Something You Can Do To Help One Soldier This Memorial Day

You can take a few minutes to send a letter of support on behalf of Lieutenant Colonel Darrel Vandeveld. Lt. Col. Vandeveld is a highly decorated member of the U.S. Army Reserve Judge Advocate General Corps  who served in Bosnia, Africa, Iraq and Afghanistan, as both a solder in combat and a prosecutor.  After almost 20 years of courageous service to our country the Army is threatening his ability to retire with honor.  You may be asking yourself why. I know I certainly did.

Lt. Col. Vandeveld served as a prosecutor in the Office of Military Commissions at Guantanamo Bay, Cuba from May 2007 to September 2008. He went to bring “to justice detainees who President George Bush had said were ‘the worst of the worst,’” but eventually left Guantanamo because he concluded that he could not “ethically or legally prosecute” the case he was assigned.  Lt. Col. Vandeveld admits that he arrived at Guantanamo as a “true believer” and brushed off stories of detainee abuse as “hyperbole.” One such case was that of young Afghan Mohammed Jawad.  Jawad informed the court that he was a minor and that he had suffered horrible abuse during his detainment.  Lt. Col. Vandeveld accused Jawad of “exaggerating and ridiculed his story as ‘idiotic’” and “railed against Jawad’s military defense attorney” for being a terrorist sympathizer.

The Lt. Col. thought that he was working on a simple case that would produce a quick conviction and prove that the Guantanamo Military Commissions worked.  Little did Lt. Col. Vandeveld know that he was actually opening Pandora’s box.  He discovered many serious issues including: abusive interrogations, evidence withheld from the defense, judicial incompetence, and confessions coerced through torture.  When Lt. Col. Vandeveld brought these issues to his supervisors they were “harshly dismissive” of his concerns and “on some unspoken level, began to question my [his] loyalty, even though my [his] combat experience exceeded both of theirs combined.”  Lt. Col. Vandeveld made the “enormously painful decision to ask to be reassigned” because he could not “in good conscience continue.”

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WikiLeaks provokes DoD threat against whistleblowers

A front page story in today's Washington Post looks at the growth and effects of the popular anonymous whistleblower website, WikiLeaks. Daniel Schmitt, a WikiLeaks director, told Post writer Joby Warrrick that, "The message of WikiLeaks to the controllers of information is this: You can either be transparent, or transparency will be brought to you."  Here, here.  I became concerned, though, when I read the quote from a 2008 U.S. Department of Defense (DoD) memo that proposes the "identification, exposure or termination of employment of or legal actions against current or former insiders, leakers or whistleblowers" as a tactic against WikiLeaks. It is distressing that DoD's reaction would be knee-jerk retaliation.  They just don't get the message.

MSPB Fails to Protect Robert MacLean

An administrative judge at the Merit Systems Protection Board (MSPB) upheld the illegal termination of former federal air marshal Robert MacLean. Mr. MacLean blew the whistle on the Department of Homeland Security’s Transportation Security Agency’s (TSA) plan to improperly remove U.S. air marshals from long distance flights during a heightened terrorist alert. The TSA subsequently fired Mr. MacLean in flagrant violation of the Whistleblower Protection Act (WPA). To justify the decision to terminate Mr. MacLean, TSA retroactively labeled his disclosure as Sensitive Security Information. Ever since he was terminated, Mr. MacLean has been fighting for his reinstatement.

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OSHA to PATH: no retaliation against injured employee

One of the outcomes of the 9/11 Commission was that Congress passed two whistleblower protection laws for railroad and public transit employees in 2008. These are the Federal Rail Safety Act (FRSA), 49 U.S.C. § 20109, and the National Transit System Security Act (NTSSA). Both are part of Public Law 110-53, see § 1413 (NTSSA) and § 1521 (FRSA). Together, these laws assure the traveling public that if any of the carrier's employees see a safety or security concern, they can raise that concern knowing that they have legal protection against retaliation, . . . unless they are traveling by ferry.

This week, the Occupational Safety and Health Administration (OSHA) issued a determination of an FRSA violation.  OSHA's New York office did so in the most common of circumstances.  It has expunged a suspension for an employee of the Port Authority Trans-Hudson Corp. (the so-called PATH trains between New Jersey and Manhattan). According to OSHA's press release, the employee, under a doctor's order, was absent from work while recovering from an injury. PATH management accused the employee of absenteeism, and issued a suspension. The worker filed a whistleblower complaint with OSHA and OSHA has now concluded that this simple act of following a doctor's orders is a protected safety-related act.

"Railroad employees have the statutory right to report work-related injuries and to follow the orders or treatment plan of a treating physician," said Robert Kulick, OSHA's regional administrator in New York. "Railroads who retaliate against employees for exercising their rights will be held accountable."

OSHA has ordered PATH to take corrective action, including expunging disciplinary actions and references to them from various records as well as compensating the worker for lost wages resulting from the suspension. The railroad also must post and provide its employees with information on their FRSA whistleblower rights. Either or both parties can object and request a hearing before an Administrative Law Judge.