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Tom Drake, from the Facebook page
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.
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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.
Government Accountability Project Legal Director Tom Devine stated “Unfortunately, this large settlement is the exception that proves the rule. Until Congress provides real protections for financial regulatory employees such as Aguirre, existing law will remain the best excuse for government regulators to turn a blind eye.”
The SEC’s settlement with Aguirre comes one month after the SEC filed insider trading charges against Pequot, its founder, Arthur Samberg, and David Zilkha, a former Pequot employee, based on facts uncovered by Aguirre. Pequot and Samberg paid the SEC $28 million to settle the charges against them. The case against Zilkha continues.
In August 2007, two Senate committees published a scathing 108-page report criticizing the SEC’s decision to fire Aguirre and close the Pequot investigation, which included Pequot’s suspected insider trading in securities of 20 publics companies.
The Senate report chronicles Aguirre’s promising career at the SEC, including management’s decision to give him a two-step pay raise at the end of his first year for “consistently [going] the extra mile, and then some.”
But the praise vanished when Aguirre tried to subpoena an elite Wall Street banker, John Mack. His supervisors blocked the subpoena, telling Aguirre that Mack had “juice” and “political clout.”
Aguirre’s July 27, 2005, email to his supervisors explained why the Mack subpoena was essential and expressed concern that “treating Mack differently is [not] consistent with the Commission’s mission.” The Senate Report tells what happened next: “Just days after Aguirre sent an e-mail to Associate Director Paul Berger detailing his allegations, his supervisors prepared a negative re-evaluation outside the SEC’s ordinary performance appraisal process.”
One month later, the SEC fired him without warning. The Senate report concluded that Aguirre’s “termination appears to be merely the culmination of the process of reprisal that began with the August 1 re-evaluation.”
Approximately one year after the Senate report, SEC Inspector General H. David Kotz delivered his own report on Aguirre’s firing to then-SEC Chairman Christopher Cox. Kotz recommended that Aguirre’s supervisors be disciplined. To date, neither the current SEC Chairman, Mary Schapiro, nor Cox, has done so.
The Pequot investigation appeared to have run its course when the SEC released its “Case Closing Report” in December 2006, explaining its decision to close the entire investigation, including Pequot’s trading in Microsoft options, without filing charges.
But Aguirre did not stop his Pequot investigation. He continued to collect and piece together the evidence that Samberg had used illegal tips to trade options on Microsoft stock. In April 2008, Aguirre obtained a court order forcing the SEC, over its objection, to turn over to him key records of its Pequot investigation.
In late 2008, Aguirre uncovered the last pieces of evidence necessary to prove an insider trading charge against Pequot, Samberg, and Zilkha. On January 2, 2009, Aguirre sent a letter to SEC Chairman Cox enclosing the new evidence.
Aguirre’s 16-page letter explained how this new evidence, when combined with the evidence uncovered by him in 2005, proved that Samberg had used illegal tips in directing trades in Microsoft options, generating $14.2 million in profits to Pequot hedge funds under his management. But still the SEC would not file a case.
On May 26, 2010, Aguirre filed papers in his FOIA case seeking an order directing the SEC to release additional Pequot records to him. He argued the SEC had to turn over the records under FOIA, because it had filed no case against Pequot or anyone else. Early the next morning, the SEC filed charges against Pequot, Samberg, and Zilkha. The allegations closely track the facts stated in Aguirre’s January 2, 2009 letter.
Asked how he feels about the settlement, Aguirre replied, “I think it’s fair to the public that the SEC pays for my work over the past four years and ten months, since it generated $28 million to the U.S. Treasury. But it’s a shame the team I worked with at the SEC did not get to complete the Pequot investigation. The filing of the case in 2005 or 2006, before the financial crisis, would have been exactly what Wall Street elite needed to hear at the perfect moment: the SEC goes after big fish too.”
Dylan Blaylock is Communications Director for the Government Accountability Project, the nation's leading whistleblower advocacy organization.
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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.
- 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.
- 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?
- 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.
- 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.
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):
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.
