Finally, Some Protections for Our Brave Military Whistleblowers
by MANDY SMITHBERGER
Military whistleblowers will soon have greatly expanded protections thanks to language included in the National Defense Authorization Act for Fiscal Year 2017 fought for by the Project on Government Oversight and our bipartisan allies in civil society.
The inclusion of these provisions is an important step toward making sure service members who expose waste, fraud and abuse are protected from all forms of retaliation.
One of the biggest reforms included in the bill protects military whistleblowers from retaliatory investigations, which has increasingly become a tactic to intimidate and punish those who expose wrongdoing. POGO most recently saw this in the case of Lt. Col. Jason Amerine, a war hero who blew the whistle on the United States’ dysfunctional hostage recovery process to Rep. Duncan Hunter, a California Republican.
Unable to retaliate against a committee or a member of Congress for this embarrassing revelation, the FBI and the Army exacted revenge against Amerine by revoking his security clearance and launching a retaliatory investigation.
Thanks to significant intervention from Katz, Marshall & Banks, POGO and Representatives Hunter and Jackie Speier — a California Democrat — plus Senators Chuck Grassley of Iowar and Ron Johnson of Wisonson, both Republicans, that investigation happily concluded last year with Amerine being allowed to retire from the Army with full honors, including the prestigious Legion of Merit medal.
He would have had even stronger support in avoiding this illegal retaliation, however, if these new protections had been in place.
The bill also adds protections against the threat of unfavorable actions and withholdings of favorable actions, in addition to protections against unwarranted changes in duties and mechanisms to prevent superiors from failing to respond to retaliatory action or harassment.
Beyond expanding prohibited actions, the bill also includes a number of reforms to improve the integrity of retaliatory investigations. This includes requiring the Defense Department inspector general and military service inspector generals to develop uniform procedures for conducting military whistleblower investigations and training staff, and the establishment of a uniform training curriculum for correction-board members and requiring timely retraining.
Additionally, in response to 2015 Government Accountability Office report that found the average retaliatory investigation took 526 days and provided no notice to the status of the cases for over 50 percent of whistleblowers, the bill strengthens notice requirements for the untimely completion of Pentagon inspector-general whistleblower reprisal investigations.
These changes should help ensure the fair and consistent application of military whistleblower protection laws.
The bill also:
- Grants inspector generals the authority to notify the appropriate military service Secretary of all active investigations, providing the opportunity to shield service members from retaliation during investigations
- Restricts instances of contrary findings of prohibited personnel action by the relevant military service secretary concerned
- Assists service members in filing claims by detailing the specific information or documents they must attach to make a claim reviewable
- Requires correction boards to make reasonable efforts to obtain medical or personnel records to help whistleblowers be made whole if a service member is unable to obtain them
- Removes the one-year statute of limitations for reconsideration of correction-board decisions, allowing for the consideration of new evidence
- Requires the publishing of final correction-board decisions, assisting service members and building case law
- Clarifies the right of service members to seek judicial review of correction-board decisions in federal court
Finally, the bill requires the Government Accountability Office to review the integrity of the Department of Defense inspector general’s whistleblower program. This provision was inspired by whistleblowers within the Pentagon inspector general’s office, including former assistant inspector John Crane, who believed the office mishandled cases and improperly retaliated against whistleblowers.
This September, POGO testified before the national security subcommittee of the House Oversight and Government Reform committee about our additional concerns with that program, including how misconduct, a toxic culture towards whistleblowers and improper intervention in investigations resulted in questionable outcomes for whistleblowers.
Unfortunately, the final bill does not include a provision to give military whistleblowers the same burden of proof afforded to civilians. In the military, the burden is placed on our service members to prove that they were illegally retaliated against, compared to in civilian cases where the burden is placed on the agency to prove there was no retaliation.
We believe this is one contributing factor to low substantiation rates for military whistleblower reprisal cases.
Taxpayers and whistleblowers have the House and Senate Whistleblower Caucuses to thank for these overdue reforms. Co-chairs Representatives Speier — a California Democrat — plus Republican Mike Coffman of Colorado, Republican Rod Blum of Iowa and New York Democrat Kathleen Rice all led the fight for enhanced protections in House.
In the Senate, these provisions were championed and added by Senators Barbara Boxer, a California Democrat, plus Iowa Republican Charles Grassley Democrat Ron Wyden of Oregon, Democrat Edward Markey from Massachusetts, Montana Democrat Jon Tester, New York Democrat Kirsten Gillibrand, Ron Johnson, the Wisconsin Republican and, finally, Iowa Republican Joni Ernst.
Whistleblowers who report concerns that affect our national security must be lauded, not shunned or, worse, harmed. POGO is glad the House and Senate Armed Services committees have adopted these overdue reforms to come closer to ensuring that whistleblowers can successfully step forward to expose and stop wrongdoing — and be confident that they will not suffer retaliation as a result.
We look forward to making sure they are interpreted and enforced as Congress has intended, which unfortunately has not always been the case.
Mandy Smithberger is the director of the Straus Military Reform Project at the Project on Government Oversight in Washington, D.C. Originally published at www.pogo.org.