Recent news coverage of prosecutor William Welch's leadership of the Justice Department's war on whistleblowers reveals that his overzealous and shady tactics were not restricted to his handling of the botched prosecution of late-Senator Ted Stevens, a case that landed Welch and his team in a pile of -- still ongoing -- criminal investigations.
Welch's tactics, at best idiosyncratic and ineffective and at worst unethical, expose the government's retaliatory motive in pursuing criminal convictions for whistleblowers, and betray weaknesses in the government's cases.
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Three months ago, journalist Michael Isikoff noted the disturbing "Double Standard" in White House Leak Inquiries. But now it's not just the Executive Branch. Josh Gerstein of Politico just published an article on how a judge ruled that the Justice Department can keep secret names of its own lawyers who leak classified information.
It is indisputable that the Obama, via the Holder Justice Department, has brought more "leak" prosecutions than any presidential Administration, ever.
To add hypocrisy to the injury of selective and malicious prosecutions of Shamai Liebowitz, Thomas Drake, Stephen Kim, and Jeffrey Sterling -- the Justice Department's own attorneys are immune from the "war on leaks."
U.S. District Court Judge Maxine Chesney ruled last week that the Justice Department does not have to disclose the identities of two lawyers who were found by the Office of Professional Responsibility (OPR) to have intentionally disclosed classified information to the media in 1996.
This is rank hypocrisy and the putrid stench is overwhelming.
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The strength of government's unyielding animus toward whistleblowers is no more evident than in the latest statements from disgraced prosecutor William Welch, who is "redeeming" himself amidst prosecutorial misconduct allegations stemming from the botched case against late-senator Ted Stevens by prosecuting whistleblowers like Thomas Drake under the Espionage Act.
Politico reported Welch's latest swill filed in the case against ex-CIA official Jeffery Sterling:
"The defendant’s unauthorized disclosures...may be viewed as more pernicious than the typical espionage case where a spy sells classified information for money,"
In other words, disclosing information of public interest to the public is worse the selling nuclear secrets to a foreign enemy. The idea that whistleblowers are somehow more dangerous than spies is both laughable in its absurdity and tragic as it represents the level of vindictiveness the government harbors against whistleblowers.
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The New Yorker's lead article this week is on the tragic suicide of one of the attorneys. Nicholas Marsh, in the botched prosecution of the late-Senator Ted Stevens of Alaska.
As the article notes,
the senior people in the Stevens investigation, did not receive, in Marsh's mind, equal punishment.
Marsh, one of the junior attorneys, was exiled to a backwater office at the Justice Department and later committed suicide.
Yet lead attorney Welch, who is no stranger to being in criminal jeopardy (arrested for drunk driving and currently under criminal investigation for prosecutorial misconduct in the Stevens case) is now enjoying career rehabilitation on the back of whistleblowers like Thomas Drake.
In reading the latest New Yorker article, I couldn't help but note the eerie parallels between the botched Ted Stevens prosecution and the Thomas Drake prosecution. Even though these cases are quite different (Ted Stevens was convicted and Tom Drake is a whistleblower who tried to stop government corruption), they have striking things in common. I submit that the most notable aspect--and the one largely missed in the New Yorker article--is the man behind the curtain: disgraced chief of the Public Integrity Section William Welch.
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 As the 111th Congress draws to a close, the heat is on to confirm James Cole as Deputy Attorney General. Despite the last-minute push, Cole still has serious problems that haunt and disqualify him from taking a senior position at the Justice Department. From 2005 through December 2009, James Cole served as an independent monitor in the Compliance Office of the American International Group (AIG), placed there by the Securities and Exchange Commission (SEC) as part of a deal that allowed AIG to escape prosecution for fraud.
While Americans and their elected representatives are notorious for their short attention spans, it’s worth remembering, in this case, that AIG was the corporation that nearly drove the US economy off a cliff in September 2008. AIG’s Financial Products Division (AIG-FP), based in London, wrote credit default swaps involving staggering amounts of money that had to be covered with a US government bailout in the range of $180 billion.
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In August 2009, the Justice Department announced that it would not prosecute CIA employees who had acted in good faith.
