The government's not ticked that the Underwear Bomber II ("undie-bomber") plot got out, they're just pissed about the sputtering, messy, and misleading way in which it got out.

The National Journal has a piece on how "New FBI Probe of Bomb Plot Highlights Administration's Tough Stance on Leaks." As evidence of Obama's crackdown on leakers--which, until now, has been primarily a war on whistleblowers--it offers the fact that the FBI has launched a criminal probe to identify the government officials who leaked the undie-bomb plot as

the latest indication of the Obama administration's unrelenting push to find and punish those sharing classified information with the media.

But I distinguish this "leak," which appears to have come from the administration for political gain, from those by whistleblowers trying to expose government wrongdoing--some of whom are my clients mentioned in the National Journal article. In the case of the undie-bomber, the leak appears to be government self-aggrandizement--not a government employee trying to disclose evidence of wrongdoing--at the expense of sources, methods and possibly an undercover intelligence agent's identity.

In the initial Associated Press version (which turns out not to have been the original since the L.A. Times did an earlier version), the Underwear Bomber II ("undie-bomber") plot was initially spun as

[t]he CIA thwarting an ambitious plot by al-Qaeda's affiliate in Yemen [AQAP] to destroy a U.S.-bound airliner using a bomb with a sophisticated new design around the one-year anniversary of the killing of Osama bin Laden . . . The would-be suicide bomber, based in Yemen, had not yet picked a target or bought a plane ticket when the CIA stepped in and seized the bomb, officials said. It's not immediately clear what happened to the alleged bomber.

On Monday, the American Civil Liberties Union (ACLU) sent a powerful letter supporting my client, whistleblower Peter Van Buren. Van Buren authored a book (We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People), which exposed the massive reconstruction fraud he observed while serving as the leader of two Provincial Reconstruction Teams teams in Iraq.

Beginning around the time his book was to be published, the State Department engaged in a series of retaliatory actions including suspending Van Buren's security clearance, barring him from accessing the State Department building, monitoring all of his online activities taken on personal time using his personal computer, placing him on administrative leave, transferring him to a makeshift telework position, and finally, proposing firing Van Buren. The ACLU said it best in Monday's letter to the State Department's Under Secretary for Management, Patrick Kennedy:

We believe that the State Department's actions constitute a violation of Mr. Van Buren's constitutional rights . . . This proposed termination for Mr. Van Buren's speech raises substantial constitutional questions and creates the appearance of impermissible retaliation for Mr. Van Buren's criticism of the State Department. The Supreme Court has long made clear that employees are protected by the First Amendment when they engage in speech about matters of public concern.

(emphasis added).

The ACLU's Ben Wizner elaborated on the State Department's likely motivation for targeting Van Buren in Wired:

“There’s nothing he has done that would trigger his firing had he not been a vocal critic of the State Department’s policies,” Wizner told Wired. “He’s coming to the end of his career. It calls into question why they’re going to the trouble of firing this guy except to send the message to other government employees that they should stay in their lane.”

National Security Agency (NSA) whistleblowers Thomas Drake, Bill Binney, J. Kirk Wiebe, Edward Loomis, and Diane Roark have been through enough. They were targeted with a federal criminal investigation and subjected to armed FBI raids in July 2007. Binney had a gun pointed to his head as he stepped out of the shower. Drake has the dubious distinction of being the fourth person in U.S. history (and first by the Obama administration) indicted under the Espionage Act for alleged mishandling of classified information.

They have since been forced to sue NSA in an attempt to recoup property the government took in 2007. First, NSA claimed it would take an inordinately long time to perform the "arduous process" of reviewing the seized materials for classified information. (A brief pause to consider the ridiculousness of our nation's massive spy agency needing extra time to go through a few hard drives it has had for over four years). Perhaps the difficulty came because NSA's process involved essentially "word searching" the computers for key terms like "NSA" and "TOP SECRET" to find supposedly classified information.

When the Court tired of NSA's excuses and ordered NSA to actually respond to the whistleblowers' lawsuit, NSA moved on May 11th to dismiss the lawsuit claiming that all the property NSA still has is classified.

NSA's latest claims of secrecy are especially incredible considering NSA couldn't find a single shred of classified information in Drake's home in order to make their Espionage Act case against him stick. The case collapsed in spectacular fashion days before trial when the government dropped all felony charges in exchange for Drake pleading to a minor misdemeanor not involving classified information. Bush's former classification czar (J. William Leonard) said about the Drake case that he had never seen a "more deliberate and willful example of government officials improperly classifying a document." Yet, NSA bizarrely continues to stubbornly claim that there is classified information on Drake's computers.

