Government Withheld Exculpatory Report During Trial of Pentagon Whistleblower

September 5, 2019 Updated: September 6, 2019

A whistleblower is challenging the outcome of an administrative trial that stripped him of his security clearance, after discovering that the U.S. government had withheld an exculpatory report. The report was from a secret inquiry that had cleared him of allegations that he leaked information to the media.

Adam Lovinger filed an ethics complaint with the Department of Defense (DOD) Inspector General dated July 17, the day after discovering, through a Privacy Act request, that the government was in possession of an exculpatory report by the Naval Criminal Investigative Service (NCIS) months before his administrative trial.

Lovinger gained national attention last year when he disclosed that he blew the whistle on the contracting activity of the Pentagon’s Office of Net Assessment (ONA), particularly the contracts awarded to FBI informant Stefan Halper. The revelation caused a stir in the media because Halper was outed as one of the informants who targeted the campaign of candidate Donald Trump. Lovinger wasn’t aware of Halper’s role as a government informant when he lodged the complaints about Halper and the ONA in 2016 and 2017.

Lovinger’s attorney, Sean Bigley, believes Lovinger was targeted for reprisal for his complaints about the ONA overall and not about Halper specifically.

“Mr. Lovinger’s complaints were about the disconnect between what ONA was paying its contractors to do and the office’s primary responsibility of producing net assessments. ONA has not produced a single net assessment in over a decade. Mr. Lovinger’s point was that not producing net assessments jeopardizes our national security and prevents us from having an informed strategy if we ever need to go to war,” Bigley told The Epoch Times.

The Pentagon’s Washington Headquarters Services revoked Lovinger’s clearance in 2017. He was then fired because the clearance was a requirement for employment.

Lovinger appealed the clearance revocation. After a five-day administrative trial held from Dec. 10–14, 2018, the judge concluded in May that there was insufficient evidence to establish that Lovinger leaked information to the media. The judge ruled against Lovinger with regard to two other offenses and recommended for his clearance to be revoked.

Bigley said that the government’s withholding of the exculpatory report affected the outcome of the trial because the leaking allegations amounted to the most serious charges against his client.

“This evidence would have really undercut the government’s case on a lot of their other claims against him, because it would have demonstrated that the most significant charge against him was unsubstantiated and was false,” Bigley said.

“So they deprived us of that. They caused me and the rest of Mr. Lovinger’s legal team to have to waste an enormous amount of our valuable preparation time trying to shoot down an allegation that they already knew was false.”

The NICS report concluded that Lovinger didn’t leak any sensitive information to the media. The NCIS informed the ONA about the outcome of the inquiry in August 2018, more than three months before the administrative trial. The ONA didn’t respond to a request for comment.

“These actions constitute a serious ethics violation that further underscores the case against Mr. Lovinger as being predicated on unlawful whistleblower reprisal,” Bigley wrote in his complaint to the inspector general.

Lovinger came to discover the document by teaming up with Judicial Watch, a conservative government transparency group, to obtain documents about his case through a Freedom of Information Act lawsuit. After obtaining the documents, Lovinger spotted a reference to NCIS in one of the emails. He then filed a Privacy Act request, which yielded the report.

According to Bigley, Lovinger began to bring up his concerns about the ONA in March 2016 and intensified his whistleblowing activity in the period between September 2016 and January 2017. Around the time Lovinger ramped up his whistleblowing activity, he was reported by a Naval intelligence officer for reading a purportedly classified document on an airplane to Hawaii.

That document was not classified at the time Lovinger was reading it and bore a footer marking that read “classification pending.” The government refused to produce the document—a report written by a college professor—and ruled that it was classified. At the time the incident occurred, Lovinger received only a caution to be more careful. According to Bigley, four months later, after Lovinger continued to blow the whistle, “the incident was retroactively inflated to become a serious security issue.”

In addition to withholding exculpatory evidence, the Washington Headquarters Services (WHS)—the agency that revoked Lovinger’s clearance—played the “ judge, jury, and executioner” in the case because the administrative court’s ruling was ultimately a recommendation to the WHS.

Bigley had also demanded that the agency recuse itself from the case due to two conflicts of interest. According to Bigley, the WHS was the counterparty on all the ONA contracts Lovinger spoke up about. Meanwhile, senior WHS officials were involved in the case, including then-WHS Director Barbara Westgate, who authored a memo instructing her subordinates about Lovinger’s guilt.

“What were these ‘objective’ adjudicators supposed to tell their boss? ‘You’re wrong?’” Bigley wrote in an email to The Epoch Times.

Lovinger received a memo notifying him of his firing, days after Bigley filed the ethics complaint about the withholding of exculpatory evidence.

“This proposed removal from federal service must be held in abeyance until and unless the Inspector General’s office completes its investigation and concludes (inconceivably) that the actions taken against Mr. Lovinger were justified,” Bigley wrote in a response letter.

“In the meantime, this proposal—and any action taken to effectuate it—only further reinforces Mr. Lovinger’s reprisal case,” he wrote.

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