Washington D.C. – The Government Accountability Project (GAP) today applauded the U.S. Senate for approving Sen. Claire McCaskill (D-MO) and Sen. Susan Collins’ (R-ME) whistleblower protection amendment for employees of Department of Defense (DoD) contractors (S.Amdt. 2617). The Senate approved the McCaskill-Collins measure by unanimous consent agreement on Monday, September 17, as an amendment to the National Defense Authorization Act for the Fiscal Year 2008, H.R. 1585, which authorizes nearly a half-trillion dollars for Defense Department programs. The Senate has numerous additional amendments to consider before final passage.
The McCaskill-Collins amendment builds on an earlier Committee-endorsed amendment, which created genuine whistleblower protections for DoD contractor employees.
Pentagon contracts make up 70 percent of the nearly $400 billion that the U.S. government spends annually on contracts. The McCaskill-Collins amendment covers employees working on any taxpayer-financed DoD projects, recognizing that the potential for abuse in wartime spending is not limited to traditional DoD contracts. In addition to contractors, the amendment covers grantees and other recipients of funds “for which [DoD] may be reasonably regarded as responsible to a third party,” including the citizens in Iraq or Afghanistan. The amendment also extends protections to employees who make disclosures to the Special Inspector General for Iraq Reconstruction (SIGIR), and any other Inspector General financed by or under the jurisdiction of the Secretary of Defense.
“The most important first step toward curbing wartime contracting abuses is to protect witnesses who expose corruption and waste,” stated GAP Legislative Representative Adam Miles. “The McCaskill-Collins amendment accomplishes this goal. With DoD funneling billions of dollars annually to largely unregulated companies, this is a strategic investment on behalf of the U.S. taxpayers.”
The Senate approved the whistleblower protection amendment just days before the Democratic Policy Committee is to hold a hearing on “The Mistreatment of Iraq Contracting Whistleblowers.” The hearing, scheduled for Friday, September 21, at 10:30 in Dirksen 226, will feature witnesses who have been fired, demoted, threatened, intimidated and even detained for speaking the truth about Iraq contracting practices.
The cornerstone of the amendment allows contract employees to pursue a jury trial in federal district court if they do not receive timely help against retaliation from the Department of Defense Inspector General.
“Jury trials are a whistleblower’s only genuine opportunity for a fair day in court – with justice decided by the taxpayers the employee is trying to defend,” added GAP Legal Director Tom Devine. “Sen. McCaskill and Sen. Collins are demonstrating how bipartisanship in the Senate can mean breakthroughs both for defense contractor whistleblowers and for the taxpayer. This reform could be the beginning of the end for blank checks to contractors like Halliburton.”
He added, “There is no reason why the reform should not be extended government-wide. This breakthrough is a beachhead for accountability in all government contracts and spending. Congress should act quickly to extend the defense whistleblower reforms to any taxpayer spending where the government pays corporations to handle its own duties.”
GAP is optimistic about the prospects for systematic reform. The House already passed a similar mandate for contractor accountability as provision in civil service whistleblower legislation, H.R. 985. The “Whistleblower Protection Enhancement Act” passed the House by a 331-94 vote on March 13, the day after the Bush administration threatened to veto the legislation.
Miles added, “The McCaskill-Collins amendment is a unanimously-approved Senate mandate for supporting and improving the reforms passed already this year by the House, with a veto-proof majority.”
GAP cautioned, however, that a 15-month delay during Inspector General investigations before a whistleblower has access to court could be financially dysfunctional for unemployed whistleblowers if IGs are backlogged or do not secure immediate help. GAP urged refinements to the McCaskill-Collins provision to curb the waiting time for court access to 180 days, the standard administrative exhaustion period in the House-passed legislation for contractors and government workers.
Highlights of the DoD contracting amendment also include:
- Protecting DoD contract employees for disclosing a broader scope of misconduct than under current law, including misconduct that threatens public safety or national security, as well as gross waste and mismanagement of tax dollars.
- Modernizing the legal burdens of proof for reprisal investigations so they are consistent with every major whistleblower law passed since 1989.
- Extending protected communication channels to government officials responsible for contract oversight.
- Requiring that employees working on contracts over $5 million be notified of their rights and protections.
- Holding contractors accountable by withholding award payments from contractors that retaliate against whistleblowers.