Have we learned nothing from the Bush-era warrantless wiretapping scandal that once threatened the near collapse of the Executive Branch?

WaPo reports on the latest merger of telecom and private industry in sharing customers' information with government agencies:

The Pentagon predicts that as many as 1,000 defense contractors may join a voluntary effort to share classified information on cyberthreats under an expansion of a first-ever initiative to protect computer networks.

After a pilot program that involved 36 contractors and three of the biggest U.S. Internet providers, the Obama administration approved a rule letting the Pentagon enlist all contractors and Internet providers with security clearances in the information exchange . . .

As I pointed out on Twitter: Government Spy Agencies + Telecoms = unholy partnership Americans ought to approach with the greatest skepticism.

Of course it is couched with nice-sounding goals like protecting "national security" and protecting us from vicious "cyber attacks," but approaches to reforming cyber-security too often include over-broad privacy-threatening measures. Privacy and civil liberties groups (like GAP) have repeatedly voiced their concerns with overreaching cyber-security measures, like the Cyber Intelligence Sharing and Protection Act of 2011 (CISPA), which the House passed last month. The broad coalition of advocacy groups warned:

James Risen of The New York Times, James Bamford, author of The Puzzle Palace: Inside the National Security Agency, America’s Most Secret Intelligence Organization and Matthew Miller, former spokesman for the Justice Department, discussed the Obama administration’s crusade against leaks of government secrets – and against some of the journalists who report them – at the National Press Club in Washington on May 1, 2012.

I had a chance to ask Bamford and Miller a question about the State Department’s assertion that despite being available online to the entire world, the WikiLeaks documents remain “classified,” and indeed government employees can be prosecuted for referring to them. Here is his reply (it should start around the 56' mark):

Last night, the National Press Club and Overseas Press Club of America hosted a prestigious panel discussion on Obama's war on whistleblowers. (Jake Tapper was set to moderate the discussion, but was called away for President Obama's "last year we got Bin Laden" speech).

First to speak was New York Times journalist and author Jim Risen, subject of three subpoenas – including two by the Obama administration – to testify about his sources in the Espionage Act case against former CIA officer Jeffery Sterling. Risen explained the history of the Executive branch's pursuit of his sources.

First, the Bush administration launched a multi-million dollar, multi-year "leak" investigation searching for the sources for his (and Eric Lichtblau's) Pulitzer Prize-winning 2005 article that exposed the National Security Agency's (NSA) unconstitutional warrantless wiretapping program. When that investigation dried up, the Bush administration – and later the Obama administration – targeted several chapters in his book, State of War, finally landing on the chapter about the CIA's botched attempt to sabotage Iran's nuclear program for which Sterling is the suspected source.

In its recent court filings in the Sterling case, the Obama Justice Department argued that there is no reporter's privilege in a criminal case. Risen was unable to discuss the case specifically as it is currently set for oral argument before the Fourth Circuit on May 18th, but he did eloquently articulate the reason for his battle:

Can you have a democracy without aggressive investigative journalism? I don't believe you can, and that's why I'm fighting.

(paraphrased).

Risen's fellow panelist, NSA expert and author James Bamford, brought the powerful visual of two massively thick binders that would have been his testimony in the Espionage Act case against NSA whistleblower Thomas Drake. (Bamford did not testify because the government's case crumbled under the weight of the truth days before trial). Bamford explained that his testimony would have shown that all of supposedly classified information the Justice Department was claiming Drake illegally retained was not only in the public domain, but put into the public domain by NSA and Executive branch officials. When it comes to government claims of classification, Bamford said he knows from experience that:

You have to fight them every chance you get.

(paraphrased).

The audience was as prominent as the panel, and included NSA whistleblower and former Espionage Act defendant Thomas Drake, CIA whistleblower and current Espionage Act defendant John Kiriakou, and We Meant Well author and whistleblower Peter Van Buren.

No one from the Justice Department showed up because they supposedly can't discuss the cases, though that didn't stop them from issuing prolix prejudicial press releases detailing the indictments of Thomas Drake and John Kiriakou. Former Justice Department spokesperson Matthew Miller – the self-appointed Justice Department flak for the war on whistleblowers – showed up to defend the Justice Department's Espionage Act prosecutions, and found little common ground from the panel or the audience. Rightfully so, considering Miller's comments ranged from uninformed to shameless Administration spin. A quick list of everything Miller got wrong:

1. Miller claimed that while Thomas Drake seems to be a whistleblower (something the Justice Department vehemently denied throughout the case), it is "hard to argue" that the other Espionage Act defendants, particularly John Kiriakou, are whistleblowers.

