In departure from Rumsfeld era, Pentagon aims to toughen whistleblower protections

The Pentagon has released new rules to better protect uniformed employees from retaliation if they report wrongdoing, despite the Bush administration’s opposition to similar efforts in Congress — an opposition based on what it views as potential harm to national security.

The conflicts in Iraq and Afghanistan have amplified the role of whistleblowers, who have sounded alarms in cases ranging from the Abu Ghraib prison scandal to widespread contractor fraud.

{mosads}In a 16-page Pentagon directive dated July 23, Deputy Secretary of Defense Gordon England mandated a series of safeguards for agency whistleblowers, effective immediately. The directive marks what some watchdogs call a sharp change from the policies under former Defense Secretary Donald Rumsfeld.

“Unlike former Secretary Rumsfeld, who dismissed the role of whistleblowers, Secretary Robert Gates appears to be much more concerned about receiving unvarnished information from the field,” Public Employees for Environmental Responsibility (PEER) said in a statement. PEER, a national alliance of local state and federal resource professionals, released the directive on its website.

According to PEER, the new rules are in many respects stronger than existing protections for civil servants outside the Pentagon. Officers and civilian supervisors who are found to have restrained or reprimanded whistleblowers will face punishment. In addition, the Pentagon is preparing regulations to make whistleblower retaliation explicitly punishable under the Uniform Code of Military Justice as an act of insubordination.

Tom Devine, the legal director of the nonprofit public interest group the Government Accountability Project (GAP), said the most significant aspect of the directive is the fact that it establishes accountability for those who retaliate against whistleblowers. “This is potentially a breakthrough in accountability,” he said. It could also serve as an “encouraging precedent” to eventually strengthen civilian whistleblower protection at the Pentagon, Devine added.

The directive also mandates that the office of the inspector general of the respective military branches investigate whistleblower complaints within 180 days. The rules provide for oversight of all such investigations by the Defense Department’s inspector general. In addition, any decision flowing from these investigations may be appealed to the secretary of defense.

The Pentagon leadership is also extending whistleblower protection regulations to cover disclosures made within the military chain of command, as well as disclosures made to Congress or inspectors general.

“In some very important ways, Secretary Gates is providing for stronger protections for Defense employees than exist presently for the civilians working inside other federal agencies,” said PEER executive director Jeff Ruch. “If this level of openness can be encouraged within our military branches, surely it can be extended to civilian agencies without impeding the efficient administration of government.

“Secretary Gates deserves congratulations for taking decisive steps to improve accountability within our military services,” he added. “This is a crucial time for our people on the front lines to know that telling the truth is expected and suppressing the truth will not be tolerated.”

It is ironic, Ruch noted, that Gates is strengthening certain safeguards while the Justice Department is opposing similar measures in Congress, namely a strengthening of the Whistleblower Protection Act.

Already in 2005, the Project on Government Oversight reported that “a series of crippling judicial rulings have rendered the Act useless, producing a dismal record of failure for whistleblowers and making the law a black hole.”

Accordingly, several public interest groups and watchdog advocates have upped the pressure in Congress to revamp federal whistleblower protection. In March, the House took a step in that direction when it passed the Whistleblower Protection Enhancement Act, sponsored by Rep. Henry Waxman (D-Calif.), by a vote of 331-94.

On the Senate side, the Homeland Security and Governmental Affairs Committee marked up its version of the act in June, but the legislation will not hit the floor until September at the earliest. The Senate measure, sponsored by Sen. Daniel Akaka (D-Hawaii), is the same legislation that was attached to the 2007 defense authorization bill before it was dropped in the conference process.

And last week, when Congress passed legislation implementing numerous recommendations of the 9/11 Commission, the bill included whistleblower protections for transportation security and safety employees.

“This legislation will make a real difference in the safety of our highways and rails,” GAP’s Devine said. “Whistleblowers are America’s first line of defense, literally where the rubber meets the road. Whistleblowers in the transportation sector serve as America’s first line of defense against another 9/11 tragedy.”

GAP has been one of the groups at the forefront pushing for a change in the Whistleblower Protection Act.

Meanwhile, Sen. Claire McCaskill (D-Mo.) succeeded in including a provision in the 2008 defense authorization bill that would toughen current protections for defense contractor employees by expanding the definition of the information that can be disclosed.

The provision would ensure a timely review of reprisal claims in cases of contractor retaliation, crack down on contractors proven to have retaliated against whistleblowers, and require contractors to notify employees of their rights. According to McCaskill, loopholes in the law do not adequately give federal contract workers the same whistleblower rights as federal employees.

“Employees of private contractors in Iraq have witnessed all kinds of fraud, waste and abuse,” McCaskill said recently.
“They desperately need stronger whistleblower protection so they can help us stop the incredible waste of taxpayer dollars.”
The defense authorization bill is currently stalled in the Senate and will be resumed in September, when lawmakers return from the August recess.