Academic journal article Labor Law Journal

Protecting Whistleblowers in the Uniformed Services: A Unique National Security Dilemma

Academic journal article Labor Law Journal

Protecting Whistleblowers in the Uniformed Services: A Unique National Security Dilemma

Article excerpt

I. Introduction

In February of 2013, Private First Class Bradley Manning pled guilty to 10 criminal charges stemming from the largest national security leak in the history of the United States.1 Three years prior, PFC Manning released hundreds of thousands of documents taken from a secured network while he was working as an Army Intelligence Analyst in Iraq.2 These documents included military incident reports from Iraq and Afghanistan as well as a 2007 video of an Army helicopter firing on a group of civilians in Iraq.3

Additionally, PFC Manning released non-military files, including over 250,000 diplomatic cables showing daily traffic between the State Department and some 270 embassies across the world, which proved embarrassing at the very least for the United States.4 PFC Manning stated in court that he released the military and diplomatic files to help enlighten the public about "what happens and why it happens" and to "spark a debate about foreign policy."5 He also stated that he didn't believe that the public release of the cables would damage the United States.6

On August 21,2013, PFC Manning was sentenced to 35 years in prison following his conviction on multiple charges, including violations of the Espionage Act.7

Nevertheless, PFC Manning has been lauded as a hero by whistleblower-advocates and anti-war groups.8 The story of PFC Manning begs the question: why did this happen? From there it must be determined whether our current system contributed to this, or whether this was a unique event, that no level of protection, or ease of communication to an Inspector General (IG) or to Congress, would have prevented. Part II of this paper will discuss current laws that affect 'whistleblowing' by servicemembers. Part III will discuss the need for military whistleblower protection laws and improvements needed in the face of a unique military culture. Part IV of this paper will discuss problems concerning the implementation of whistleblower laws, their causes, and possible solutions. Lastly, Part V will consider national security issues stemming from military whistleblowers and propose changes that allow for better national security protection in reporting directly to Congress. For purposes of this paper, "servicemember" refers to all commissioned and warrant officers, and all enlisted members of the Army, Air Force, Navy, Marine Corps and Coast Guard in any Regular, Reserve or National Guard organization or unit.9

II. Current Laws Affecting Servicemembers

There are a number of laws that come into play when considering whistleblowers within the military. The primary law that affects servicemembers, which will also be the focus of this section, is the Military Whistleblower Protection Act (MWPA).10 However, this section, and the sections hereafter, will consider the interplay of other federal laws with the MWPA.

A. Military Whistleblower Protection Act

The MWPA was originally passed in 1988 by then Congresswoman Barbara Boxer as an amendment to the FY 1989 Defense Authorization Act." The MWPA has had several minor amendments since to include protections for disclosures to auditors, criminal investigators, inspectors, and other Department of Defense law enforcement officers in 1991, to extend coverage to sexual harassment and discrimination in 1994, and, more significantly, in 1998, by giving authority to Military Department IGs to grant protection and conduct investigations in reprisal allegations.12 However, the roots of the MWPA go back much further. The precursor to the MWPA was enacted in 1951 when Congressmanjohn Byrnes brought military whistleblower protections as an amendment to the Universal Military and Training Act of 1951.13 Congressman Byrnes brought forth the amendment upon discovering that military members were not allowed to communicate directly with Congress after receiving a letter from a constituent whose son was in the Navy.14

The essence of the MWPA comes in two parts. …

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