*Wrong. I explained the whistleblowing of the Espionage Act defendants in my recent Salon piece, but to summarize:

FBI translator Shamai Leibowitz made his disclosures because of all-too-real fear that Israel might strike nuclear facilities in Iran.

Drake disclosed unclassified information about a failed and wasteful (multi-billion dollar) NSA spy program that compromised Americans' privacy.

State Department arms expert Steven Kim is accused of leaking to Fox News that North Korea was planning to response to a U.N. Security Council resolution by setting off another nuclear test - surely of public interest to China and South Korea.

Sterling is accused of being a source of Jim Risen's book, the chapter on the botched CIA effort to sabotage the Iranian nuclear program.

Kiriakou blew the whistle on waterboarding and helped expose the CIA's torture program as policy rather than the actions of a few rogue agents.

2. Miller claimed that the case against Kiriakou is not about Kiriakou's disclosures on waterboarding.

*Wrong again. The entire case against Kiriakou stems from information obtained by attorneys defending Guantanamo detainees (the victims of torture) in an effort to identify their torturers - a no-brainer in an Article III court but in the not-quite-due-process land of military commissions, an immense challenge.

Moreover, the only difference between Kiriakou and the 22 other sources for the 2008 New York Times article for which Kiriakou allegedly gave information or the people who gave the Guantanamo defense team some 69 other names of alleged torturers, is that Kiriakou was the first CIA officer to call waterboarding torture - classic whistleblowing.

         3. Miller claimed that Kiriakou's conduct harmed or could harm national security because he allegedly leaked the name of a covert operative.

*I didn't get a chance to ask Miller the name of the covert operative Kiriakou supposedly "leaked," but if I had Miller would not have been able to answer becuase - as Thomas Drake pointed out to Miller during the Q & A - the name has never been released publicly. It appeared in a sealed Guantanamo filing. How exactly does it harm national security to have Guantanamo detainees' attorneys properly handling classified information in order to afford detainees a closer-to-fair trial?

         4. Miller also contended that in most cases whistleblowers should go to the Inspectors General or Congressional oversight committees.

*What Miller conveniently left out was the fact that NSA whistleblower Thomas Drake went to the House and Senate Intelligence Committees and to the Department of Defense Inspector General, only to have his protected whistleblowing disclosures used against him in an Espionage Act prosecution.

If Miller is going to continue doing the Justice Department's bidding, he ought to at least get his facts straight.

Jesselyn Radack is National Security & Human Rights Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization. This column originally appeared in her Daily Kos diary. 

Prosecute Jose Rodriguez for violating the anti-torture statute (18 U.S.C. § 2340A).

He did it.  Enjoyed doing it. And would do it again.

Rodriguez admitted on 60 Minutes that he organized, ordered, and destroyed evidence of "enhanced interrogation techniques." Yesterday's 60 Minutes featured CIA rendition-supporter/torture proponent/videotape destroyer Jose Rodriguez, giving him a platform to pimp his new book, Hard Measures: How Aggressive CIA Actions After 9/11 Saved American Lives, which discusses CIA black sites and touts torture. (It should not be lost on anyone that Simon & Schuster gave Rodriguez a book contract, 60 Minutes gave Rodriguez a main-stream-media platform, and CBS owns both Simon & Schuster and 60 Minutes.)

Despite Rodriguez admitting his crimes on national television, the only person the Obama administration has criminally prosecuted in connection with the Bush-era torture program is John Kiriakou, who refused to participate in torture and blew the whistle on waterboarding.

How can we be a nation of laws when a former government official can proudly boast about his criminal behavior on national television without consequence?

Rodriguez's callous descriptions of torture do not make his behavior any less criminal:

We made some al Qaeda terrorists with American blood on their hands uncomfortable for a few days.

Rodriguez adopts the Nixonian "logic:" "if the President approves it, it's not illegal." This shouldn't save him from prosecution. "No one is above the law" – at least that is what Attorney General Holder told the Senate under oath during his confirmation hearings. Moreover, despite Rodriguez's stubborn re-naming waterboarding an "enhanced interrogation technique," there is no credible debate about whether waterboarding is torture. We can thank Attorney General Holder for that as well, as he unequivocally agreed under oath that "waterboarding is torture."