The language of the First Amendment on the outside of the Newseum in Washington, DC. Photo courtesy of Flickr user neko687First Amendment infringements.
The Washington Post editorial board opines on Middleborough, Massachusetts, where
they voted 183-50 in a town meeting last Monday to approve a proposal that would, among other things, impose a $20 fine on public profanity . . .
Whatever the law's noble intent, such a vague, over-broad assault on the First Amendment will no doubt be struck down as unconstitutional.
Then we have Michigan State Representative Lisa Brown being gagged from speaking because she dared to use the word "vagina" in protesting a bill that would limit abortion rights.
While the Twittersphere delights in the hashtag "#vagina" and we chortle over the puritanical tendencies of Middleborough, MA, these silly measures are symptomatic of a greater assault on the First Amendment, evidenced in the recent hysteria over "media leaks," which has already led to attacks on the free press, and, even more offensive the First Amendment, could lead to an over-broad "Official Secrets Act."
All of these attacks on the First Amendment quash the constitutionally-sacred "marketplace of ideas" and limit the public's right to know. The First Amendment is critical to a functioning democratic society, and if we continue to attack it, whether it be in small town halls, local State Houses or the halls of Congress, we weaken our country.
Yesterday before the Senate Judiciary Committee, Attorney General Eric Holder defended his choice to appoint two U.S. attorneys to investigate the latest "leaks" and again rejected calls from Committee Members to appoint a more independent special counsel. Congress is understandably outraged at the Obama administration's hypocrisy of waging an unprecedented war on whistleblowers using the archaic Espionage Act while feeding pro-government information to the media.
In 2000, Congress created and passed a broad anti-leak measure without holding public hearings. President Clinton vetoed the bill because, although the bill was well-intentioned, it would
. . . chill legitimate activities that are at the heart of a democracy.
The difference between 2000, when Clinton vetoed the bill, and now, when the Obama administration has waged an unprecedented war on whistleblowers and Congress is again considering creating anti-leak legislation, is the 9/11 attacks. But just because 9/11 happened does not change the relevancy and power of Clinton's warning against broad anti-leak measures. We have already given away too much of our freedom because of 9/11.
Both conservatives and liberals condemned the [anti-leaks] bill.
Rep. Bob Barr (R-Ga.) said the provision amounted to an "official secrets act" that would "silence whistle-blowers." Rep. Nancy Pelosi (D-San Francisco) said Congress was "foolish to give a blank check to the executive branch" that would allow it to punish its internal critics.
Considering some of the rhetoric surrounding Congress' understandable indignation at the Obama administration's hypocrisy of prosecuting low and mid-level officials while feeding the media pro-government information that the administration continues to claim is classified, Congress is in danger of making the same mistake it did in 2000.
I've been saying from the beginning that the Obama administration's war on whistleblowers is a back door way of creating an Official Secrets Act, something this country has managed to go without for over 200 years.
The most dangerous thing that can come out of the latest "leak" hysteria is that Congress will pass some broad anti-leak law, which will undoubtedly be used against whistleblowers. With secrecy experts universally agreeing that rampant overclassification plagues the classification system and more information being classified than ever before, any broad anti-leak measure that criminalizes disclosing any classified information is impractical and will more likely serve to punish dissenters than to stop leaks that harm national security.
The latest hysteria over "leaks" stems from both the Obama administration's record-breaking Espionage Act prosecutions of suspected "leakers," who are usually whistleblowers, and from Congress' justifiable outrage at the Obama administration's hypocrisy of prosecuting low and mid-level officials while feeding the media pro-government information that the administration continues to claim is classified.
Rejecting calls to appoint a special prosecutor, Attorney General Eric Holder appointed two prosecutors to investigate the latest leaks. A number of respected commentators have expressed that it will be difficult to prosecute the high-level Obama administration officials that have been leaking supposedly-highly classified information.
Although the last thing this country needs is another "leak" investigation, there are certainly some "leaks" that can be easily traced. At least in one obvious case, Justice Department officials must have been involved in disclosing information, meaning with no special prosecutor, the Justice Department will be investigating itself, a task it has been notoriously terrible at in the past, as my personal experience taught me all too well.