Now, slamming the door on accountability once again, CIA officials get a pass -- this time for destroying dozens of videotapes depicting the waterboarding of Abu Zubaydah and Abd al-Rahim al-Nashri, in secret CIA prisons. The CIA withheld the fact that the tapes existed from both the federal courts and the 9/11 Commission, which had asked the CIA for records of the interrogations.
Destroying those videotapes was such a brazen and blatant cover-up that even Bush was forced to launch a special investigation after the episode became public.
This is the icing on the cake of unaccountable government.
In his new memoir, President Bush writes:
I have been troubled by the blowback against the intelligence community and Justice Department for their role in the surveillance and interrogation programs. . . Our intelligence officers carried out their orders with skill and courage, and they deserve our gratitude for protecting our nation. Legal officials in my administration did their best to resolve complex issues in a time of extraordinary danger to our country.
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On Thursday, President Obama issued a new executive order aimed at standardizing the process of classifying government documents. The order requires agencies to use one term only -- “Controlled Unclassified Information,” (CUI) -- to mark documents that they believe should be protected, but not designated as “classified.” The order is also a move to curtail the abuse of CUI designations. From the New York Times:
“The fact that a document is marked Controlled Unclassified Information could not be used as a basis for withholding it from Congress, a court, or from a member of the public who has requested access to it under the Freedom of Information Act. Instead, an independent determination would have to be made about whether to release it.”
Currently, several federal agencies use their own, specialized system of over 117 (!) different markings in order to categorize information. Aside from creating a “confusing patchwork” of markings, this system allows agencies to conceal -- often under the cloak of national security -- many types of information from the public. This includes information, many groups have seen, that would reveal important government misconduct without generating national security risks.
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Some say money can’t buy everything. But for BP, money sure seems to be able to buy enough litigation and lobbying power to stay in business, even with its persistent, egregious safety violations that have led to more than one deadly disaster.
While BP’s older crimes may have been overshadowed lately by the more current and devastating Gulf oil spew, it should not be forgotten that the company is still litigating charges related to a 2005 blast at a Texas refinery that killed 15 workers. With the Gulf oil spill and the 40-day release of toxic chemicals from its Texas refinery, BP has its hands full with not one, but three environmental catastrophes. All three remain unresolved.
2005 BP Texas City incident diagram
Regarding the refinery case, the Justice Department recently decided not to revoke the three-year probation it had imposed on BP due to the numerous safety violations (both criminal and civil) found during the federal investigation into the 2005 accident. Although the probation period allowed BP time to respond to violations, it has to date failed to properly respond to all safety issues or fully pay its fines. Although the government warned that it might revoke or renew the probation, it then backed off of its threat – presumably to avoid subjecting the company to further criminal prosecution. Of course, family members of those killed in the accident have been advocating for more, not less, prosecution. Furthermore, a probe into safety issues at the refinery found that the initial violations noted by federal regulators only scratched the surface of a trove of (shock!) even more violations. This mirrors what we’ve seen in the Gulf – both in the spill itself as well as in the cleanup – where the information that has come forward continues to prompt yet more questions.
Photo by flickr user IBRRC
We now know that dangerous dispersants were being used in the cleanup and that BP was barring media access to oil-soaked sites. But why has the cleanup effort been shrouded in a veil of secrecy in the first place? What about the devastating ailments plaguing Gulf Coast residents, the reports of massive kill zones and dead marine life, and the widely disparate scientific studies on what’s happened to all that oil and dispersant? In light of a 1978 oil spill cleanup in Brooklyn, in which oil dating back to 1948 was found, somehow assurances that “75 percent of the oil is gone” don’t quite make sense. Let’s not forget that the initial (BP-backed) flow rate estimates of 1,000 barrels per day skyrocketed to over 60,000. It seems that the more we continue to investigate BP, the more dark secrets we shall find. This is not a surprise. Yet, the question remains -- how far will it go before meaningful changes are enacted to protect those who have suffered from the carelessness of BP, and those courageous few insiders who have blown the whistle?
Lindsay Bigda is Communications Fellow for the Government Accountability Project, the nation's leading whistleblower advocacy organization.
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