This year, legislation has been drafted in both the U.S. House of Representatives and the Senate in an effort to bolster the provisions of the Military Whistleblower Protection Act of 1988 (MWPA), which provides limited and narrow protection of lawful disclosures made by those serving in the United States Armed Forces. Earlier this week, nearly 50 whistleblowers and organizations sent a joint letter to Congress calling for an overhaul of the MWPA.
Due to the toothlessness of the current law, hundreds of whistleblowers each year have been subject to acts of reprisal upon utilizing these lawful channels – which only ostensibly provide protection. In reality, there are five crucial issues with the MWPA as it stands today:
1. The lack of timely results: While the Department of Defense (DoD) Office of Inspector General (OIG) must lawfully complete investigations within 180 days, the average time is instead 451 days – with some cases languishing for up to five or six years.
2. The poor quality of investigations: The DOD OIG currently only investigates 29% of complaints, and legally sufficient supporting evidence has only been found in 5% of cases; furthermore, less than half of the cases follow proper procedural protocol, which itself has not been updated since 1996.
3. Poor prospects for relief: More than a 50% decline in OIG backing of reprisal claims from 2006 to 2011, with less than 1% of supported complainants actually obtaining relief.
4. Poor burdens of proof: 65% of complainant losses are based on adverse personal data that becomes uncovered during the OIG investigatory process.
5. Lack of due process: since 1988, not one Board of Correction of Military Records (BCMR) has granted a request for a due process hearing.
In order to prevent further cases of injustice, Senators Mark Warner (D-Va), Charles Grassley (R-Iowa), Susan Collins (R-Maine) and Tim Kaine (D-Va) have introduced an amendment to the National Defense Authorization Act (NDAA) for Fiscal Year 2014. The measure would provide relief for those retaliated against while also disciplining those who carry out such acts of retaliation.
in the joint letter sent on Tuesday, Nov. 19, whistleblowers and their advocates wrote to members of the senate and urged them to support the Warner-Collins-Kaine-Grassley Amendment. They asserted: “Our troops have been promised protections for reporting wrongdoing, but those have not materialized. It has been well-documented that the law that is supposed to protect them is disgracefully inadequate,” citing scores of unresolved whistleblower and sexual assault retaliation cases.
Concurrently, Representatives Jackie Speier (D-Ca) and Mike Coffman (R-Co) introduced a parallel measure – the Speier-Coffman Amendment – that was adopted in the House version of the NDAA for FY 2014.
The House and Senate amendments attempt to strengthen whistleblower rights through key legislative provisions, including:
1. Longer statute of limitations: From 60 days to six months
2. Larger protected audiences: To include testimony to congressional and law enforcement staff, courts, grand jury, and court martial proceedings
3. Closed loopholes for protected speech: The reforms would address the same loopholes that were eliminated in the civil service WPEA
4. Greater protection against harassment: Including the retaliatory removal of duties inconsistent with rank
5. Independent service Office of Inspector General (OIG) investigations: Cases must be investigated by an organization higher than and removed from the area of alleged harassment (only in Senate amendment)
6. Administrative due process hearings: Each member have the right to BCMR administrative due process hearings (only in Senate amendment)
7. Burdens of proof: OIG probes and BCMR hearings be governed by the WPA burdens of proof (only in House version)
8. Judicial Review: Judicial review to appeal administrative rulings (only in House version)
Regrettably, the House Judiciary Committee removed two key provisions from the Speier-Coffman amendment: 1) protection for supporting witnesses, and 2) a right for whistleblowers to challenge illegal retaliation at administrative due process hearings, which currently are discretionary and never have been held since 1988. The House bill does, though, provide for a higher burdens of proof standard which approaches that of the International Best Practices for Whistleblower Policies.
The bicameral legislative effort is particularly noteworthy this year, given the ongoing sexual assault scandals coming out of the Armed Forces. Those who experience harassment in the military are typically unable or unwilling to come forward with their personal or witnessed experience. As stated by GAP Legal Director Tom Devine, “secrecy coupled with weak or nonexistent rights to challenge abuses of power” is what allows this to continue happening time after time. Without the proper legal backing that would be brought about by the aforementioned legislative proposals, the victims of abuse within our armed forces – a group that the public should support, not condemn – will remain voiceless, suppressed by grave instances of injustice.
Captain Swenson’s Tumultuous Road to the White House
The struggle to strengthen military whistleblower protections is an uphill battle, and it stems from a culture of systemic distrust and disdain for those who blow the whistle. In the military, “whistleblower” is synonymous with “traitor.” Those in command are quick to judge whistleblowers harshly and negatively. The retaliation that stems from these views is often difficult to define, since it manifests itself in mostly indirect ways.
For example, recent Medal of Honor recipient Captain William Swenson endured a multi-year long battle for his deserved award, while Dakota Meyer – a soldier in the same battle in Afghanistan who carried out similarly heroic actions – received his Medal of Honor in 2011: two years after the ambush in Afghanistan. While Meyer published a book, had articles written about his actions, and sat down for interviews with leading news organizations, Swenson became a forgotten hero.
But the reason that Swenson’s award was so delayed – initially “lost” in a computer system for 19 months – may stem from the fact that, following that battle against the Taliban, Swenson questioned the judgment of his higher-ups. By blowing the whistle on such serious circumstances (i.e. a truly life-or-death situation), Swenson was prone to punishment and retaliation from his superiors; in this case, there was strong speculation that the many bureaucratic mishaps that delayed his award were more than pure coincidence. Only after persistent congressional intervention by Rep. Duncan Hunter (R-CA) was Swenson’s nomination processed.
Every time a member of the Armed Forces feels the need to genuinely blow the whistle – an action that prevents further fraud, waste, abuse, and threats to public health and safety – s/he risks retaliation from superiors, as well as general disdain throughout their workplace. Whether the situation entails a captain risking his life in the battlefield or a soldier being sexually harassed on the job, there needs to be a powerful safe legal channel by which victims of injustice can voice their concerns. Congress must overhaul the existing MWPA. Otherwise, current whistleblowers who have already “committed the truth” will continue to face prolonged retaliation, and potential future whistleblowers will think twice about coming forward: a chilling effect that is truly disastrous for all.
Matthew Luongo is a Legislative Intern with the Government Accountability Project, the nation’s leadingwhistleblower protection organization.