While I was looking to see whether the administration was attempting the protective return, which they did last year and this time, I came across the president's first constitutional signing statement in a long while. President Obama, in signing the "Intelligence Authorization Act for Fiscal Year 2010," issued an interesting challenge--and seemingly broke from his pledge last year to stop issuing public constitutional challenges.
Obama issued two challenges of interest. And both are consistent with the trend among recent presidents--including Bush II--to attempt to control information and the actions of inferiors.
The first challenge is a recent trend to limit who in Congress gets briefed on sensitive information. As Jake Tapper details, the Speaker of the House has been pushing for "robust oversight," which involves letting as many members of Congress know what the administration is doing in the area of intelligence--in particular things like covert operations, "Black Prisons," etc. Right now, the deal is for the President to inform the "Gang of Eight"--Eight congresspersons from the House and Senate leadership and intelligence committees--and Pelosi wanted to undo it. Apparently, when Obama threatened a veto of the intelligence authorization bill, Pelosi backed down and a deal was worked out to allow Congress "a general description" in exchange for "recognizing the President's authority to protect sensitive national security information." The kicker is in the last sentence--and thus the challenge: "...my Administration understands section 331s requirement to provide to the intelligence committees 'the legal basis' under which certain intelligence activities and covert actions are being or were conducted as not requiring disclosure of any privileged advice or information or disclosure of information in any particular form. (emphasis and underline added)" First, you suppose that was Congress's understanding? Second, nothing like being specific: "...disclosure of information in any particular form"!
What did get overlooked is the second challenge--and an interesting challenge at that. The second challenge involves whistleblower protections for those in the intelligence communities. Last year, Obama got into trouble for repeating a Bush tactic in trying to prevent any whistleblower protections at all. In a signing statement to an omnibus spending bill in March, 2009, Obama challenged a provision (that was a rider) that refused pay of anyone in the Executive Branch who attempted to prevent a government whistleblower from coming forward. In his signing statement, Obama said that the provision would not "detract from his authority to direct the heads of executive departments to supervise, control, and correct employees' communications with Congress." This infuriated Members like Senator Charles Grassley (R. IA), who has been committed to whistleblower protection. He, and Senator Patrick Leahy (D. VT) went after the Bush administration when it tried to kill the whistleblower protection they built into Sarbanes-Oxley. They declared victory, only after continually pursuing the administration for nearly a year (and it appears that even though the administration claimed to capitulate, in reality they didn't--they just pretended, hoping that Grassley and Leahy would move on--see my 2005 conference paper on the Bush action.)
In the Intelligence bill, Obama argues that his "understanding" of the whistleblower provision first does not include information deemed privileged or confidential (which is interesting given that whistleblowers are not usually known to disclose information that is public). And second, Obama obscures the challenge by simply citing a similar Clinton-era challenge:
Moreover, the whistleblower protection provisions in section 405 are properly viewed as consistent with President Clinton's stated understanding of a provision with substantially similar language in the Intelligence Authorization Act for FY 1999.
As I have stated earlier, if Obama was serious about being more transparent with his signing statements, then he would state the reason for the challenge or the interpretation in his signing statement, and not make a general reference to an interpretation in a previous administration. First, he is not clear about what part is similar, and second, he assumes that the typical person won't go looking for the Clinton signing statement to look it up and be sure that his interpretation is on the level. Or he is counting on the fact that most journalists--taxed for time or interest--won't go looking themselves. And given the fact that no other journalist seems to mention the whistleblower challenge leaves me to believe this is the case, though equally as plausible is the unusual protective return pocket veto at the same time the signing statement is issued, playing on the media's need for things that are unusual.
In Clinton's challenge, he wrote:
Finally, I am satisfied that this Act contains an acceptable whistleblower protection provision, free of the constitutional infirmities evident in the Senate-passed version of this legislation. The Act does not constrain my constitutional authority to review and, if appropriate, control disclosure of certain classified information to the Congress. I note that the Act's legislative history makes clear that the Congress, although disagreeing with the executive branch regarding the operative constitutional principles, does not intend to foreclose the exercise of my constitutional authority in this area.
This is a generous view of what really happened in Clinton's case. According to Thomas Newcomb ("In from the Cold: The Intelligence Community Whistleblower Protection Act of 1998." 53 Administrative Law Review. 1235. 2001), the Congress--and in particular the Senate, did not concede that the president had a constitutional right to impede whistleblowers, in part by relying upon testimony from my friend, Lou Fisher, then at the Congressional Research Service, who argued that the Congress, as much as the President, had the constitutional right to regulate national security information. In the end, the stipulation that the president had to get out of the way with communications between folks inside the intelligence services and Congress was excised in conference committee without recognition of the existence of a constitutional prerogative of the presidency.
So it begs the question just what Obama's view of the whistleblower protections are in light of his challenge from last March 2009 and the very vague nature by which he made his current challenge? What is clear is that Obama's use of the signing statement is every bit of a mystery as was his predecessor's use.
