Bill would strengthen whistleblower protections for military personnel

Monday - 11/25/2013, 1:41pm EST

Tom Devine, legal director, Government Accountability Project

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Four senators have introduced a bill to strengthen protections for military whistleblowers. They say it would encourage service members to report sexual assault as well as fraud, waste and abuse.

"Improving the military's whistleblower system is an important step toward encouraging whistleblowers to report fraud, waste, and other misconduct, especially sexual assault," said Sen. Mark Warner, who introduced the bill with Sens. Susan Collins (R-Maine), Tim Kaine (D-Va.) and Chuck Grassley (R-Iowa). "Our military men and women should trust that our justice system will protect them and provide an environment free of retaliation."

One of the groups applauding the measure is the Government Accountability Project.

GAP Legal Director Tom Devine told Federal Drive with Tom Temin and Emily Kopp Monday the problem with the current law is that it's toothless when it comes to the military.

"It's got some limited free speech rights and probably an appropriate context for where it's responsible to dissent for soldiers that's more limited than the civilian employees," he said. "But when it is important to dissent, the stakes are probably higher and these rights don't have anything to back them up."

Under the current law, service members don't have the opportunity to have a day in court, they lack any administrative due process and there are no legal standards for how the whistleblower can win or lose a case.

"This is a law that creates more reprisal victims than it helps," Devine said. "And it's in the area where fraud, waste and abuse can have the highest consequences. Something's got to give."

Tom Devine, legal director, Government Accountability Project

What sparked this new bill, according to Devine, is the wave of sexual assaults against service members that has been reported in the press over the last year.

It's not just enlisted personnel facing reprisals for reporting abuse. Devine said the lack of due process extends throughout the chain of command.

"It extends pretty much wherever someone challenges an abuse of power within the military bureaucracy," Devine said. "A number of the whistleblowers are enlisted people who are challenging sexual harassment directed against themselves or colleagues, but some of them were officers who are fighting sexual harassment. ... Wherever there is power, it can be abused."

In November 2013, President Barack Obama signed The Whistleblower Protection Enhancement Act into law, extending protections for federal employees not in the military.

"It is always a tougher lift for people who are legitimately in an environment that requires more discipline, more blind faith obedience because of the context of the few organizations' mission," he said. "We don't really have a gripe with the fact that the context for freedom of dissent are much more narrow in the military than they are in the civilian sector. The problem is when it is necessary to blow the whistle, such as Abu Ghraib or the My Lai massacre or some sort of corruptions or screwups or intelligence breakdowns that can threaten the troops, the consequences are life and death stakes that are at risk here. We need whistleblowers more than in other sectors."

Last year, scientists in the Public Health Service — the doctors who oversee food and drug safety — were moved from the civilian whistleblower rights into the military whistleblower protection. This new law will impact them as well.

The bill appears to have bipartisan support and GAP is optimistic for its future.

"It's just how many more teeth will we get in it," Devine said. "Right now, it's kind of like each chamber of Congress has a good half-a-loaf. Both bills would be closing loopholes that were closed in the Whistleblower Protection Enhancement Act. Both bills would increase the statute of limitations from the current 30 days, which was hopelessly unrealistic to 180 days — six months. The House bill would raise the burdens of proof, so that you have the same rules of the game to prove your case as the civilian workers."

In addition, Warner has introduced amendments to the Senate bill that would guarantee whistleblowers have an administrative day in court.

"Right now, what they do is wait for an inspector general investigation," Devine said. "This would give them a chance to actually get in there and defend themselves, confront their accusers, present witnesses and evidence on their behalf and have a fighting chance for justice when they defend the public on the battlefield."

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