White collar criminal defense attorney Abbe Lowell published an insightful op-ed in theWashington Post about the Justice Department's bad choices in spending millions in taxpayer dollars prosecuting John Edwards and Roger Clemens. Lowell's conclusions are well-taken:
Another concern is how prosecutors brought these cases. The Justice Department chose not to prosecute or granted immunity to people for whom evidence had showed they had committed the real wrongdoing in order to get the person the government alleged was “higher up” in the scheme. . . . The lack of proportionality is breathtaking. . . .
Lowell also points to the fact that defendants must spend millions defending themselves.
Yet the cases Lowell discusses in his op-ed are against defendants (Roger Clemens and John Edwards) far more equipped that most people to weather being at the blunt end of a government prosecution. (Lowell is also representing State Department arms expert Stephen Kim, one of six people the Obama administration has charged under the Espionage Act). The whistleblowers the Justice Department has chosen to prosecute under the Espionage Act are less prepared for the bludgeon of the criminal justice system.
As for those who say that if the whistleblowers charged under the Espionage Act are innocent, they can show their innocence at trial, I ask, "Do you have an extra 1-3 million dollars to defend yourself?" That was the estimated cost of the defense for National Security Agency (NSA) whistleblower Thomas Drake. He was charged with ten felony counts, including five under the Espionage Act. The government's case collapsed in spectacular fashion days before trial, Drake pled a minor misdemeanor, and the judge lambasted the Justice Department at sentencing for putting Drake through "four years of hell." Here are just some of the costs of Drake's "four years of hell:"
A House panel led by Rep. Darrell Issa (R-CA) voted yesterdayto hold Attorney General Eric Holder in contempt after the Obama administration's first assertion of the rarely used Executive Privilege to withhold information from Congressional investigators about the botched Operation "Fast & Furious." (Full disclosure: GAP represents some of the Fast & Furious whistleblowers).
I'm no fan of Rep. Issa, and suspect this contempt citation has more to do with politics than transparency, but the Obama administration is not doing itself any favors by picking this moment and this scandal as its first assertion of Executive Privilege. To the extent the Obama administration wants to combat the recent "leak" hysteria and accusations that the White House leaked highly-classified information about sources and methods for political gain, this is a horrible moment to assert executive privilege.
The president’s move to invoke executive privilege was the first time that he had asserted his secrecy powers in response to a Congressional inquiry. It elevated a fight over whether Mr. Holder must turn over additional documents about the gun case into a constitutional struggle over the separation of powers.
But, it is not the first time the Obama administration has sought to control the flow of information to the public. The Obama administration has continually asserted the state secrets privilege to shut down lawsuits seeking accountability for Bush-era torture, extraordinary rendition, and warrantless domestic surveillance. The Obama administration's record-breaking number of Espionage Act prosecutions brought against so-called "leakers," who are usually whistleblowers, sends a disastrously chilling message to all government employees: if you reveal government fraud, waste, abuse, illegality, or embarrassing information, you risk not only choosing your conscience over your career, but also over your freedom.
WikiLeaks founder Julian Assange sought asylum from the Ecuador Embassy in London. As a signatory to the Universal Declaration on Human Rights, the Embassy has an obligation to review his application and should grant it.
Asylum eligibility has three requirements, all of which Assange meets: 1) a fear of persecution, 2) on account of a protected ground (in Assange's case, "political opinion"), and 3) a government is either involved in the persecution (in Assange's case, the United States) or unable to control the conduct of private actors.
After Britain rejected Asange's bid to reconsider extradition to Sweden to face questioning over sexual misconduct allegations (Assange has not been charged with any crime by any nation), Assange sought asylum from the Ecuador Embassy in London.
Under the criteria that even the U.S. follows, he qualifies. Few would contest that he has a valid fear of political persecution. And certainly a government, primarily the United States, is behind it. The Pentagon launched a world-wide manhunt against Assange. Senator Dianne Feinstein (D-Cal.), who chairs the Senate Intelligence Committee, wrote an Op-Ed stating conclusively that
Mr. Assange continues to violate the Espionage Act of 1917
, a law the United States has used in a brutal crackdown on whistleblowers, often involving trumped up criminal charges. (See the case of my client and fellow Kossack Tom Drake.)
On Sunday, Senator Joe Lieberman (I-CT) called for resurrecting a broad anti-leaks law that would be a de facto Official Secrets Act. (I warned that the result of the recent hysteria over leaks could be such a broad anti-leak measure that would no doubt stifle legitimate dissent.)
The law would criminalize any disclosure of classified information, despite the fact that all experts agree that the classification system is plagued by rampant overclassification, and that far too much information is deemed classified. Worse, the law would remove the intent requirement of the Espionage Act, despite the fact that the intent to harm the United States or benefit a foreign nation requirement is the only thing making the Espionage Act constitutional.
Lieberman's proposal would chill First Amendment-protected activity, criminalize whistleblowing, and cover everything from whistleblower disclosures, press briefings, and anyone who repeats or reprints previously leaked classified information.
I discussed Lieberman's misguided proposal on RT yesterday:
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.