The Washington Post used the Freedom of Information Act (FOIA) to obtain one of the documents that formed the Espionage Act case against National Security Agency (NSA) whistleblower Thomas Drake. Former classification czar under G.W. Bush, J William Leonard, was slated to testify as a defense expert for Drake and called the case the most "deliberate and willful example of government officials improperly classifying a document," he had ever seen.

Leonard’s views, outlined in an affidavit, got some support with the release of a memo that formed part of the evidence against Drake.

The once "classified" document (scare quotes around "classified" as none of the information that formed the basis of the Espionage Act counts against Drake was actually properly classified) is now public. Ellen Nakashima of WaPo reported on innocuous information in the document that formed the basis of an Espionage Act charge against Drake for allegedly retaining the document improperly.

Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, also received the declassified memo from the NSA and said its disclosure reinforced questions raised about the prosecution.

“It’s utterly innocuous and practically devoid of meaningful content,” he said of the memo in an interview. “The idea that someone risked decades of prison over this document is an indictment of the agency and its classification policy.”

Leonard echoed those concerns in an e-mail to WaPo:

Leonard, speaking generally, said the system for classifying information is “becoming dysfunctional” and “clearly lacks the ability to differentiate between trivial information and that which can truly damage our nation’s well-being.”

‘Chilling Effect’ Far-Reaching if Congress Fails to Act

(Washington, D.C.) – Today, the Government Accountability Project (GAP) is publicly denouncing the Food and Drug Administration’s (FDA) implementation of an invasive and potentially illegal surveillance system instituted against employees trying to blow the whistle on critical safety issues surrounding medical devices.

The New York Times revealed the in-depth surveillance program in an explosive piece this past weekend. That article detailed how the agency monitored and “secretly captured thousands” of email communications between the whistleblowers and members of the media, Congress, attorneys, other regulatory officials, and the White House. Many of these communications are protected by various whistleblower laws. Subsequent reports show that agency lawyers approved these measures.

Amanda Hitt, GAP Public Health Director, and Director of GAP’s Food Integrity Campaign (which aims to protect whistleblowers at the FDA), stated:

“While the outcry by Congress and regulators thus far against the FDA is encouraging, the damage may have already been done. It’s hard to imagine how this fiasco won’t have a chilling effect on future FDA whistleblowers, and employees from all sorts of government agencies.

“This foray into espionage is nothing more than a service the agency provides to its 'clients.' Simply put, the FDA is spying on its own to protect the financial interests of the very corporations it is bound to regulate.”

GAP National Security & Human Rights Director Jesselyn Radack, who monitors the federal government’s use of surveillance, stated:

The Washington Post expanded on this weekend's blockbuster New York Times article revealing the FDA's invasive surveillance on employees, reporters, and congressional staffers in an attempt to target seven scientist-whistleblowers who raised concerns about excessive radiation emitted from mammogram and colonoscopy machines.

This scandal includes an "enemies list," outsourced surveillance, spyware on dogs, and numerous other outrages.

The Washington Post reported that

Sen. Charles E. Grassley (R-Iowa) said that his staff had learned that the spying was “explicitly authorized, in writing” by the agency’s top legal office.

Learning from the now-infamous Justice Department Office of Legal Counsel and my law school classmate John Yoo, who twisted the law to justify torture, the FDA's chief counsel apparently reviewed and authorized the surveillance in a secret memo. The FDA's defense is so lame it is hard to take it with a straight face:

She said that the surveillance was limited in scope . . . The FDA acknowledged Friday that targeted surveillance of five employees began in mid-2010, but it said that was not ongoing today, . . .

The fact that FDA targeted only the whistleblowers, whose communications included legally-protected disclosures to the media, congress, and the Office of Special Counsel, makes the monitoring more problematic, not less.

An FDA spokeswoman assured WaPo that:

“We did not impede or interfere with any employee communication to Congress, their staff, media or federal investigators,” she said.

But, the very act of monitoring IS interfering with the communications. If you know the FDA is monitoring your e-mails you might think twice about revealing to government investigators or Congress or the media that the FDA is disregarding the public health and safety of Americans.

