Are we seeing a return to the shadowy nature of the Bush-Cheney years at the dawn of President Obama's second term?
The president, both on the campaign trail and off, distinguishes the two administrations at almost every turn. Others, aren't so sure, and claim there haven't been enough substantive changes. Of course, the reality, as is almost always the case, lies somewhere in the middle. One area that concerns us is Obama's increasing reliance on presidential signing statements to assert executive authority over laws passed by Congress.
Early in his presidency, Obama wrote, "In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded." For the most part, he has operated as promised. Yet, in April 2011, he dipped his toes into the theory of "the unitary executive" espoused by President Bush and, most infamously, Vice-President Cheney, referencing the "well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority" in issuing a signing statement. In his most recent statement, there are signs that President Obama may be abandoning the restraint he practiced during his first term.
In the signing statement concerning the "National Defense Authorization Act for Fiscal Year 2013," Obama takes issue with a provision in the law that provides increased whistleblower protections for defense contractors. The statement avers that he "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."
This assertion of complete power of the executive branch over any law presented to the president by Congress (in a general sense) and presidential control over all disclosures to Congress (in this instance), reinvigorates a previously flagging debate about the proper balance and separation of powers. It raises concerns about the extent of the president's commitment to open government. Presidential control over all disclosures to Congress would seriously undermine the checks and balances built into our system of government. Respect for the limits of each branch's powers and full transparency in the exercise of government are critical components for open and accountable government.
President Obama has sent mixed messages to whistleblowers during his first term. He signed into law the Whistleblower Protection Enhancement Act, a law that closed loopholes created through judicial decisions that had weakened the Whistleblower Protection Act. He also took the extraordinary step of issuing a directive protecting disclosures by many in the intelligence and national security communities. On the other hand, his administration has aggressively used the Espionage Act to prosecute so-called leakers, including bringing charges against the man who blew the whistle on the government's warrantless wiretapping program, Thomas Drake. Even if it is not Obama's intent, the kind of rhetoric included in the recent signing statement could have a further chilling effect on disclosures of waste, fraud, abuse and illegality to Congress by federal employees, even -- no, especially -- in direct contravention of congressional intent, while offering no viable opportunity for Congress to respond via revised legislation or other action.
The founders intended for the balance of powers to keep the government responsible to the people. If President Obama chooses to treat the signing statement as law rather than as a rhetorical flourish, he will not only be aligning himself more closely with the Bush-Cheney administration, but risking a return to that administration's secretive and unaccountable methods and widespread restriction of civil liberties.
McDermott is executive director of the coalition, OpenTheGovernment.org, and author of Who Needs to Know? The State of Public Access to Federal Government Information, and numerous articles. She is recipient of the James Madison Award from the American Library Association in recognition of her work to champion, protect, and promote public access to government information and the public's right to know.
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