I've been blogging here, to mixed reception, about the alarming increase of "leak" investigations and prosecutions under President Obama.

Yesterday, the L.A. Times had a lead editorial on "The Obama Administration's Attacks on the Media."

[T]his administration has pursued a quiet but malicious campaign against the news media and their sources, more aggressively attacking those who ferret out confidential information than even the George W. Bush administration did.

It specifically mentions the cases of James Risen, one of the New York Times reporters who broke the warrantless wiretapping story, and Thomas Drake, a former NSA official indicted for supposedly leaking details of NSA secret surveillance programs to the Baltimore Sun.

Risen and Drake are bookends of a disturbing trend of the "Transparency President": keeping information from the public.

The indictment of Tom Drake under the Espionage Act weaves a sordid tale of intrigue about how Drake committed dastardly deeds by leaking classified information to a Baltimore Sun reporter.  But Drake never gave classified information to a reporter. Upon a close read of the indictment, he is not charged with "leaking" (there is no such crime) anything at all.  Rather, he is charged with retention of classified documents for the purposes of distribution (there is no such crime).

The L.A. Times nails what this is prosecution is really about:

The [Baltimore Sun] reported extensively on technical problems with an NSA program that Drake was involved with; that reporting embarrassed the government, which indicted the individual it says brought about that embarrassment.  That smacks of retaliation, not legitimate protection of sensitive information.

Tom Drake is a whistleblower we would have applauded during the Bush years, but now he is facing 35 years in jail.

In news regarding automaker Toyota’s continuing problems with “unintended acceleration” – a sudden increase in speed that may be linked to several accidents and deaths since 2001 – preliminary findings from federal officials seem to support the company’s claims that problems lie not in faulty electronics, but rather in other issues such as sticking pedals, floor mat entrapment, and driver error.

Government regulators are investigating this issue using data collected from Toyota’s ‘black box’ recorders – devices installed in vehicles that record data such as velocity and acceleration. Of course, keep in mind that federal regulators are reviewing the accuracy of Toyota’s electronic system with an electronic device made by… Toyota? On this note, a handful of safety consultants are asking similar questions, such as: Is the black box device a scientifically validated instrument?

This raises the bigger question of the government’s willingness to trust automakers’ claims. It also brings up the familiar catch of free markets versus government regulation. On the one hand, self-regulation has always been problematic (remember when BP assured us that most companies had voluntarily adopted safeguards to protect against oil spills?). On the other, government regulation is sometimes equally faulty. Toyota’s ongoing acceleration issue highlights both sides of the debate.

Details Questionable Roles of Liz Cheney, Shaha Riza, and Others in Multi-Million Dollar Program

(Washington, D.C.) – A report released by the Government Accountability Project (GAP), based on documents obtained through nearly three years’ of U.S. Freedom of Information Act (FOIA) requests, exposes the highly irregular manner in which the Foundation for the Future (FFF) – an obscure project funded by the U.S. Department of State – was established and operated by Bush administration officials and appointees.

Specifically, the report details how high-level State Department officials misled Congress as they sought millions in public money for the Foundation, which was a haven for people with political connections. The report also shows that FFF was a pet project of Elizabeth Cheney, former Principal Deputy Assistant Secretary of State for Near Eastern Affairs. Cheney worked to set up the Foundation with Shaha Riza, Paul Wolfowitz’s companion whose seconding to the State Department (and then to the FFF) was directly responsible for the 2007 World Bank scandal that resulted in Wolfowitz’s departure from the Bank.

“Liz Cheney had the preposterous idea that the Foundation for the Future would bring peace and democracy to the Middle East,” said GAP International Program Officer Shelley Walden, author of the report. “This overlong project wasted millions of taxpayer dollars.”

The report, which is based on 267 documents released by the Department of State over a period of 33 months, can be found here: (Full Report) (Executive Summary) (Key FOIA documents) (Appendix I)

Background

The Foundation for the Future first became an issue of public interest inquiry in 2007, when GAP published the payroll records of Riza, girlfriend of then-World Bank President Paul Wolfowitz. The records showed that Riza, a British national who worked as a World Bank communications officer, was seconded to the U.S. State Department after Wolfowitz was appointed, where she was responsible for establishing the Foundation for the Future (FFF). The FFF was a nonprofit organization tasked with promoting democracy and reform in the Broader Middle East and North Africa (BMENA) region.

