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.
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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.
Watch it here.
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.
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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.
The U.K.'s Guardian ran a lengthy article on the expansion of Executive power and the national security state under Obama. Civil Liberties advocates find themselves publishing abroad rather than in the U.S. The Guardian also ran a must-read opinion piece from the American Civil Liberties Union's (ACLU) Jameel Jaffer and Nate Wessler on the Obama administration's drone propaganda: "First the 'Targeted Killing' Campaign, Then the Targeted Propaganda Campaign:"
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.
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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.
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U.S. officials tell us that a drone strike has killed al Qaeda's #2 operative - Abu Yahya al-Libi:
One American official, speaking on the condition of anonymity, described Mr. Libi as one of Al Qaeda’s “most experienced and versatile leaders,” and said he had “played a critical role in the group’s planning against the West, providing oversight of the external operations efforts.”
U.S. officials also told us the American cleric Anwar al-Awlaki was a dangerous terrorist, when it turned out he was a propagandist, and not all that influential in the mid-east.
Meanwhile, despite that administration officials claim that civilian deaths are rare and minimal (one official recently said "in the single digits") the think tank New America Foundation estimated that since Obama took office, the number of drone deaths in Pakistan alone totaled between 1,456 and 2,372. Certainly these were not all high-level al-Qaeda operatives.
I can't help but notice the numbers' similarity to some of the casualty numbers from the Pentagon or World Trade Center. Obviously, Americans would no doubt agree with me that -though Obama claims the legal authority to do so - it would morally reprehensible to take down one of the WTC towers with a drone just because an al-Qaeda operative happened to be hiding out in the broom cupboard.
The question then is: how many innocents is it acceptable to kill to take down one suspected terrorist?
The question is made more stark considering that fuzzy math the Obama administration is using to determine who is a "militant."
. . . Mr. Obama embraced a disputed method for counting civilian casualties that did little to box him in. It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent.
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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.
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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.
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Today President Obama will issue an executive order, ostensibly to help crack down on human rights atrocities in other countries –
by conducting surveillance, blocking access to the Internet or tracking the movements of opposition figures.
If this is the true, and only reason, that would be laudable. But the ulterior purposes to which secret domestic spying has been put belie the real reason: worldwide control of information.
If you think this is mere hyperbole, listen to my client, former NSA Senior Analyst Bill Binney, on Democracy Now! this past Friday. (He was the technical director of NSA's World Geopolitical and Military Analysis Reporting Group, so he knows a thing or two about surveillance.) He discusses the NSA's massive power to spy on Americans, why the FBI raided his home after he became a whistleblower, and how the government made him the target of a federal criminal investigation.
Is America tracking Julian Assange because he's an authoritarian dictator guilty of human rights abuses? No, it's because we don't like him.
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I have been shouting for well over a year that Obama's war on whistleblowers is a back door way of attacking the media. We have seen a hint of this attack in the Obama administration's attempts to subpoena journalist James Risen to testify about his sources in the Espionage Act prosecutions of former CIA officer Jeffery Sterling. (It should now be common knowledge – but still bears repeating – that Obama has brought more Espionage Act prosecutions against whistleblowers than all previous presidents combined.)
Glenn Greenwald's explosive Salon article on Sunday details how the U.S. government repeatedly detained, searched, and harassed Laura Poitras, an Oscar-and Emmy-nominated filmmaker – with no probable cause or even suspicion that Poitras had committed a crime. Not only is the detention, search, and interrogation of an innocent American – who the government does not even suspect committed a crime – completely enraging to any civil libertarian, but I am particularly disconcerted as Poitras has filmed three of my National Security Agency (NSA) clients and no doubt countless other courageous whistleblowers. My clients have already been put through a years-long retaliatory criminal investigation, and should not be forced to endure further persecution because they are brave enough to continue to speak out against NSA's illegal actions.
Greenwald described what typically happens when the Department of Homeland Security (DHS) detains Poitras:
She has had her laptop, camera and cellphone seized, and not returned for weeks, with the contents presumably copied. On several occasions, her reporter’s notebooks were seized and their contents copied, even as she objected that doing so would invade her journalist-source relationship. Her credit cards and receipts have been copied on numerous occasions. In many instances, DHS agents also detain and interrogate her in the foreign airport before her return, on one trip telling her that she would be barred from boarding her flight back home, only to let her board at the last minute. When she arrived at JFK Airport on Thanksgiving weekend of 2010, she was told by one DHS agent — after she asserted her privileges as a journalist to refuse to answer questions about the individuals with whom she met on her trip — that he “finds it very suspicious that you’re not willing to help your country by answering our questions.” They sometimes keep her detained for three to four hours (all while telling her that she will be released more quickly if she answers all their questions and consents to full searches).
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People ask the question in various ways, sometimes hesitantly, often via a long digression, but my answer is always the same: no regrets.
In some 24 years of government service, I experienced my share of dissonance when it came to what was said in public and what the government did behind the public’s back. In most cases, the gap was filled with scared little men and women, and what was left unsaid just hid the mistakes and flaws of those anonymous functionaries.
What I saw while serving the State Department at a forward operating base in Iraq was, however, different. There, the space between what we were doing (the eye-watering waste and mismanagement), and what we were saying (the endless claims of success and progress), was filled with numb soldiers and devastated Iraqis, not scaredy-cat bureaucrats.
That was too much for even a well-seasoned cubicle warrior like me to ignore and so I wrote a book about it, We Meant Well: How I Helped Lose the War for the Hearts and Minds of the Iraqi People. I was on the spot to see it all happen, leading two Provincial Reconstruction Teams (PRTs) in rural Iraq while taking part up close and personal in what the U.S. government was doing to, not for, Iraqis. Originally, I imagined that my book’s subtitle would be “Lessons for Afghanistan,” since I was hoping the same mistakes would not be endlessly repeated there. Sometimes being right doesn’t solve a damn thing.
By the time I arrived in Iraq in 2009, I hardly expected to be welcomed as a liberator or greeted -- as the officials who launched the invasion of that country expected back in 2003 -- with a parade and flowers. But I never imagined Iraq for quite the American disaster it was either. Nor did I expect to be welcomed back by my employer, the State Department, as a hero in return for my book of loony stories and poignant moments that summed up how the United States wasted more than $44 billion in the reconstruction/deconstruction of Iraq. But I never imagined that State would retaliate against me.