Whistleblowers need more legal backup

Slowly it is beginning to dawn on Congress that $435 claw hammers are neither the beginning nor the end of horror stories about waste in the military establishment.

Sen. Charles Grassley (R) of Iowa has reached the conclusion that ''the vast majority of money we put into major weapons systems is pure waste.'' That perennial whistleblower, A. Ernest Fitzgerald of the Air Force, thinks the level of waste in major contracts may be as high as 30 percent across the board.

There is no one to blame but Congress. In the so-called Civil Service Reform Act of 1978, Congress made it impossible for any honest Department of Defense employee to challenge waste as Fitzgerald did on the basis of the pre-1978 civil-service laws.

Specialists in civil-service law say the most devastating blow dealt the potential whistleblower is a provision in the 1978 ''reform'' law denying the employee who is wrongfully fired reinstatement if the initial hearing required within 90 days of the firing is in the employee's favor. The effect of that is to enable the government to appeal the initial ruling.

The agency responsible for ruling on such appeals is the Merit System Protection Board, which is taking as long as three years to hand down a ruling. During that time the employee is denied unemployment compensation, confronted with defamatory statements from the former employer when he seeks new employment , and, if successful in finding new employment, faces deduction of earnings from any final settlement. In the process the employee is certain to run up legal fees in five and sometimes six figures.

The Merit System Protection Board is itself politically appointed, and thus identified with the administrators who would be embarrassed by revelations of waste and mismanagement. An ''Office of Special Counsel,'' created to protect the whistleblower, is so underfunded, understaffed, and lacking in technical proficiency regarding defense matters as to be a mockery of its intended purpose.

If, as has been occurring frequently, the Merit System Protection Board rules in favor of the government, the employee is forced to appeal to a Court of Appeals for the Federal Circuit. In the view of at least one specialist, that court is nothing more than ''a rubber stamp for the MSPB.'' And he says the court has ''publicly indicated . . . hostility to the federal employee - preferring instead more prestigious areas of the law such as patents, government contract law, and tax.''

Yet running the legal gantlet is by no means the worst that can happen. Any federal employee can be ordered by an administrative superior to undergo psychiatric ''counseling'' without preliminary evaluation by a general practitioner. Refusal means withdrawal of security clearance and can be itself grounds for dismissal. In the case of members of the military service, as recorded by CBS News's ''60 Minutes'' on Jan. 31, 1983, the penalty can be psychiatric confinement. The Supreme Court has ruled that the employee or military member subjected to such a smear has no recourse, no matter how malicious its origins.

Although it has criticized the Soviet Union for such practices, the American Psychiatric Association has yet to say a word about identical practices within the US military medical system.

There is one more weapon in the hands of the defense administrator: The prospective whistleblower must face up to the fact that references innocently listed on a security background questionnaire can be used and have been used to destroy not only his future but his past as well.

The whistleblower might discover from a Freedom of Information Act search that agents of the Defense Investigative Service have gone to all listed references raising questions about the employee's integrity and emotional stability. The questions may be phrased more as innuendo than as bona fide questions. Even when proved that the DIS has been working from a distorted and possibly fraudulent report, the burden for correction is on the victim, who is barred from seeking damages even when fraud is discovered.

None of this could exist without the complicity and complacency of Congress. Until Congress faces up to the problem the waste will go on, and it will get worse.

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