January 10, 2013; Source: Mother Jones

Many critics of the National Defense Authorization Act (NDAA) and had hoped that President Barack Obama simply wouldn’t sign it. Their concerns were primarily focused on the provisions of the law that permitted the government to hold U.S. citizens without trial simply because they faced terrorism accusations, which is the concept of “indefinite detention.” Critics and supporters debate whether the final text of the bill does or doesn’t preclude indefinite detention for U.S. citizens.

While the president signed the bill, he attached a signing statement that indicated that the administration disagrees with other parts of it. Specifically, Obama rejects the bill’s restrictions on potentially closing Guantanamo Bay and other camps where the U.S has detained terror subjects. Although all modern era presidents have used signing statements, this approach is a little surprising since, in 2008, Obama campaigned on the idea that signing statements indicating that an administration would not implement particular provisions of laws passed by Congress were unconstitutional.

Obama’s NDAA signing statement also covered other parts of the legislation, including one that should be of significant concern to nonprofits. The text of the NDAA expanded whistleblower protections for employees of defense contractors who expose waste and corruption. President Obama’s signing statement announced that the administration could ignore that provision because it “would interfere with my authority to manage and direct executive branch officials.”

For advocates of protections for whistleblowers, this is not only troubling, but it appears to contradict what the Obama administration did just a couple of months earlier. In November, the president signed an upgrade to the Whistleblower Protection Act, which was championed by Sen. Chuck Grassley (R-Iowa). That move codified and clarified protections for federal employee whistleblowers. Why follow it up with a presidential statement suggesting that employees of Pentagon contractors shouldn’t have equivalent whistleblower protections, especially given that so much of overseas work for the U.S. falls under the nomenclature of “defense” and is conducted by private contractors?

Angela Canterbury of the Project on Governmental Oversight expressed concern that contractors could claim that potential whistleblower disclosures were confidential or privileged. If so, what recourse would whistleblowers have? Tom Devine of the Government Accountability Project seemed less concerned, describing the whistleblower portion of Obama’s signing statement as “rhetorical fluff” that came with no indications of any specific kinds of enforcement actions against defense contractor whistleblowers.

Mother Jones offers a critical take on President Obama’s approach to whistleblowers: “Obama has been accused of treating lawful whistleblowers like illegal leakers. His administration has wielded the World War I-era Espionage Act against more federal workers than all other presidents combined.” For those of us who believe strongly in governmental transparency, whistleblowers are important counterweights against the somewhat automatic tendency of executive offices to restrict information. Let’s hope that Devine is correct that the signing statement provision in question was mere “rhetorical fluff” and that our government sees whistleblowers, whether in government agencies or working for federal contractors, as the check and balance that they are. –Rick Cohen