While seconded from the Bank to the State Department in 2005 and 2006, Riza received salary raises in excess of what Bank rules allowed, earning far more than Secretary of State Condoleezza Rice. In October 2006, Riza’s secondment was transferred to the FFF itself, where she remained until returning to the Bank in early 2008, after Wolfowitz was forced to resign.

Liz Cheney’s Failed Pet Project

The documents released by the Department of State (DOS) show that Liz Cheney, as Principal Deputy Assistant Secretary of State for Near Eastern Affairs, envisioned Riza’s highly irregular secondment to the FFF in May 2005, well before it was established, and before Paul Wolfowitz became President of the Bank. In this unsupervised position, Riza promoted an overtly political U.S. agenda in the Middle East. Riza’s activities in this role were in apparent violation of conflict of interest regulations at the World Bank, as well as the national security, tax and visa regulations of the U.S. government. The report also shows that Cheney was instrumental in the Foundation’s launch and failure to obtain broad international support.

“The project was doomed from the start – State Department officials in the region warned that restrictive laws in the Persian Gulf states would make the Foundation ineffective; BMENA governments did not support a Foundation that would give their opposition a platform from which to oppose them; and potential donors had misgivings about the project’s lack of indigenous imprint,” stated Walden. “Despite these warning signs, Cheney and the Bush administration moved full steam ahead and established the Foundation anyway.”

In 2005, Cheney, Shaha Riza and Condoleezza Rice embarked on an international crusade to obtain financial and diplomatic support for FFF. But their efforts at diplomacy were a failure; they raised less than 25% of the goal (set by Cheney) of $25 million (USD) in contributions from other nations. The great majority of funding came from the United States, although the legislation creating the institution included a requirement for matching funding.

“The Foundation for the Future was to promote democracy, transparency and popular political participation on a multilateral basis in the Middle East,” said GAP International Program Director Bea Edwards. “So when Liz Cheney – who, in the view of many Middle Eastern leaders, occupied her position largely because she was the Vice President’s daughter – asked other nations for contributions, they balked. Add to this the fact that the Foundation’s board member selection process was directed by the former Deputy Secretary of Defense’s girlfriend and that the Foundation was managed by a personal friend of Wolfowitz’s with little expertise in the region, and it’s no wonder that many potential donors refused to fund it.”

Astroturfing

GAP’s report shows that the FFF was almost entirely financed and monitored by the U.S. government, even though the Bush administration repeatedly portrayed it to Congress as a multilateral, non-governmental organization created in response to democratic demands from grassroots organizations. Documents also show that the Bush administration intended to use the Foundation as a vehicle through which to demonstrate its purported commitment to democratic processes and human rights abroad, at a time when President Bush was subjected to increasing criticism for human rights violations in Iraq, Afghanistan, “black sites” around the world and Guantánamo Bay.

Dubious Lobbying and Funding Efforts

From 2005-2007, officials at the State Department executed a number of questionable legislative maneuvers in the US Congress that were favorable to the FFF. In the end, the Bush-Cheney administration successfully obtained the passage of three laws related to the Foundation and a disbursement of $21.3 million in public funds. They also secured $921,064 for the Eurasia Foundation – a non-profit organization set up by the State Department in the 1990s to promote democracy in the former Soviet Union – to help establish the FFF.

It appears that in order to obtain the disbursement to the FFF, State Department officials deliberately misled the US Congress about the funding pledged to the Foundation by other governments. Evidence strongly suggests that section 534(k) of US Public Law 109-102, which at that time stipulated that funds could only be made available to the Foundation to the extent that they had been matched by contributions from other governments, was violated; the Foundation’s own reports show that less than $6.4 million of the $22.26 million in “matching funds” listed by the State Department in its communications with Congress as pledged ever materialized.

Especially suspicious was the State Department’s representation of a murky $10 million pledge from Qatar, the largest “pledge” of any country other than the United States. Documents indicate that the State Department knew that this pledge would never materialize when it asked Congress to disburse matching funds.

GAP’s report also suggests that FFF management – including former FFF Chairman (and close friend of Paul Wolfowitz) Anwar Ibrahim, who is currently a Malaysian parliamentarian – misled the US Internal Revenue Service. The FFF’s financial statements for 2006 and 2007 state that the Foundation did not attempt to influence national legislation, an assertion contradicted by the cables and reports released by the Department of State. These documents suggest that several Foundation representatives actively lobbied the US Congress in 2006-07 for legislative changes favorable to the FFF.

