Federal whistleblowers who reveal classified information to members of Congress without going through their superiors would be protected under a Senate-passed provision of the 1998 intelligence authorization act.
Under the provision, the president would be required to inform federal employees and contractors that disclosing information about executive branch law-breaking, lying, mismanagement, waste and abuse to Congress "is not prohibited by law, executive order or regulation or otherwise contrary to public policy." The provision would protect federal employees who disclose information to Congress from reprisal.
The White House has threatened to veto the authorization act, saying the disclosure provision would "unconstitutionally infringe upon the president's constitutional authority."
"Congress may not vest lower-ranking personnel in the executive branch with a 'right' to furnish national security or other privileged information to a member of Congress without receiving official authorization to do so," the administration contends.
The struggle over how much information the executive branch should be required to share with Congress has a long history. In 1912 Congress passed the Lloyd La Follette Act, which states that "the right of employees . . . to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied." The act was passed after the Theodore Roosevelt and Taft administrations prohibited federal employees from communicating with Congress without authorization from their superiors.
Now, though, the Justice Department is arguing that Congress does not have a constitutional right to obtain information from civil servants through unauthorized disclosures. Based on its analysis of disclosure laws and its stance on separation of powers, Justice argues that Congress cannot vest "in executive branch employees a right to provide classified information to members of Congress without official authorization."
Two recent cases led the Senate to add the disclosure provision to the intelligence authorization bill and a similar provision to the defense authorization bill.
Richard Barlow, a former CIA analyst, was fired eight years ago for telling his superiors he wanted to inform members of Congress that they had been misled into believing that Pakistan had no nuclear weapons. Though Barlow did not disclose the information, he was fired because his boss believed Barlow would eventually contact Congress, the New York Times reported Sunday.
In another case, Richard Nuccio, a former senior official at the State Department, was stripped of his security clearance last year after he told then-Rep. Robert Torricelli, D-N.J., a member of the House intelligence committee, about CIA involvement in two murders in Guatemala.
Torricelli is now a Senator. Nuccio quit in February and is now on Torricelli's staff. Nuccio said he is "reviewing his legal options," which may include a suit against the government.
The administration holds that current procedures for relaying classified information to Congress are sufficient.
Col. Gordon Bendick, a legislative affairs specialist at the National Security Council, said the congressional intention of rooting out fraud and abuse is good, but the provisions being considered unconstitutionally challenge presidential authority over classified information. "The fundamental issue is constitutionality--can the Congress divest the president of his constitutional authority?" Bendick said.
The administration's written policy says that "existing congressional oversight mechanisms, as well as inspector general statutes, have proven effective in bringing instances of illegality, fraud, waste and abuse to the attention of executive branch managers and congressional committees."
Duncan Levin, a public policy analyst for the Center for National Security Studies, a Washington-based civil liberties group, said Congress has a right to obtain classified information in order to carry out its oversight responsibilities.
"The veto threat sends a very chilling message to executive branch employees," Levin said.
Sen. Bob Kerrey, R-Neb., vice chairman of the Senate Intelligence Committee, echoed Levin's concerns last month.
"The committee is concerned about statements by the executive branch over the years that may have left federal workers with the understanding that their constitutional right to petition Congress does not apply when classified information is involved," Kerrey said. "This undermines Congress' ability to fulfill its constitutional responsibility and is particularly troubling when intelligence agencies are involved."