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Wired reports that an Army intelligence analyst working in Iraq was arrested two weeks ago for allegedly passing classified information to the whistleblowing website Wikileaks.org, including the 2007 video of a military helicopter firing on a group of unarmed civilians in Baghdad. The analyst has also allegedly given Wikileaks a video of another notorious air strike, 260,000 classified US diplomatic cables, and a document that classified Wikileaks as a security threat to the military.
This news comes in the wake of a New Yorker profile of Wikileaks founder Julian Assange, and a rundown of extraordinary lengths gone to by the organization to post high profile, and sensitive, information online. That article mentions an award bestowed to Wikileaks from Amnesty International for the site's work to expose corruption in Kenya, and calls the 2007 air strike video released by Wikileaks "a striking artifact—an unmediated representation of the ambiguities and cruelties of modern warfare."
Bradley Manning, who allegedly released that video, was arrested after contacting a former hacker. The hacker, in turn, told the Army about Manning's activities, saying he reported Manning, despite donating money to Wikileaks in the past, because he believed a leak of the classified diplomatic cables were genuinely dangerous to national security. He said to Wired: “I wouldn’t have done this if lives weren’t in danger.“
Manning told the former hacker that he felt compelled to share the classified information with Wikileaks because he saw “incredible things, awful things … that belonged in the public domain, and not on some server stored in a dark room in Washington DC.”
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A new study of insiders who blow the whistle on drug company fraud has found that all of the whistleblowers were primarily motivated by ethics rather than possible financial rewards.
However, the study also found many of the whistleblowers paid a tremendous personal cost for their disclosures and a vast majority experienced retaliation from employers, including being harassed, blackballed, and fired. Many were unable to secure other jobs during and after the investigations and some experienced personal health problems including panic attacks.
The lead author of the study, Dr. Aaron Kesselheim, an instructor in medicine at Harvard Medical School, stated:
"A lot of them express a very strong ethical compass that they think guides them but, boy, they really do suffer a lot for the public good that they perform."
Kesselheim also stated:
"The whistle-blowers need more support in the process of bringing the case forward."
As the article notes, the Justice Department currently has more than 1,000 whistleblower cases waiting to be investigated. From 1996 through 2005, health care fraud whistleblowers have led to the recovery of more than $9 billion.
GAP has long known that whistleblowers come forward because they "want to right a wrong, or bring to light something that was ethically compromised."
We have seen many whistleblowers come forward with no possibility of any financial reward. Instead, many are either forced to leave their jobs or choose to leave after experiencing retaliation.
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GAP coalition partner Public Citizen is calling on the FDA to stop a trial that compares the effects of diabetes drugs Avandia and Actos.
The group argues that the study, named TIDE, endangers the health of the 16,000 participants it intends to study because "a wealth of data now suggests" that Avandia poses significant risk to the heart. Public Citizen contends that TIDE is "exposing thousands of high-risk patients with diabetes to a drug with an unfavorable safety profile and no clinical advantage over [Actos]."
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Yesterday the Department of Justice announced it was joining a whistleblower lawsuit filed against KBR - the Army's largest contractor in Iraq, and a former subsidiary of Halliburton. The suit alleges some KBR employees received kickbacks, including food, drinks, and tickets to sports events from two air cargo companies. An Assistant Attorney General said:
“Defense contractors cannot take advantage of the ongoing war effort by accepting unlawful kickbacks. We are committed to maintaining the integrity of the Department of Defense's procurement process."
On the very same day, the Army announced that it was awarding KBR a $586 million no-bid contract for support services to the military in Iraq, despite the fact that following pressure from Congress in 2008 on no-bid contracts, the Army has bid out all of its logistics orders. The Army argues that it chose KBR because transitioning a new contractor would be disruptive and expensive.
However, the Army's reluctance to change contractors may be costing American taxpayers money: On April 1, the DoJ sued KBR alleging it violated its contract by using private security guards and improperly charging the Army for their services.
The lawsuit was the first action by the United States against KBR despite continuing criticism from lawmakers and overseers about KBR inflating its costs in Iraq and Afghanistan, and a steady stream of whistleblowers coming forward about fraud and abuse practiced by the company.
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Government Accountability Project Homeland Security Director Jesselyn Radack posted an extremely popular blog yesterday on her Daily Kos Diary about the recent aggressive behavior by the Obama administration toward reporters and sources.
