How to protect, or not, national security.

Presidents have long sought to block executive branch employee access to Congress’s ear. See The Whistleblower Protection Enhancement Act of 2009: Appearing Before the House Committee on Oversight and Government Reform, 111th Cong. (2009)(Statement by Louis Fischer, Specialist in Constitutional Law, Law Library of the Library of Congress). In their day, both Roosevelt and Taft threatened to fire any agency employee who disclosed information to Congress directly, and not through his or her agency head. See Id. More recently, Ronald Reagan made agency employee security clearances contingent on employees signing nondisclosure agreements. See Id. And because confidential information is, according to the executive primacy argument, in the sole purview of the executive branch, whistleblower protections do and should not cover employees seeking to blow the whistle on executive branch activities tied to national security.

Ensuing legal battles over national security whistleblowing have turned on whether the president has plenary power over international affairs, and thus national security information, or shares responsibility for national security matters with Congress. See Id. Under Bush, for example, the Justice Department asserted that “pending national security whistleblower legislation ‘constitute[d] an unconstitutional interference with the President’s constitutional responsibilities respecting national security and foreign affairs.” Id at 18 (citation omitted). Others, like Fischer, infra, argue that Congress, like the president, is constitutionally required to oversee national security issues and act as a check on executive abuses of power. See generally, Id.

In the end, the relevant question is whether more honesty and competence in the executive branch or greater control over information flow from the executive branch will better protect our national interests.

We don't yet have an answer to these questions, but on February 9, 2009, the saga continued when Senator Daniel Akaka, a democrat from Hawaii, introduced S. 372 in order to expand federal whistleblower protections. A month later, on March 12, 2009, Representative Christopher Van Hollen, a democrat from Maryland, introduced a related bill, H.R. 1507, the Whistleblower Protection Enhancement Act of 2009. H.R. 1507, if passed, would amend current federal law, in part, by expanding what constitutes a protected disclosure.

Of interest here is that H.R. 1507 prohibits “implement[ing] or enforce[ing] any nondisclosure policy, form, or agreement, if such policy, form, or agreement does not contain the following statement: ‘These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by Executive Order No. 12958; section 7211 of title 5, United States Code (governing disclosures to Congress); section 1034 of title 10, United States Code (governing disclosures to Congress by members of the military); section 2302(b)(8) of title 5, United States Code (governing disclosures of illegality, waste, fraud, abuse, or public health or safety threats); title VI of the National Security Act of 1947 (50 U.S.C. 421 et seq.) (governing disclosures that could expose confidential Government agents); and the statutes which protect against disclosures that could compromise national security, including sections 641, 793, 794, 798, and 952 of title 18, United States Code, and section 4(b) of the Subversive Activities Control Act of 1950 (50 U.S.C. 783(b)). The definitions, requirements, obligations, rights, sanctions, and liabilities created by such Executive order and such statutory provisions are incorporated into this agreement and are controlling.’” H.R. 1507, 111th Cong. (2009).

Will this bill, and its expanded whistleblower protections, pass? Find out by tracking H.R. 1507 on OpenCongress--a great tool for staying up-to-date on any current bill.