Law, College of
Date of this Version
2012
Citation
EMPLOYEE RIGHTS AND EMPLOYMENT POLICY JOURNAL, Vol. 16 (2012), PP. 51-141.
Abstract
This Article explores President Obama's seemingly contradictory approach to whistle blowers and the distinction he appears to draw between whistleblowing about governmental misconduct generally, which he supports, and whistleblowing in the national security context, which he appears to disdain. Part II of the Article describes the numerous moves Obama made to improve whistle blower 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 national security whistleblowing and other types of whistleblowing. First, where does the distinction come from? Second, does the distinction make sense? Part III answers the first question by examining why Obama might approach national security whistle blowing differently than other types of whistleblowing. In some respects, this different approach continues a long-standing separation of powers dispute between the legislative and the executive branches of the federal government. Congress desires transparency and oversight of the executive branch, which it hopes to achieve by encouraging executive branch employees to disclose information to Congress. Presidents traditionally have resisted these efforts, particularly when they involve matters over which the Constitution arguably has empowered the President with exclusive domain, such as protecting secrecy related to national security. The state of the law related to national security whistleblowers reflects this dispute in that such whistleblowers generally receive far fewer protections than other types of whistle blowers. In short, President Obama values secrecy over transparency and oversight when it comes to national security whistleblowing, and the law often reflects and supports this choice. Part IV responds to the second question - does this distinction make sense? - by analyzing whether President Obama and the current state of the law correctly balance the competing goals of secrecy and security on the one hand and transparency and oversight on the other. Although reasons certainly exist to treat national security whistleblowers differently than other whistle blowers, I argue in this Part that the law could be modified to increase transparency and oversight without a corresponding negative impact on secrecy and national security. I conclude the Article with several suggestions to re-balance the scales and to provide national security employees appropriate encouragement to blow the whistle on governmental misconduct.