Shaha Riza

State Department documents show generous travel allowances and salaries for the office of Shaha Riza, whose nebulous duties did not seem to require such lavish financial support. Riza was paid a net salary of $180,000 to perform such tasks as reviewing a translated draft of the FFF bylaws, a PowerPoint presentation of a business plan and a translated policies and procedures manual.

The Foundation for the Future continues to operate, although the departure of both Cheneys from public office appears to have weakened its financial support from Congress. Because the vast majority of its funding comes from the U.S. government, budgetary figures indicate that the FFF will be unsustainable after 2014.

Dylan Blaylock is Communications Director for the Government Accountability Project, the nation's leading whistleblower advocacy organization.

First of all - thank you to the whistleblower supporter who started the Facebook group "Save Tom Drake!" I urge you all to visit, "like," and comment on that page.

Compare the case of Thomas Drake, the National Security Agency (NSA) whistleblower now facing an indictment under the Espionage Act and 35 years in prison for telling the truth to other recent spying cases in the media.

The FBI spent more than a decade pursuing the Russian spy ring operating under deep cover in American neighborhoods whose alleged members the New York Times has described as "the suburbs personified."

China's sentencing American geologist Xue Feng to eight years in prison for "stealing state secrets" has us outraged, and rightfully so considering Feng claims he was tortured while in custody.

However, the case of Xue Feng elucidates a particularly poignant comparison with Thomas Drake's case: in both cases, governments are using the criminal justice system to protect their claims of secrecy.

The Washington Post describes the Feng case as

a case that underscored how the Chinese government will use the legal system to protect the business interests and competitive edge of its state-run firms. . . . But China in recent years has shown an increasing willingness to use its catchall state secrecy laws -- usually invoked in matters of national security -- to protect what it considers the trade secrets of its state-run companies

Catchall state secrecy laws?  Protecting companies?  Putting aside for the moment the paradox of slamming "catchall state secrecy laws" that protect business interests after passing the retroactive telecom immunity provisions of the FISA Amendments Act, our outrage also seems incongruous considering Drake's case.

Drake's indictment stems from his contacting the Baltimore Sun in connection with a series of articles that exposed the NSA's wasteful spending on a failed multi-million dollar program and rejection of a more effective alternative that contained much-needed privacy protections for Americans.

Yet as we cry foul when China sentences eight years, the United States is prosecuting Drake under the Espionage Act for "willful retention" (not even unauthorized disclosure) of information that embodies the U.S. version of "catchall secrecy laws."  With his numerous internal complaints to his superiors at NSA, the NSA Inspector General, the Defense Department Inspector General, and the Congressional Intelligence Committees being ignored, Drake found himself where so many national security whistleblowers end up - caught between their conscience and their careers, or in Drake's case, his freedom.  When true and secret facts evidence government waste, fraud, mismanagement, abuse, or illegality (or serve only to protect business interests), we would not tolerate another country concealing them using the criminal justice system, but here in the U.S., Drake is facing over four times the eight years Feng received in China.

Meanwhile, the 11 persons allegedly operating a long-term, elaborate plot to infiltrate American institutions and steal secrets for Russia have not been charged under the Espionage Act, a law originally intended to catch spies.

This blog entry by GAP Homeland Security & Human Rights Director Jesselyn Radack is cross-posted from her column appearing on Daily Kos.

In what may be the largest settlement of its kind, the Securities and Exchange Commission (SEC) has agreed to pay $755,000 to settle the wrongful termination claim of Gary J. Aguirre, the attorney who headed the SEC’s insider trading investigation of Pequot Capital Management until his firing in September 2005.

A judge with the Merit Systems Protection Board (MSPB), the federal agency with jurisdiction over Aguirre’s termination claim, issued an order today finalizing the settlement. The settlement sum equals Aguirre’s pay for four years and ten months (the elapsed period since his September 2005 discharge), plus his attorneys’ fees. Aguirre agreed to dismiss two related cases against the SEC.

This post also appears on GAP Homeland Security Director Jesselyn Radack's Daily Kos blog.

UPDATED 12:23 PM: Earlier today I argued that, in light of the Obama administration going after reporters and sources, Wikileaks is the only avenue left.  In the comments I stated that Wikileaks is not ideal because it lacks the fact-checking and at-least-the-pretense-of-balance of journalism.  I stand corrected.  In Mr. Assange's own words, BREAKING:

This idea is spin by those connected to the abuses we have revealed, however, it is simply not true.

