In late December 2012, Congress passed the National Defense Authorization Act of 2013. Included in this bill were sections outlining 'best practice' whistleblower protection rights for federal government contractors. This tremendous expansion of whistleblower rights – which GAP led a years-long effort to pass – will help to safeguard approximately $1.9 trillion worth of government contracts, grants and reimbursements annually, and protect some 12 million federal contractor whistleblowers when they expose wrongdoing.
Click here to read GAP's press release on the bill's passage, which details these new protections.
On January 3, 2013, President Barack Obama signed this legislation into law, and released an accompanying signing statement. Notably, the statement touched on the section (828) that details the contractor whistleblower provisions. In his statement, the President wrote:
Certain provisions in the Act threaten to interfere with my constitutional duty to supervise the executive branch. Specifically, sections 827, 828, and 3164 could be interpreted in a manner that would interfere with my authority to manage and direct executive branch officials. As my Administration previously informed the Congress, I will interpret those sections consistent with my authority to direct the heads of executive departments 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…
Any executive branch signing statement language that relates to clearly outlined whistleblower protections should be analyzed by the whistleblower rights community. Appropriately, many of GAP's coalition partners have publicly remarked on the President’s statement.
From GAP's perspective, it is important to note that there are no references in the signing statement language to restricting the new protections outlined in the law, nor are any enforcement penalties detailed.
While signing statements do not appear to have legal force by themselves, they maintain particular potency with federal executive agencies, since these agencies are often responsible for the administration and enforcement of federal laws.
Therefore GAP, like other whistleblower advocates, is concerned that this signing statement language could create a chilling effect for federal contractor whistleblowers and the agencies tasked with protecting them – a very serious consequence. In light of the signing statement, it is essential for those personnel to remember that:
a.) the signing statement language does not threaten preexisting free speech rights to blow the whistle on unclassified information – detailed by the President's own Executive Order, and under longstanding rights to communicate as individuals with Congress, and
b.) the Constitution does not grant any legal standing to presidential signing statements. The bill language is still the law.
It must also be noted that (according to recent news reports) the White House did not consult with key legislators, notably Sen. Claire McCaskill (D-Mo) or Rep. Jackie Spieir (D-Ca), prior to issuing the signing statement. This is a regrettable occurrence, and it is our hope that in the future, the White House will consult in advance with key stakeholders before releasing ambiguous language that could result in the stifling of truth-tellers attempting to expose corruption.
This action is just the latest example of dichotomous stances taken by this administration on whistleblower issues. This notion is epitomized by the administration's unprecedented rampant use of the Espionage Act to criminalize the actions of several national security and intelligence whistleblowers, while simultaneously providing necessary and key support for the passage of long overdue protections for most other federal employees.
GAP continues to monitor all actions by the White House regarding occupational free speech, and stands at the ready to publicly praise or criticize such actions in the name of the public.
Wednesday, 13 February 2013