[Congressional Record Volume 153, Number 194 (Tuesday, December 18, 2007)]
[Senate]
[Pages S15895-S15896]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   NATIONAL DEFENSE AUTHORIZATION ACT

  Mrs. McCASKILL. Mr. President, this chamber approved the fiscal year 
2008 National Defense Authorization Act. I am particularly pleased with 
the inclusion of an important provision contained in section 846 of the 
legislation to modernize the whistleblower protections afforded to 
defense contractor employees. At a time when reports of fraud, waste, 
and abuse in defense contracts are rampant, it is absolutely vital that 
we have in place the types of whistleblower protections for contractor 
employees that I will empower them in reporting such abuse and 
therefore will protect those who wish to protect American I taxpayer 
dollars.
  I would like to thank Senator Collins for working with me on this 
important provision and further thank Senators Levin and McCain for 
their leadership and stewardship of this provision through the Senate 
and conference-considerations of the Defense Authorization Act.
  I come to the floor, however, to make one explanatory clarification 
as to the final language of this amendment because I think it critical 
that the record be clear as to the intent of the Congress. Last year in 
Garcetti v. Ceballos, the Supreme Court canceled constitutional 
protection for speech made within the normal course of an employee's 
execution of his or her job duties, specifically because those 
disclosures are covered by other whistleblower statutes. There should 
be absolutely no confusion that the Congress believes that the logic 
and holding of Garcetti is inapplicable to the defense contractor 
whistleblower protection statute, 10 U.S.C. 2409, as amended by section 
846 of this act.
  Disclosures taken to carry out job responsibilities, within the 
normal course of an employee's duties, are protected by this provision 
for three core reasons. First, they are essential preliminary steps for 
a responsible disclosure to the government. Second, often they in fact 
are indirect disclosures to Government inspectors, auditors, and 
investigators who must study associated internal corporate records to 
engage in informed oversight. Third, the purpose of whistleblower 
statutes is to reduce waste. But waste would be maximized if employees 
had to avoid their own organizations and go straight to the Government 
in order to avoid waiving their whistleblower rights. The law's goal is 
maximized by employees being empowered to safely

[[Page S15896]]

work within their employment structure, as a first step, so contractors 
can clean their own houses. Any reading that would exclude disclosures 
within an employee's internal chain or command would simply be an 
illogical, exceedingly narrow reading of the statute. Congress fully 
intends the employee protections, as amended, to be interpreted to 
include disclosures within the employee's company.
  I thank my fellow Senators for joining Senator Collins and me in our 
efforts to protect whistleblowers and provide greater contractor 
accountability and oversight.

                          ____________________