Holding the Government Accountable

Obama, Bush and the Imbalance of Power

It’s a New Year but it’s déjà vu at the White House. We saw it before during the Bush-Cheney administration: President Bush infamously tried to undermine legislation by signing it with one hand while using the other to assert he could interpret the law as he pleased. Some of us decried Bush’s attempts to have the seemingly boundless powers of a unitary executive. Some even called it an “Imperial Presidency.” This month, President Obama invited similar outrage when he signed the defense authorization bill.

In fact, Obama went further than Bush in his signing statement. The president objected to whistleblowers making unclassified disclosures to Congress — disclosures Congress rightfully protected. In doing so, Obama threatens whistleblower protections and dangerously tilts the balance of power away from the Congress to the presidency. He has already received an unusual letter of concern from bipartisan members of Congress — from Sens. Claire McCaskill and Chuck Grassley, and House Oversight and Government Reform Chairman Darrell Issa and Ranking Member Elijah Cummings.

The defense authorization bill included landmark protections for those who blow the whistle on waste, fraud, and abuse by government contractors and grantees. Legitimate disclosures of wrongdoing made to certain entities, including Congress, are protected. It’s rare for Congress to do the right thing these days, but this new law should go a long way toward making contractors and grantees more accountable for the billions of taxpayer dollars they receive every year.

But if the protections are unclear, whistleblowers may be reluctant to come forward—or burned if they do. Obama has thrown disclosures to Congress into question by claiming these new rights for whistleblowers “threaten to interfere with my constitutional duty to supervise the executive branch.” This is especially disturbing given that Obama has long supported whistleblowers and has previously kept every promise to strengthen protections for them.

The Obama administration was the first to back legislation to restore and modernize whistleblower protections for federal workers, which finally became law in December after more than a decade-long struggle. Last October, he issued an unprecedented directive protecting many in the intelligence and national security communities for the first time. Perversely, though, this president, who has done more than any other to affirmatively open the government and protect whistleblowers, has also done so much to chill free speech.

The Obama administration has prosecuted more so-called leakers under the Espionage Act than all other administrations combined. At least one federal agency, the FDA, has spied on whistleblowers. Now, this signing statement warns would-be whistleblowers that he will interpret the new protections consistently with his authority to direct the executive departments in order to control communications to Congress that “would reveal information that is properly privileged or otherwise confidential.”

I and many others who work to protect free speech fundamentally disagree with the president's position that his administration should control disclosures to Congress. Proper checks and balances cannot occur if the executive branch can keep secrets from Congress. Unfortunately, it has become business as usual for presidents to claim control of classified information, and for Congress to cede it.

What makes this signing statement even more alarming is that it isn’t even about controlling classified information. The new law does not protect classified disclosures, but rather, explicitly excludes them. Obama seeks to withhold information ambiguously referred to as “otherwise confidential.” This expansive claim over undefined, unclassified information jeopardizes both the balance of powers and whistleblowers.

While the legal force of such signing statements is dubious, this may open the door to abuses. Contractors frequently call the information they have in their possession confidential, even when it is public information. The lack of definition could lead to retaliation for disclosures of unclassified information to Congress, and competing claims regarding the protections. In any case, it has already caused confusion, and is very likely to have a chilling effect.

Congress will have to conduct rigorous oversight to ensure the new rights they passed for federal contractor and grantee whistleblowers are not undermined. After the similar Bush signing statement, there was a bit of a firestorm; the left howled, but there also was a congressional inquiry and a report by the Government Accountability Office. The Obama signing statement and its impact warrant at least as much scrutiny.

Congress must not roll over for this, or any president. Now more than ever, we need all branches of government to stand up for free speech and work for more accountability to the American people.

This article also appeared on The Hill's Congress Blog.