The administration authorized a subpoena Monday that would require a New York Times journalist to turn over documents and testify about his confidential sources for a chapter of his 2006 book, State of War: The Secret History of the C.I.A. and the Bush Administration. Journalists James Risen and a colleague won a Pulitzer Prize in 2006 for reporting on the NSA's warrantless wiretapping program. That article had been blasted by the Bush administration, which opened an investigation into the sources used by the journalists. But no one was indicted under Bush.
Was the Risen subpoena an aberration? Apparently not. The Obama administration has indicted a NSA source for blowing the whistle on agency mismanagement. In a follow-up blog on Daily Kos. Radack quotes a statement by President Obama on government whistleblowing:
Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled.
The official who was indicted is Thomas A. Drake, a former senior executive for the NSA. As the Washington Post notes, "[Drake] has not been accused of sharing the most sensitive of the NSA's secrets: the means it uses to intercept e-mails and phone calls around the world, or the tools it employs to crack adversaries' codes." Instead, Drake was indicted on charges that he mishandled classified information and tried to obstruct an investigation of his actions. What was the information that he "mishandled?" As Radack writes, the information led to articles in the Baltimore Sun that "exposed technical failings and cost overruns of several agency programs that cost billions of dollars."
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This op/ed by GAP Homeland Security Director Jesselyn Radack appeared today in the Los Angeles Times.
The case of Thomas A. Drake, a former National Security Agency official indicted last week on charges of providing classified information to a Baltimore Sun reporter, is painfully familiar. In 2002, I became the target of a leak investigation stemming from America's first post- 9/11 terrorism prosecution.
As a Justice Department ethics attorney, I had inadvertently learned of a court order for all copies of Justice's internal correspondence about the interrogation of the so-called American Taliban, John Walker Lindh. Although I had written more than a dozen e-mails on the subject, the Justice Department had turned over only two of them, neither of which reflected my conclusion that the FBI committed an ethics violation in its interrogation and that Lindh's confession might have to be sealed. I checked the hard-copy file, which had been a thick, stapled stack of paper. It had been reduced to three rather innocuous e-mails and fax cover sheets from my boss to senior Justice officials.
I resurrected the missing e-mails from the bowels of my computer archives, gave them to my boss and resigned. I also took home a copy of them in case they "disappeared" again. As a criminal case proceeded against Lindh — and the Justice Department, by all appearances, still had not turned over the e-mails — I decided to give them to the media.
The Justice Department then unleashed an investigation that had nothing to do with ascertaining why someone would divulge government documents, and everything to do with plugging the leak. Anonymous senior Justice officials smeared me in the media as a "traitor," "turncoat" and "terrorist sympathizer." They told my new employer, a private law firm, that I was a criminal and would steal client files. They leaned on the firm to fire me. The firm put me on unpaid, indefinite administrative leave instead. When I was awarded meager unemployment benefits, the government assisted the firm in contesting them.
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Scott Bloch, the controversial former head of the Office of Special Counsel during much of the Bush administration, was charged yesterday with criminal contempt of Congress by the feds. Media reports are also stating that Bloch plans to plead guilty, in what can only be seen as an admission that he did indeed withhold information from congress.
The OSC, of course, is the federal agency that is charged with investigating the concerns of federal employee whistleblowers, and protecting them from retaliation. Bloch was let go by the Bush administration in late 2008, after a seemingly endless string of controversies involving his leadership of the agency. These included, among numerous others, that he attempted to purge his staff of homosexuals, and that the total number of federal employees helped by OSC plummeted during his tenure.
According to the court papers, Bloch failed to give the House committee staff a complete explanation about his instructions that the repair firm, Geeks On Call, perform data deletions on Bloch's computers and on computers of two non-career appointees at Bloch's office.
Bloch told the House investigative staff that the data wipe was done to protect government and personal information on the computer, not to destroy it, according to interview transcripts.
That was one heck of a day in May 2008 when federal agents raided the OSC and the home of Bloch, confiscating numerous computers and file data related to the Geeks On Call fiasco.
GAP was long critical of Bloch, and we’re not surprised by this news. What we do continue to be surprised at, however, is the delay and failure of the Obama administration to appoint a new head of this crucial agency that acts to safeguard against government wrongdoing. The office has been operating without a head for 18 months now. It needs a leader.