Department of Defense
The deployment of the National Guard to disperse peaceful protestors for a presidential photo-op, followed by sending unnamed paramilitary officers to Democratic-run cities to detain unarmed racial justice protesters in unmarked vehicles, demonstrates the power, and the danger, of a politicized Department of Defense to threaten the fabric of our democracy. The military should never be used against its own citizens who are engaging in constitutionally protected activities.
The risk that the resources of the Department of Defense will be used to send troops to monitor polling places, or even to resist a peaceful transition of power by rejecting election results and confronting protestors, cannot be dismissed.
Department of Defense employees aware of wrongdoing should reach out to the experienced attorneys at Government Accountability Project to receive assistance in disclosing the truth in a manner that maximizes the impact of the information and minimizes personal reprisal.
What to Know Before Blowing the Whistle
Each whistleblower case is unique, requiring an analysis of the facts before a legal strategy is determined. While the following information is neither comprehensive nor should be construed as offering legal advice, it offers some basic guidance on whistleblower rights before reaching out to experts at Government Accountability Project to further assist you.
What is Whistleblowing?
A whistleblower is an individual who discloses information that he or she reasonably believes evidences a violation of law, rule or regulation; gross mismanagement; a gross waste of funds; abuse of authority; or a substantial and specific danger to public health or safety.
Disclosures of "Lesser" Misconduct and Policy Disagreements
If the misconduct does not fall into a category of concern as outlined above, it does not mean that the concern isn't important, valid, or even corrosive to workplace integrity. Likewise, an employee may have a legitimate dispute about a decision of management.
However, if an employee’s concern is not about legal violations, gross mismanagement, a gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety, the disclosures would not rise to a level that would meet the standard of “whistleblowing” protected under the Whistleblower Protection Act (WPA) or most other whistleblower protection laws.
Similarly, if an employee’s disagreement with a policy decision is rooted in a difference of opinion, rather than about the specific consequences of the policy decision that the employee reasonably believes would result in legal violations, gross mismanagement, gross waste of funds, abuse of authority or a substantial and specific danger to public health or safety, that policy disagreement would not constitute protected whistleblowing under the WPA.
Whistleblower Rights and Remedies
While various rights and remedies exist in both federal and state laws to encourage workers to blow the whistle on serious abuses, the legal landscape is complicated. No single law protects all whistleblowers; instead, a patchwork of more than 60 federal statutes and numerous state and local laws provide redress. Each law has different remedies, different procedural steps, and different paths for enforcement. Not only can it be difficult to evaluate available legal options depending on each unique set of facts—analysis requires assessing, among other factors, the type of worker one is, which agencies are involved, the content of the disclosure, to whom the disclosure should be (or was) made, and what kind of reprisal was suffered--but it can also be difficult to navigate the legal process once a particular path is chosen.
Below we highlight the primary laws that support the rights of employees and contractors to report serious misconduct they witness on the job.
This list is not comprehensive--it focuses primarily on those legal protections that might apply to employees reporting concerns related to efforts to undermine the election. We strongly encourage anyone thinking about blowing the whistle to seek advice from an attorney experienced in representing whistleblowers.
The Whistleblower Protection Act
The Whistleblower Protection Act is the primary law that gives most federal employees, those in the competitive service merit system, the right to report serious wrongdoing free from reprisal. The WPA gives most federal employees the right to disclose information, both internally to co-workers, managers, organizational hotlines, or an agency Inspector General, Congress, or agency enforcement offices, and absent statutory bars or classified status, externally to the media, or watchdog organizations.
Employees who are charged with investigating and disclosing wrongdoing as part of their job duties are protected under the WPA for “duty speech”--reporting concerns in the course of doing one’s job about illegality, gross mismanagement, gross waste of funds, abuse of authority, a substantial and specific danger to public health and safety, or censorship of scientific research that would result in such abuses, though an employee would have to show the employer intended to retaliate because of their whistleblowing.
Employees may not publicly report classified or other information prohibited by law from disclosure, but rather must report through alternative, lawful channels, such as an agency Inspector General or the Office of Special Counsel.
Military Whistleblower Protection Act
The Military Whistleblower Protection Act (MWPA) protects servicemembers from reprisal when reporting serious wrongdoing. Under the MWPA, servicemembers can lawfully communicate information concerning a violation of law or regulation, gross management, a gross waste of funds, abuse of authority, a substantial and specific danger to public health or safety, and certain threats by another member of the armed forces or employee of the federal government.
For whistleblower disclosures to be protected under the MWPA, they must be made to a Member of Congress; an Inspector General; a member of a Defense Department audit, investigation, or law enforcement organization; or a person in the service member’s chain of command. Reports of retaliation are made to the Defense Department Inspector General or the inspector general for the relevant branch of the military, which is required to investigate the retaliation claim “expeditiously” under law. The burden of proof is placed differently in military whistleblower retaliation cases than it is in civilian cases. Essentially, military whistleblowers must prove that they were illegally retaliated against, whereas in civilian cases the agency must prove that they did not retaliate.
In the course of investigating the retaliation claim, the IG must also investigate your underlying disclosure of misconduct if an investigation isn’t already taking place, or if the investigation is inadequate. Within 180 days, the IG must report the status of your retaliation claim to you, to the secretary of defense, and the secretary of the relevant military branch. The IG must continue to send updates every 180 days until the investigation is complete.
The MWPA process for investigating disclosures and claims of retaliation is exceedingly complex, with specific processes and timelines at each step. Servicemembers who observe wrongdoing or who suffer reprisal for lawfully reporting wrongdoing are encouraged to reach out to expert attorneys at Government Accountability Project who will help to minimize the risk of reprisal while maximizing the power of the information.