[Congressional Record (Bound Edition), Volume 155 (2009), Part 16]
[Extensions of Remarks]
[Pages 21946-21947]
[From the U.S. Government Publishing Office, www.gpo.gov]




                        WHISTLEBLOWER PROTECTION

                                 ______
                                 

                       HON. CHRISTOPHER H. SMITH

                             of new jersey

                    in the house of representatives

                     Wednesday, September 16, 2009

  Mr. SMITH of New Jersey. Madam Speaker, today I am re-introducing 
legislation that would close a loophole in the Department of Defense's 
whistleblowers' protection statue (10 U.S.C. Sec. 2409) and expand this 
safeguard to include the men and women of the DOD contracting business 
who report abuses to their superiors.
  Under current law, an individual is only protected--and therefore 
eligible for remedies--if he or she reports workplace security concerns 
to ``a Member of Congress or an authorized official of an agency or the 
Department of Justice.'' While I understand the importance of 
encouraging individuals to take their concerns to certain authorities, 
I believe it is imperative that we include in this authority an 
employee's superiors.
  It seems only natural, that once someone recognizes a problem within 
their work environment, they report it to their superiors. This is part 
of a normal progression of attempting to resolve issues and challenging 
tasks on the job. Few people initially contact their Congressman or the 
Department of Justice when they first observe an irregularity on the 
job.
  It is also important to note that many former military members 
migrate to the security contracting industry. Many of these men and

[[Page 21947]]

women have years of previous service to our nation, have grown to 
respect their chain of command and understand the benefit it can 
provide in the workplace. When they have come to the conclusion that 
additional steps must be taken or when they have identified a 
significant problem in the work environment, these professionals are 
trained and encouraged to report their concerns to their superiors to 
enable them to assess the situation and foster a solution.
  Similarly, many in the federal security contracting industry come 
from a law enforcement background with a comparable command structure 
and respect for their superiors.
  The current loophole was brought to my attention by a New Jersey 
resident who worked for a private security firm that guards military 
installations in my district and throughout the country. This 
individual witnessed and documented a number of events that raised 
serious concerns regarding the contractor's ability to ensure the 
safety and security of the base and the surrounding community.
  At my request, the DOD IG performed an audit of the contract (Report 
No. D-2009-045) and verified many of the claims that this individual 
brought to my attention. The report found that the Navy was not able to 
provide documentation showing all contractor security guards had 
completed a basic background check--raising questions as to whether or 
not the required security checks were performed or completed for all 
security personnel guarding the munitions depot. There was also a 
problem with training, and an inability to determine whether or not the 
training was adequate. There was nothing in the files to find out 
whether a guard has had the training that is required by Federal law 
and Federal regulations.
  The individual who brought this loophole to my attention reported to 
his employer what he believed--and what the IG report verified--were 
unfulfilled contract requirements that resulted in questions regarding 
the firm's ability to provide adequate security. After his boss 
dismissed his concerns, he then scheduled a meeting with the base 
security personnel to discus the matter. Before this meeting could 
occur, the individual was fired by the firm and barred from the base. 
At that time, he brought these concerns to me. However, since the law 
requires that a potential whistleblower be a current employee at the 
time he/she discloses pertinent information to a federal official, it 
was too late for him to be eligible for protections and/or remedies.
  Specifically, my legislation would expand the universe of those to 
whom an individual can properly report concerns to include the 
individual's chain of command, before and after any retribution, so 
that the individual will be protected and have the right to be 
reinstated if an investigation shows that the individual was punished 
for bringing the matter to the attention of proper authorities.
  The legislation I re-introduced today will ensure that those who 
identify problems within firms subcontracted by DOD are still afforded 
standard whistleblower protections even if they notify their employer 
about possible violations before they notify an agent of the federal 
government. The legislation does not require employees to notify their 
employer first and it does not preclude them from contacting federal 
officials, it simply protects employees who point out potential 
violations to their employer, the federal government or both. If an 
employee is dismissed prior to his/her notifying the government, but 
after notifying their employer, they will receive the necessary 
protections as well.
  Base security is not an issue to be taken lightly--anywhere and 
including in my state of New Jersey. As we all recall, the New Jersey 
U.S. Attorney's office arrested five men who were planning to attack 
another New Jersey installation, Fort Dix. After a thorough and 
aggressive law enforcement effort this attempted terror attack was 
thwarted and the men were found guilty on charges of conspiracy to harm 
U.S. military personnel. Still, the vulnerabilities at our military 
bases exposed by this incident cannot be minimized or dismissed.
  As we are all aware, in recent years the Department of Defense has 
looked increasingly to private security contractors to guard and police 
our military installations across the country. The men and women 
filling these positions deserve to be protected when they report 
violations and concerns to their superiors and especially if they are 
subsequently punished in an attempt by their employer to downplay or 
even cover up a violation. It is imperative that we amend the law to 
ensure that these employees are eligible for the same remedies as other 
whistleblowers.

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