1. There has never been a documented case of WikiLeaks misattributing a document.  We have a perfect record over three years of publishing.  Compare this record with any other publisher of political materials.
2. In the U.S. a lot of the anti-Wikileaks propaganda comes from military apologists attempting to undermine the strength of http://collateralmurder.com/ by attacking its messenger.  However, read that website carefully and all statements made in the video itself.  You will see that even after other details have come to light, none require corrections.  Why? Because we fact-checked--to the degree of sending people to the most dangerous part of Baghdad during election time to do it.  Who else has such demanding standards?
3. We push the ideal of "scientific journalism"--all primary sources for every article made available.  It's our invention because we love fact-checking and want others to check our facts to prove our good work.
4. On the balance issue.  You're right.  We don't believe in "balance"--we believe in accuracy and fairness.  That is an important difference and higher standard.  The truth is not revealed by balancing the lies of competing powergroups--that is a job for politicians.  We, as servants of the historical record, have a higher standard.

I can't argue with that, Julian Assange.  THANK YOU for what you are doing and for your bravery in contacting me.

In many cases, like that of Bradley Manning, we end up slamming "leakers" for going to Wikileaks instead of questioning why American soldiers used an Apache helicopter to shoot unarmed Iraqi civilians, journalists, and children, while egging each other on like they were playing Call of Duty.

If the Obama administration so despises disclosures to the media or Wikileaks, giving protections and options to national security whistleblowers should be priority one.  In the meantime, I submit that it is the government officials who engaged in torture, warrantless wiretapping, and "collateral murder" who have endangered our national security, and not those who exposed the wrongdoing.

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Jon Stewart's monologue on The Daily Show should be required watching for any doubters about Obama and civil liberties (he discusses Thomas Drake and whistleblowing at 7:00):

The Daily Show With Jon Stewart	Mon - Thurs 11p / 10c
Respect My Authoritah
www.thedailyshow.com
Daily Show Full Episodes Political Humor Tea Party

On Obama's watch, national security whistleblowers find themselves exempt from the Whistleblower Protection Act, crippled by the inaptly-named "Intelligence Community Whistleblower Protection Act" (which provides zero real protections for employees) and now, thanks to Obama's recent crackdown on "leakers", whistleblowers--fearing criminal prosecution should they turn to the media (often the only real check on government abuse of power)--can only go to Wikileaks.

Wikileaks may be the only option left for employees who see waste, fraud, abuse or illegality in the national security realm. This is certainly not ideal, as Wikileaks lacks the fact-checking and at-least-pretense-of-balance of journalism.

I appeared on two recent shows on NPR and Pacifica Radio that detail the debate over Wikileaks and Obama's stance on so-called "leakers." (Remember, we called them whistleblowers during the Bush administration). The radio shows are available here and here.

I've chronicled the Obama administration's recent dedication to criminalizing whistleblowing to a greater extent than any other president in history:

Thomas Drake (former senior National Security Agency official)- Stemming from a Bush leak investigation into the warrantless wiretapping program, recently indicted for allegedly retaining classified information that led to a series of newspaper articles about NSA's billion-dollar mismanagement of a program to conduct secret surveillance with maximum privacy intrusion.

James Risen (New York Times reporter)- Justice Department reissued Bush-era grand jury subpoena for his sources for a chapter of his 2006 book, State of War, which focuses on a CIA-led ruse to disrupt Iranian nuclear weapons research.

Shamai Leibowitz (FBI linguist)- sentenced to 20 months in prison for giving classified information to a blogger.

Bradley Manning (Army Intelligence Analyst)- arrested for allegedly disclosing to Wikileaks classified video footage [titled "Collateral Murder"] of an apache helicopter attack that killed unarmed Iraqi civilians, including two Reuters reporters, and injured two children.The crackdown has received support from giddy conservatives like Gabriel Schoenfeld, author of Necessary Secrets, and supporter of prosecuting under the Espionage Act not only leakers, but - much to the chagrin of the First Amendment - also the journalists and newspapers who help get the truth out. . .and by logical extension, anyone who reads the articles and further disseminates them by discussing or e-mailing them on.

As much as Schoenfeld would like us to believe in some mythical state of whistleblower protections for national security employees where employees can easily blow the whistle and merrily go about their careers, the reality for national security whistleblowers is tragically different.