Defying Subpoena, DoD Orders Sexual Assault Program Chief Not To Testify Before Congress

The Pentagon defied a Congressional subpoena yesterday by refusing to let the head of its sexual assault program testify at an oversight hearing about sexual assault in the military.

The House panel had issued a subpoena for Dr. Kaye Whitley, the director of the Defense Department’s Sexual Assault Prevention and Response Office.

But Pentagon officials ordered her not to testify and instead sent her supervisor, Michael Dominguez, a principal deputy undersecretary for defense, in her place.

Whitley’s absence came on the same day a federal judge rejected the White House’s claim to blanket immunity from Congressional oversight in an unrelated case.

Dominguez told the committee the Pentagon was not citing executive privileged but had simply instructed Whitley not to show up.

A Pentagon spokeswoman, Cynthia O. Smith, provided a statement today in response to questions about Whitley’s defiance of the subpoena.

It is inappropriate to question Dr. Whitley about the program when Mr. Dominguez, the decision maker responsible for the program and for the program’s results, is available to answer those questions.

Mr. Dominguez has full accountability and responsibility for the Sexual Assault Prevention Office and he has the full authority to discuss and answer all questions regarding the SAPRO and the Department’s sexual assault policies. Dr. Whitley is responsible for implementing the policy….

Dr. Whitley has been on the Hill numerous times discussing the DoD’s sexual assault program and she will continue to do so.

Lawmakers interpreted the move as an affront to Congressional authority and said they had specifically sought Whitley based on her knowledge of how the military’s sexual assault programs actually work in practice.

Rep. Henry Waxman (D-CA) said to Dominguez at the hearing:

“What is, what it is you’re trying to hide? She’s the one in charge, let me speak, she’s the one in charge of dealing with this problem. We wanted to hear from her. And despite a subpoena from a committee of Congress, you’ve been instructed by the secretary, undersecretary or deputy secretary in charge of legislative affairs not to allow her to come? … I don’t know who you think elected you to defy the Congress of the United States. We’re an independent branch of government. … this is an unacceptable, absolutely unacceptable position for the department to take and, uh, we are not going to let it stand.”

Rep. John Tierney (D-MA) tersely dismissed Dominguez without asking him any questions about sexual assault.

“Well let me tell you something Mr. Dominguez, we decide who we want to have for witnesses at this hearing, we decide who, uh, the people that are going to give us factual testimony, the ones that we want to hear from when we are investigating or having a hearing. So for now Mr. Dominguez, you’re dismissed.”

Here is a clip of the entire nine-minute exchange between Dominguez and the lawmakers.

In June, the House panel asked Whitley to testify. When the Pentagon resisted, the committee issued a subpoena on Monday compelling her to attend the hearing yesterday, according to a statement today from Tierney, the chair of the oversight committee’s National Security and Foreign Affairs subcommittee.

The hearing on sexual assault in the military came the same day as a
GAO report that found sexual assault in the military is probably underreported by half.

Some victims in the military do not report sexual assault because they fear “that nothing will be done; fear of ostracism, harassment, or ridicule; and concern that peers would gossip,” according to the report.

Whitley’s office is essentially a policy office and the bulk of the military sexual assault support programs are run by individual commanders. The Pentagon has resisted efforts to create an Office of the Victims’ Advocate, which would oversee those efforts more independently.

An advocate for military victims of sexual assault tells TPMmuckraker that Whitley’s office is under-resourced and reflects the Pentagon’s lack of attention to sexual assault.

“We are concerned that it does not have all the tools and personnel it needs to go forward. And we’re increasingly concerned that it is becoming politicized,” said Anita Sanchez, communications director for the Miles Foundation.

Tierney said the committee is considering “ALL our options here in the face of this blatant disregard of a validly-issued subpoena,” including seeking a contempt of Congress charge for Whitley, Dominguez or others.