President Barack Obama campaigned hard on government transparency. Unfortunately, that didn’t mean what most of us thought it meant. As Ross Schulman of the American University’s Washington College of Law writes, “... effort has been expended on programs that have emphasized policy and legislative transparency over ethical and data transparency.” Obama’s emphasis is inverted. “A given transparency program should not be judged on how well it exposes the public to the details of a piece of legislation, but rather on how well it provides voters with information about the ethical actions of their representatives,” writes Schulman.
After spending most of his first presidential term stomping on whistleblower rights in order to quash leaks, last November, Obama signed the Whistleblower Protection Enhancement Act (.pdf; 219KB), expanding whistleblower protections for some—but not all—US government employees. Most importantly, the new law provides for a more relaxed standard of proof allowing whistleblowers to be protected and closes loopholes in the 1989 Whistleblower Protection Act.
Then, on 2 January 2013, Obama signed the 2013 National Defense Authorization Act (NDAA) (.pdf; 1.5MB) into law, extending whistleblower protections to defense contractors.
So far, so good. It looked like Obama was going to spend his second term rectifying at least some of the whistleblower missteps of his first term. Maybe, just maybe, government whistleblowers would no longer be subjected to prosecution under the Espionage Act. Something Obama has used against more federal employees than all previous presidents combined.
But then, the other shoe dropped.
Dana Liebelson, writing for Mother Jones, reports that in a NDAA signing statement, “Obama wrote that the bill’s whistleblowing protections ‘could be interpreted in a manner that would interfere with my authority to manage and direct executive branch officials,’ and he promised to ignore them if they conflicted with his power to ‘supervise, control, and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.’”
Federal whistleblowing employees would have to first report misdeeds to their supervisors, gutting the entire concept of whistleblowing. And the new rights do not extend to intelligence contractors.
Liebelson cites Angela Canterbury, director of public policy at the Project on Government Oversight: “The language Obama used wasn’t defined, it’s completely ambiguous, and it’s already led to confusion. I can imagine contractors claiming that disclosures made by whistleblowers are ‘confidential,’ and I think it could likely have a chilling effect.”