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Buffalo News: Military Whistleblowers Need Protections

March 21, 2007
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Written by GAP Legislative Representative Adam Miles. Note: A version of this op-ed also appeared in the following outlets: Salem Statesman-Journal (OR), The Courier (OH).

When asked why outpatient soldiers at Walter Reed hospital were willing to speak so candidly to the press about indefensible conditions, the reporter who broke the story responded simply, “Nobody listened to them for years.”

This is typical of any scandal involving a large, unresponsive bureaucracy. The neglect and mistreatment should have been addressed years ago, when more and more wounded began returning from Iraq. No one listened to the problems, or worse, there was no one for the troops to safely tell. So the problems lingered and worsened with time.

This lack of adequate responsibility and accountability is becoming a tragic habit. A litany of pre-9/11 warnings from national security whistleblowers was ignored, as were reports questioning levee stability in New Orleans prior to Hurricane Katrina.

Our soldiers, marines, sailors and airmen deserve a communications structure in which warnings spark responses, responses that can prevent disasters. That means Congress must change the 1988 Military Whistleblower Protection Act (MWPA) into a law that realistically helps whistleblowers.

Strong whistleblower laws should be the bureaucracy’s best friend. They allow for the free flow of information while protecting sources, and they trigger corrective action to address problems. Nearly all military whistleblowers attempt to address their concerns through command ranks before going public. When a scandal breaks in the media, it exposes the failure of internal safeguards. The goal of whistleblower protection statutes is to prevent scandals, not to start public controversy.

Unfortunately, the U.S. government and our military simply do not, and never have, accepted that premise.

The MWPA has never been thorough or strong enough to achieve this goal. Only following the Abu Ghraib prison scandal was it amended to clarify that disclosures made to supervisors qualify for protection. This type of rolling reform is helpful, but the law needs to be overhauled to guarantee institutional accountability for our troops. Military personnel face a catch-22: they have legal obligations to disclose evidence of wrongdoing, but proceed at their own risk when honoring this duty.

Consider the case of Lt. Jason Hudson, a Navy officer formerly in charge of recruiting in parts of six states. He was ordered by written directive to instruct 130 recruiters under his command to reject otherwise qualified minority applicants based strictly on their race. The Navy’s goal in issuing the directive was to achieve “appropriate racial balance” in its ranks, but the outcome of implementing the nationwide policy was unmistakable discrimination against African-Americans and other minority applicants. It meant a black applicant could score higher on the Navy’s entrance exam than a white applicant, but be rejected while the white applicant was accepted.

Hudson voiced his concerns repeatedly to superiors, and the misguided policy was rescinded six weeks after it was issued, due to Navy concerns about potential “media questions.” After extensive stonewalling, Navy lawyers reluctantly conceded the policy was “legally indefensible.” It was time for a commendation or at least some positive reinforcement. But that didn’t happen.

Instead, officers implicated in the racial discrimination led the ensuing investigation and refused to overturn the retaliatory actions that had been taken against Lt. Hudson. He was immediately demoted from his position and, on the day before he was to speak with investigators, was issued a career-ending performance report by a senior officer who knew of his imminent testimony. After an exemplary career that includes enlisted service in the first Gulf War, Lt. Hudson will be forced to leave the Navy without retirement benefits if he is denied promotion later this year.

The Navy held no one accountable for the policy or the mishandled investigation, and refused to identify or offer redress to the applicants rejected because of their minority status. Without structural reform, one can be sure discrimination, cover-ups and whistleblower reprisal will occur again.

Last month, the House Oversight and Government Reform Committee unanimously approved legislation amending the Whistleblower Protection Act for federal workers. If passed, the legislation would be a historic breakthrough for whistleblower rights. A similar effort is needed to enhance protections for military personnel.

The events at Walter Reed have shown us that now, more than ever, we need to listen to our troops. Anything less is dishonorable.

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