To Safeguard the Military, Congress Must Protect Whistleblowers

This year the Department of Defense requested $585.3 billion from taxpayers, but it is no secret that Pentagon spending is rife with waste, fraud and abuse.

As Congress considers raising the debt ceiling yet again this fall, it’s essential for taxpayers to know that this money will be spent responsibly and that leaders are setting budgetary priorities instead of rubber-stamping wish lists.

Necessary oversight depends upon the ability of those on the front lines to blow the whistle on waste and mismanagement of funds without fear of reprisal. However these courageous military whistleblowers are endangered, not by some far-flung enemy, but by their own superiors.

The Department of Defense is the only federal agency unable to pass a single audit since the government began the practice over 20 years ago. Congress’s watchdog, the Government Accountability Office, has identified more than 1,000 recommendations for reforms to save taxpayer dollars that the Department of Defense has yet to implement.

By 2011, the Wartime Contracting Commission estimated that there was at least $31 billion and as much as $60 billion in waste connected to operations in Iraq and Afghanistan.

The former Special Inspector General for Iraq Reconstruction told the Center for Public Integrity that he largely credits tips from whistleblowers for his ability to uncover crimes on overseas government contracts in Iraq. However, most of those whistleblowers were not willing to be identified in court documents due to their fear of retaliation.

Military whistleblowers are vital to managing our enormous investment in the Pentagon. Even more important, they are key to protecting our national security and the lives of our service members.

However, these brave Americans face a unique set of challenges when they come forward to report fraud, waste, abuse and illegality within the armed services. Congress addressed many of the most significant shortfalls for civilian whistleblowers when it passed the Whistleblower Protection Enhancement Act in 2012. But the safeguards for members of the military to exercise their constitutional rights remain hopelessly antiquated.

One expert told a Senate committee last month that such provisions remain “the lowest common denominator in the U.S. code for accountability.”

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Above — a U.S. Black Hawk over Afghanistan on July 29, 2015. Resolute Support photo. At top — Congress. Kevin Burkett/Flickr photo[/caption]

Military whistleblowers often face retaliation from their superiors in return for their service to the public. Capt. Joshua Wilson and Maj. Jeremy Gordon told Congress that F-22 pilots experienced oxygen deprivation, disorientation and other adverse health effects. As a result, the Air Force retrofitted the entire fleet and altered procedures to enhance pilot safety. But the two whistleblowers were removed from flying the F-22, and Wilson’s piloting career was brought to a standstill.

According to the GAO, as of last year, there were 822 open military whistleblower reprisal complaints.

Perhaps more alarming than the shear volume of cases, an internal review conducted by the DoD IG found its own staff had mishandled more than half of the military whistleblower reprisal cases they reviewed.

Reprisals, prolonged investigations and a culture that discourages whistleblowing all conspire to produce a less effective, less safe and ultimately more expensive military system. However, sections in both versions of the National Defense Authorization Acts would go a long way to improving how whistleblower cases are handled within the armed services.

The House’s bill would update military whistleblower protections to apply the bipartisan-supported civilian Whistleblower Protection Act language, shifting the burden of proving reprisal from military whistleblowers to agency officials accused of retaliating.

The DoD IG supported this change in 2014, as a way to achieve consistency in legal standards in all of its whistleblower inquiries.

Independence is essential to the integrity of reprisal investigations, but the recent GAO report found that there was no process for investigators to document whether their process was independent and outside of the chain of command. The Senate’s bill addresses this by requiring investigators to certify, in writing to the Inspector General, that they did not have a conflict of interest with either the complainant or witnesses in a retaliation complaint.

Some say that given the critical life-or-death decisions members of the military must make every day, applying civilian whistleblower laws to them is a poor fit. Actually, the opposite is true — nothing is more corrosive to morale and unit cohesion than tolerating reprisals from higher-ups against service people whose sense of honor requires them to speak out against wrongdoing.

Reforming how the armed services handle whistleblowers will help to safeguard the billions of dollars (and millions of lives) invested in military programs, through exposing problematic equipment, procedures and leadership. It is imperative that the conference committee between the House and Senate maintain the integrity of these provisions in the final NDAA.

Danielle Brian is the executive director of the Project On Government Oversight. Pete Sepp is the president of the National Taxpayer’s Union.