Military personnel who receive a classified information (CIO) report on the military’s operations or operations within Afghanistan will not be entitled to whistleblower protections under the whistleblower protection provisions of the National Defense Authorization Act (NDAA), the House Armed Services Committee’s (HASC) Subcommittee on Oversight and Government Reform has ruled.
In a resolution passed on Tuesday, the committee voted to make the NDAA unlawful and null and void.
The NDAA, which has been used by the military to justify troop deployments in Afghanistan, is widely considered to be unconstitutional by civil rights groups and military whistleblowers.
This year alone, more than 1,000 soldiers, sailors, airmen, Marines, and Army Special Operations Command (USSOCOM) personnel have been prosecuted under the NDIA.
The House Armed Forces Committee is the first body to consider the NDDA’s whistleblower protection requirements in a formal manner, and it has long been a thorn in the side of the military.
In recent years, the House has also passed the Military Commissions Disclosure Act of 2015, which requires military personnel to report any alleged violations of the law to the Department of Justice (DOJ).
But in recent months, the DOD and DOD headquarters have pushed back on the use of the NDTA, arguing that it does not specifically address whistleblower protections, nor does it require military personnel who seek redress to obtain an investigation.
The Military Commisons Accountability Act of 2017, also sponsored by Rep. Adam Smith (D-WA), also failed to pass the House, despite the fact that it included a similar whistleblower protection provision in the bill.
A bill that would amend the NDMA to include whistleblower protections would require military service members to be protected under whistleblower protections.
The military, however, maintains that the NDCA does not provide enough protections for military personnel, and the Committee voted unanimously to reject the Army’s proposed amendment.
“As a result of the failure of the Army to protect military whistleblowers, the NDAAA has been enacted and is law,” said committee chairman Rep. Jason Chaffetz (R-UT), a former Army lieutenant general and current chairman of the House Oversight and Investigations Subcommittee.
“The NDAA has failed to protect whistleblowers and the military has not provided the military with adequate whistleblower protections to ensure the integrity of its operations.”
Rep. Peter King (R, NY) also voted to reject an amendment that would have provided whistleblower protections in the NDA, noting that “The Pentagon has been unwilling to acknowledge its own shortcomings, despite numerous reports that its failure to protect its personnel was in fact a contributing factor in the deaths of thousands of our soldiers in Afghanistan.”
Rep Smith and Chaffetz also voted in favor of an amendment sponsored by Reps.
Matt Salmon (R–AZ), Frank Pallone (D–NJ), and David Cicilline (D, MA), which would have extended whistleblower protections from the NDPA to the next phase of military service.
“It is essential that we protect the rights of military personnel in this way, as they are the lifeblood of our country and our economy,” Chaffetz said in a statement on Tuesday.
“Bypassing this important reform will allow the Department to continue to provide a legal framework for military whistleblower protection and the protections afforded to the civilian leadership of the armed forces, and I hope that our members will take note of the importance of this bill.”
In addition to Chaffetz, Rep. Mike Rogers (R—MI), a ranking member of the subcommittee, and Rep. Jeff Miller (R–FL), a member of HASC, also voted against the amendment.
The bill passed by a vote of 233-167, with nine Democrats voting in favor, three Republicans voting against, and five Democrats absent.
The committee will then hold a public hearing on the NDUA, with members of the public and lawmakers from both sides of the aisle invited to testify.
In addition, the bill would require the Defense Department and DOD to jointly develop a plan to ensure that military whistleblowers have recourse to military tribunals to seek redress for violations of their rights.