Over the weekend, The Listening Post, an Al Jazeera program, aired an episode entirley focused on exploring the Obama administration's attack on intelligence whistleblowers. In the past few years, the administration has charged six intelligence whistleblowers under the Espionage Act, an archaic legislation that was enacted during World War I to catch spies. These six prosecutions are more than all other past administrations combined.
GAP has spent a lot of time on this issue. It is telling that, despite the implications this has for journalists, there has been a major lack of coverage in the mainstream media. However, the foreign press seems to get it. GAP National Security & Human Rights Director Jesselyn Radack highlighted this in her blog earlier today.
The case of NSA whistleblower and GAP client Thomas Drake was used to exemplify the trumped-up nature of many of these prosecutions. Charges against Drake were dropped shortly before trial last June, when he pled guilty to a misdemeanor and was sentenced only to a year of probation (no fine). That's a far cry from the 35 years the federal government was seeking to put Drake away for.
GAP Executive Director Bea Edwards is also among those interviewed about the current status of whistleblowers in the US. But the second half of the show features an extensive interview with Radack, herself a DOJ whistleblower in the case of "American Taliban" John Walker Lindh. She challenges American media to dig further and address the issue. Radack calls this attack on intelligence whistleblowers the "worst crackdown on public information that we've seen since the McCarthy era."
Hannah Johnson is Communications Associate for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.
Now that a bi-partisan group of congressional intelligence committee members has brought Obama's hypocrisy on leaks to the forefront for American mainsteam media (MSM), the contrast between coverage from foreign press and American MSM has never been more stark.
Last week's New York Times article serves as a reminder that our public debate about the government's bureaucratized killing program is based almost entirely on the government's own selective, self-serving, and unverifiable representations about it.
This weekend, Al Jazeera English ran a long investigative piece on the whistleblower prosecutions, and the relative lack of coverage in the American MSM. Watch the entire segment here.
After the Justice Department's case against National Security Agency (NSA) whistleblower Thomas Drake collapsed in spectacular fashion days before trial, Drake's first T.V. appearance was on Russian Television.
In contrast, here in the U.S., it was the blogosphere – NOT the MSM – that focused on the Obama administration's record-breaking number of Espionage Act prosecutions against non-spies, who more often than not are whistleblowers. I called it "criminalization of whistleblowing," but Glenn Greenwald coined the less-wordy moniker "war on whistleblowers." I wrote two years ago that the Obama administration was turning sources and reporters into criminals. And, I received more HR's than ever before when I accused the Obama administration of playing politics with anonymous leaks on national security, an accusation members of Congress on both sides of the aisle have made repeatedly in the past week.
Both the Washington Post and New York Times reported on the House and Senate Intelligence Committees' recent outrage at the volume of "authorized, intentional leaks" of classified sources and methods from the Obama administration.
I have a particular interest in this issue as I represent half-a-dozen whistleblowers either being criminally prosecuted, investigated, or threatened with prosecution for making whistleblowing disclosures exposing government waste, fraud, abuse, mismanagement, illegalities, or a danger to health and public safety.
Both Democrats and Republicans on the Intelligence Committees are rightfully ticked off about the disparate treatment for so-called "leaks," especially considering the Obama administration has prosecuted more whistleblowers under the heavy-handed Espionage Act than all past presidents combined. Using the criminal justice system to target whistleblowers is damaging enough, but doing so while simultaneously "leaking" classified information that provides a political benefit is brazen hypocrisy.
Senator John McCain wrote on the Obama administration's hypocrisy:
“The fact that this administration would aggressively pursue leaks perpetrated by a 22-year-old Army private in the Wikileaks matter and former CIA employees in other leaks cases but apparently sanction leaks made by senior administration officials for political purposes is simply unacceptable,” Sen. McCain said.
The Intelligence Committees promised legislation to stop the flow of leaks:
Citing “the accelerating pace of such disclosures,” the two committees said in a joint statement that they planned to “act immediately” by bolstering legal restrictions and putting new pressure on the Obama administration to stanch the flow of secrets.
