was never reprimanded.

"I think they cited legitimate reasons for this Glomar thing," Power said of STRATCOM's FOIA response, "but I think one of the motivations for doing Glomar was that I don't think they were terribly proud of the investigation."

James Shih, one of the four Yale Law School students who litigated the case, said the verdict is a victory against the government hiding behind secrecy.

"Our goal was to really push the law back in terms of this growth of Glomar, the metastasizing of Glomar in contexts beyond national security," Shih said.

McMichael is now a military reporter at The News Journal, of Wilmington, Del., which like Navy Times is owned by Gannett Co. He hailed the decision. "It's a victory," he said, "for freedom of the press."

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