Undefined Terms Translate to Possible Indefinite Detention for Intelligence Whistleblowers
(Washington, DC) – This past Monday, Dec. 17, the Government Accountability Project (GAP) filed an amicus curiae brief with the United States Court of Appeals for the Second Circuit, in the case of Hedges v. Obama. That lawsuit challenges provisions contained within the National Defense Authorization Act for Fiscal Year 2012 (NDAA 2012). The overbroad and vague provisions, as the brief states, "greatly expands [sic] the Executive's military detention authority," which allows the federal government to indefinitely detain American citizens, such as those who: a) "substantially supported" groups engaged in hostilities against the U.S., b) substantially supported "associated forces" engaged in such hostilities, or c) have "directly supported" such hostilities.
GAP's brief focuses on the undefined nature of the terms "substantially supported," "associated forces" and "directly supported," arguing that the lack of parameters around these phrases can be used by the federal government to indefinitely detain intelligence agency whistleblowers who seek to expose wrongdoing and corruption in the American intelligence system. Such language also creates a chilling effect for potential whistleblowers.
"What if the federal government had this power when whistleblowers helped to expose the warrantless wiretapping program, the CIA rendition program, or the Abu Ghraib prisoner abuse scandal?" asked GAP National Security & Human Rights Director Jesselyn Radack. "Federal officials have always lamented the release of any intelligence information to the public, even when it discloses horrific abuse of power and threats to the Constitution. Now, with these undefined terms, these provisions could be used to detain intelligence whistleblowers indefinitely, without any sort of trial or due process."
The amicus brief was filed on behalf of GAP by attorney Reem Salahi of the law firm Hadsell Stormer Richardson & Renick. A copy of the brief is available here.
Historically, intelligence whistleblowers have faced harsh retaliation for coming forward. They have been labeled "traitors" or "enemies of the state." The Obama administration has used the Espionage Act to prosecute national security whistleblowers more frequently than every past presidential administration combined.
The brief details the actions of, and subsequent retaliation against, the first of these Espionage Act defendants charged by the Obama administration, GAP client and National Security Agency (NSA) whistleblower Tom Drake. He discovered that the NSA had established a surveillance program that sacrificed Americans' security and privacy while wasting massive amounts of public resources. After reporting the wrongdoing through a series of proper channels, Drake shared unclassified information with a reporter. Retaliation followed, and eventually he became the target of an unjust leak investigation related to the warrantless wiretapping scandal. The federal government conducted an armed raid of Drake's home, and he was criminally prosecuted for years before the case against him fell apart days before the trial was set to begin. Drake's case is detailed here.
The brief also outlines the harsh retaliation against Radack for her whistleblowing at the Department of Justice (DOJ). As a legal ethics advisor at the Department in 2001, Radack responded to prosecutor inquiries regarding the ethical propriety of interrogating "American Taliban" John Walker Lindh without a lawyer. Eventually, Radack discovered that the DOJ had only turned over two of her fourteen emails in response to a court order for all internal DOJ correspondence about Lindh's interrogation. Radack shared her emails with the media, an action that helped disable the criminal case against Lindh. Radack faced harsh and protracted retaliation for her actions: among other things, she lost her job, was placed under criminal investigation, was reported to the state bars where she was licensed as a lawyer, and placed on the "No-Fly" list. More on Radack's whistleblowing case can be found here.
"The federal government took unjust action against both myself and Tom Drake in an effort to suppress our voices and deter other national security and intelligence workers from coming forward," stated Radack. "If these undefined and overreaching provisions of the NDAA 2012 stand, it's more than plausible that aggressive actions taken to silence future intelligence whistleblowers will include indefinite detention. That strikes at the heart of government accountability and democracy, and simply cannot be allowed."
Notably, one of the parties who joined former New York Times reporter Christopher Hedges to bring the original action is 'Pentagon Papers' whistleblower Daniel Ellsberg. One of the most prominent and respected whistleblowers in American history, Ellsberg was the first whistleblower charged under the Espionage Act. Like Drake, Radack, and other intelligence whistleblowers, Ellsberg was vilified by many in the federal government for his actions at the time of his disclosure, and infamously called "the most dangerous man in America" by then-Secretary of State Henry Kissinger.
Added Radack, "When Daniel Ellsberg made his disclosure, he endured one of the largest public smear campaigns ever made by our federal government against a citizen. Federal officials wanted to use everything within their power to discredit, hurt, and silence him, and if the NDAA 2012 provisions had been in place at that time, the government could have locked him up and thrown away the key – which is exactly what it wanted to do to both Ellsberg and Drake."