Attorney General Eric Holder recently complained in the wake of his congressional contempt citation – the first ever for an Attorney General – that Republicans are using him as a proxy for Obama in an election year.

From WaPo:

In his first interview since Thursday’s vote, Holder said lawmakers have used an investigation of a botched gun-tracking operation as a way to seek retribution against the Justice Department for its policies on a host of issues, including immigration, voting rights and gay marriage. He said the chairman of the committee leading the inquiry, Rep. Darrell Issa (R-Calif.), is engaging in political theater as the Justice Department tries to focus on public safety.

I agree that in the political theater of the contempt citation, Holder is being used as a proxy for Obama. However, Holder has done plenty in his tenure as Attorney General to upset both sides of the aisle, and ought to take some responsibility for the actions the Justice Department has taken under his watch.

Obama might have ordered the assassination of American citizen Anwar al-Awlaki without charge or trial, but it was Holder's Justice Department that drafted the legal memo "authorizing" the killing. It is also Holder's Justice Department that continually asserts absurd secrecy claims to keep the memo from the public and the drone program from court oversight.

Under Holder, the Justice Department has

• endorsed indefinite preventative detention and targeted assassination of Americans, 
• continued to use the state secrets privilege to shut down lawsuits challenging torture and extraordinary rendition, and
• maintained pro-secrecy positions in high-profile Freedom of Information Act suits.

After a short but unusually severe thunderstorm that roared through the D.C. area on Friday night, the entire Washington Metropolitan Area was thrown into chaos.

Three days later, countless traffic lights are still out, hundreds of thousands of residents are without power, including myself, grocery stores and gas station are closed for lack of power, and the federal government is encouraging employees to telework.

From WaPo:

The Washington region braced for a sweltering workweek and challenging commutes on Monday, with hundreds of traffic lights still dark, temperatures expected to climb into the 90s and nearly a half-million area households still without power.

Is this the work of a terrible terrorist attack? No, it is the complete disaster non-preparedness a decade after 9/11. Despite the fact that billions if not trillions have been spent since 9/11 on counter-terrorism and so-called "homeland security" measures, one of the major terrorist targets, the nation's capital, cannot cope with a severe thunderstorm.

I received a message from PEPCO that most D.C.-area residents may not have power until next Friday at 11:00 pm - a full week after the storm hit. With temperatures this week set for the mid to upper-90s, that is a long time for residents to be with air conditioning, or fans, or refrigerators.

Two years ago, the Washington Post's comprehensive examination of the billions of taxpayer dollars spent on "homeland security," "Top Secret America," reflected that the D.C. metropolitan area was burgeoning with infrastructure, though apparently none of it focused on keeping the D.C.-area up and running after a severe thunderstorm.

Though the storm Friday was, as all the news outlets are repeating, an "unusually severe" thunderstorm, the same thing happened in 2003 with Hurricane Isabel - the thousands of D.C.-area residents were left without power for an entire week.
(I won't even get started on the climate change deniers.)

I am not the only D.C. taxpayer wondering, where are billions in "critical infrastructure" protection and "homeland security?" They are not going toward obvious solutions like putting power lines underground.

The D.C. area's responsiveness to unexpected events has not improved, but taxpayers' pockets have been drained to create an entire secret city of "national security" in northern Virginia. Making sure citizens have food and power in an emergency should be a top priority, not a distant second to security theater like taking our shoes off before getting on an airplane.

Jesselyn Radack is National Security & Human Rights Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.

The government is playing dumb in its public statements on the "leak hysteria" in Washington:

“We have tried more leak cases — brought more leak cases during the course of this administration than any other administration,” Mr. Holder told the Senate Judiciary Committee. “I was getting hammered by the left for that only two weeks ago. Now I’m getting hammered by the right for potentially not going after leaks. It makes for an interesting dynamic.”

