WHISTLEBLOWERS AND THE OBAMA PRESIDENCY ~ balanced, nuanced look at Obama's record

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WHISTLEBLOWERS AND THE OBAMA PRESIDENCY: THE NATIONAL SECURITY DILEMMA

(Note: the above link is to the Social Science Research Network -- that's where the abstract below is from and where you can download the article's 86-page PDF.)

Abstract:
As a candidate for President, Barack Obama promised to protect whistleblowers because they are, in his words, “watchdogs of wrongdoing and partners in performance.” Three years into his Presidency, Obama’s record often demonstrates strong support for employees who disclose government misconduct. He appointed whistleblower-rights supporters to key administrative posts and fought to include robust whistleblower protections in his key legislative accomplishments, such as the economic stimulus package, health care reform and the financial reform bill. However, the Obama Administration’s treatment of national security whistleblowers has been decidedly less emphatic and more nuanced. His Administration aggressively prosecuted unauthorized disclosures related to national security and objected to reporters claiming a privilege not to reveal their sources. Moreover, a substantial legislative reform of federal employee whistleblower protections remained in limbo for much of Obama’s Presidency in part because of his Administration’s concern that the proposed law would provide too many rights to national security whistleblowers. This Article examines and critiques this apparent contradiction in President Obama’s whistleblower agenda and also explores ways in which the Obama Administration might satisfy its national security policy objectives without undermining whistleblower protection.

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Paper title: WHISTLEBLOWERS AND THE OBAMA PRESIDENCY: THE NATIONAL SECURITY DILEMMA

FROM THE PDF of the PUBLISHED PAPER'S INTRODUCTION:

In many ways, President Obama has lived up to his promised support
for whistleblowers. Obama’s appointments to key administrative positions in charge of whistleblower protection consistently supported employee rights and worked steadily to unravel the long-standing anti-whistleblower bias in those agencies.5 Moreover, the three most prominent pieces of Obama’s legislative agenda – the economic stimulus package, the financial reform bill, and health care reform – all included key provisions that en- hanced whistleblower protections.6

However, the Obama Administration’s record regarding whistleblower protection for national security whistleblowers has been decidedly less em- phatic and more nuanced.7 Indeed, the Obama Administration has been ac- cused of conducting a “war on whistleblowers,” because of its aggressive prosecution of leaks related to national security.8 Obama’s Department of Justice (DOJ) prosecuted six people who allegedly disclosed sensitive in- formation to non-governmental entities (such as the media) under the Espi- onage Act, a statute typically used to prosecute disclosure of national se- crets to foreign governments – more such prosecutions than all previous administrations combined.9 Moreover, Obama’s Administration has con- tinued the Bush Administration’s attempts to coerce reporters into identify- ing the sources of national security leaks.10 Further, his support for statuto- ry improvements to antiretaliation laws varies depending on whether the proposed protection affects whistleblowers in the intelligence community.11

This Article explores President Obama’s seemingly contradictory ap- proach to whistleblowers and the distinction he appears to draw between whistleblowing about governmental misconduct generally, which he sup- ports, and whistleblowing in the national security context, which he ap- pears to disdain. Part II of the Article describes the numerous moves Obama made to improve whistleblower protection through his Presidential appointments and his support of improved antiretaliation statutory measures. Additionally, this Part contrasts that support with Obama’s
seemingly antagonistic approach to whistleblowing about national security.

At least two questions arise from drawing this distinction between na- tional security whistleblowing and other types of whistleblowing. First, where does the distinction come from? Second, does the distinction make
sense?

Part III (WHISTLEBLOWING, NATIONAL SECURITY, AND THE SEPARATION OF POWERS) of the paper addresses the first question and Part IV (PROVIDING A BETTER BALANCE) the second.

This is a nuanced look at Obama's whistleblower record and should be of interest to most DUers, particularly those of us who've condemned his whistleblower record (me included). I've just started reading this 86 page article/report -- it's promising to be an interesting read.

The author is Richard Moberly, professor at the U. of Nebraska School of Law. This article was published in the Employee Rights and Employment Policy Journal.