Surely Attorney General Eric Holder knows the difference between high-level administration officials leaking to the media (or Hollywood!?!) for political gain, and whistleblowers disclosing government waste, fraud, abuse or illegality. But, Holder's obtuse statement deliberately obfuscates the administration's hypocritical policy on so-called "leaks." No doubt because the Justice Department has broken a record prosecuting whistleblowers, while ignoring high-level leaks for political gain.

Unfortunately many in the main stream media (MSM) have been more than willing to perpetuate the confusion by reporting that the Espionage Act prosecutions and pressure to go after high-level leaks are about the same types of disclosures.  

The MSM should recognize that the issue is not the need for more than six Espionage Act prosecutions, but for the Obama administration to stop the blatant hypocrisy of criminally prosecuting low and mid-level officials, while simultaneously feeding the media secrets that serve as pro-administration talking points.

Holder's whine about being called out on hypocrisy is almost as bad as the administration's double-speak on its war on whistleblowers, which essentially boils down to:  

The Espionage Act prosecutions were an accident, but we want credit for them.

Director of National Intelligence (DNI) James R. Clapper, Jr. thinks intelligence community (IC) employees should be like his grandchildren: seen but not heard. Unfortunately, that means his IC community "grandchildren" could witness government crimes, waste, fraud, abuse, or dangers to health and public safety, and never report them.

Intelligence community employees have no meaningful whistleblower protections. They are exempted from the Whistleblower Protection Act. IC Inspectors General are more often than not either absent or completely corrupted. And, congressional oversight is completely ineffective or complicit in wrongdoing. (Just look at Congress' complicity with the National Security Agency's (NSA) warrantless wiretapping scandal).

Yesterday, Clapper announced he is responding to the "leak hysteria" plaguing Washington with a new administrative crackdown for suspected "leakers." While Clapper's desire to stop unauthorized disclosures of information that could harm national security makes sense in the abstract, a better practical approach to stopping leaks would be to institute whistleblower protections, curb rampant overclassification (which all experts agree undermines legitimate secrets), and curtail the "authorized leaks" by "anonymous officials."

Clapper's new rules include requiring IC employees answer polygraph questions about revealing restricted information. Perhaps Clapper should start with putting himself and all of the high-level officials in the situation room during the Osama Bin Laden raid through a polygraph, as the Bin Laden raid is quite possibly the most discussed "covert operation" in American history.

Forgive my skepticism about these new "tools" to stop supposed "leaks," but it is based on how the Obama administration has approached suspected "leaks" using the existing tools. Despite the option of less-severe measures - both criminal and administrative - the Obama administration has used the heavy-handed Espionage Act to bring more prosecutions against so-called "leakers," who are usually whistleblowers, than all past presidents combined.

President Jimmy Carter penned a must-read op-ed in today's New York Times, sharply criticizing the current President.  Carter and Obama share more than having held the same office, they are also both Nobel Peace Prize winners.

Here's what one Nobel Peace Prize winner has to say about the policies of another:

The United States is abandoning its role as the global champion of human rights.

Citing the Obama administration's assassination-by-drone program, the National Defense Authorization Act's (NDAA) indefinite preventive detention provisions, increased authorities for government warrantless domestic spying on innocent Americans, and the still-open-for-business and holding 169 prisoners Guantanamo Bay facility, Carter eloquently describes the consequences of the U.S.'s moving backward on human rights.

At a time when popular revolutions are sweeping the globe, the United States should be strengthening, not weakening, basic rules of law and principles of justice enumerated in the Universal Declaration of Human Rights. But instead of making the world safer, America’s violation of international human rights abets our enemies and alienates our friends.

Particularly astute are Carter's descriptions of the drone assassination program, something some Kossacks have actively supported. (See some of the comments to my prior diaries on the program here, here, and here.) Carter was particularly incensed by the number of innocent lives "sacrificed" in drone attacks:

Despite an arbitrary rule that any man killed by drones is declared an enemy terrorist, the death of nearby innocent women and children is accepted as inevitable. . . . We don’t know how many hundreds of innocent civilians have been killed in these attacks, each one approved by the highest authorities in Washington. This would have been unthinkable in previous times.

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. . . .

(emphasis added).

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 yesterday to 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.