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A group of Korean scholars recently launched a campaign to support and vindicate a Korean-American who was indicted by the U.S. government on an espionage charge while he served as a North Korea expert for the U.S. State Department.
That Korean-American is Stephen Kim, a former State Department arms expert, and next on deck in the Obama administration's unprecedented persecution (err, prosecution) of so-called "leakers," who are usually whistleblowers.
Undeterred by its extravagantly ungraceful belly-flop in the case of former NSA whistleblower Thomas Drake, the Justice Department is pursuing the Kim case with equally misguided over-zealousness. Kim, like Drake, is being charged under the heavy-handed Espionage Act, which is meant to go after spies, not public servants. His "crime" caused no harm to the United States and did not benefit a foreign nation (elements of the Espionage Act.)
Citizens of South Korea appear more transparency friendly than their government, and attuned to the free speech implications of silencing dissent. No surprise in light of South Korea government's indicting an activist just last week:
South Korean prosecutors indicted a social media and freedom of speech activist this week for reposting messages from the North Korean government's Twitter account.
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Courtesy of Fotopedia user jamesdale10The Obama administration recently continued its campaign against so-called "leakers," who are more often than not whistleblowers, with the indictment of a record-breaking sixth person under the Espionage Act for alleged mishandling of classified information.
Obama's abhorrence for "leaks" apparently only applies to disclosures that expose embarrassing or negative aspects of the administration. At an online town hall - sponsored by adjust-your-privacy-expectations-downward Google – Obama defended the CIA's supposedly covert drone program:
“I want to make sure that people understand that drones have not caused a huge number of civilian casualties,” Obama replied. “For the most part, they have been very precise, precision strikes against al-Qaeda and their affiliates.”
The perception that “we’re just sending in a whole bunch of strikes willy-nilly,” Obama said, is incorrect. “This is a targeted, focused effort at people who are on a list of active terrorists, who are trying to go in and harm Americans, hit American facilities, American bases and so on.”
“I think that we have to be judicious in how we use drones,” Obama added.
Iran sentenced American citizen Amir Mirzael Hekmati to death for alleged spying.
The U.S. is justifiably outraged:
U.S. officials said the charges were false and politically motivated, describing them as the latest in a series of provocations by Iran’s clerical rulers.
“We strongly condemn this verdict,” said Victoria Nuland, spokeswoman for the State Department.
We should feel similar outrage when our own government accuses people who exposed fraud, waste, abuse, mismanagement and illegality of being spies. The Obama administration has brought a record number of prosecutions against so-called "leakers" - who are more often than not whistleblowers – using the antiquated Espionage Act, a law meant to go after spies.
Iran's unjustifiable death sentence should warn against slapping a whistleblower with the toxic label "spy." The injustice for Hekmati is also a stark warning against the dangerous combination of secret courts, government overreach, and questionable prosecutorial conduct, a combination that permeates the current spate of Espionage Act prosecutions.
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The Obama administration's Espionage Act prosecutions for alleged mishandling of classified information number more than all past presidents combine, and include - as The New York Times pointed out – one target from each of the State Department (Stephen Kim), the Defense Department (Bradley Manning), the Federal Bureau of Investigation (FBI) (Shamai Leibowitz), Central Intelligence Agency (CIA) (Jeffery Sterling), and National Security Agency (NSA) (Thomas Drake).
Prosecutor William Welch II is up to his old tricks at the helm of Obama's record-breaking Espionage Act prosecutions against so-called "leakers," who are more often than not whistleblowers. Politico's Josh Gerstein reported last week that a federal Judge took the extreme step of barring two government witnesses from testifying in the Espionage Act case against former Central Intelligence Agency (CIA) employee Jeffery Sterling because Welch's team withheld impeachment evidence from the defense.
For those non-lawyers - Criminal Procedure 101 teaches would-be attorneys that prosecutors have a duty to provide the defense with exculpatory or impeachment evidence. It's a basic principle, which any first-year law student should know, and which, apparently, "bully" prosecutor Welch frequently forgets, or worse, ignores.
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Welch's failure to hand over exculpatory evidence is not unique to the Sterling case. In the completely-failed Espionage Act case against National Security Agency (NSA) whistleblower Thomas Drake, Welch's tactics included keeping potentially exculpatory evidence from Drake's defense team for months after the Indictment was handed down. For over six months, Welch's team failed to produce evidence that one of the allegedly classified documents Drake was charged with improperly retaining was declassified two months after the indictment. Welch waited ten months to turn over evidence that another document that formed the basis of an Espionage Act charge against Drake had been – in the words of Drake's criminal defense team –
. . . published as 'unclassified' and had never been deemed 'classified' until after it was recovered from Mr. Drake's home. (Emphasis added).
Let's just look at what's in today's news. After first threatening to veto the National Defense Authorization Act because of a freedom-offensive provision allowing the indefinite detention of American citizens without a single shred of due process, President Obama has now flip-flopped. This is just one of many items in today's news that cause me to question what country I'm living in.
A military court sentenced a prominent Egyptian blogger Maikel Nabil to two years in jail yesterday on charges that included insulting the military on his blog. The Washington Post notes that
this is a disturbing reminder of how much power the military leadership maintains.
Yet Shamai Leibowitz, an American FBI translator, was tried under the Espionage Act and sentenced to 20 months in prison for information he gave to a blogger.
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What, specifically, did Leibowitz provide to the blogger? In the judge's own words:
I don't know what was divulged other than some documents, and how it compromised things, I have no idea.
(Quoting U.S. District Court Judge Alexander Williams Jr.)
Senior Republican Senator Chuck Grassley (R-Iowa) called for the resignation of Justice Department Criminal Division head, Lanney Breuer, after Breuer denied knowing details of the controversial "Fast and Furious" operation. The Washington Post reports:
The “Fast and Furious” program was meant to track guns as they made their way south of the border to senior members of Mexican drug cartels after being bought by straw buyers. However, ATF agents rarely pursued the weapons after they were bought.
Grassley said Breuer hurt his own credibility by initially denying details of the program.
Breuer might be wise to consider Grassley's request in light of the debacle his Criminal Division made out of the failed Espionage Act prosecution against National Security Agency (NSA) whistleblower Thomas Drake.
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When the Drake indictment was handed down, Breuer wildly overstated the case against Drake in a Justice Department press release:
Our national security demands that the sort of conduct alleged here – violating the government’s trust by illegally retaining and disclosing classified information – be prosecuted and prosecuted vigorously. . .
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Tom Drake and Jesselyn Radack at the Ridenhour Prize for Truthtelling Ceremony in March 2011GAP National Security & Human Rights Director and Justice Department whistleblower Jesselyn Radack, and GAP client and National Security Agency (NSA) whistleblower Thomas Drake, have won this year's prestigious Sam Adams Award, presented annually by the Sam Adams Associates for Integrity in Intelligence (SAAII). The honor is presented to intelligence professionals who have taken stands for ethics and integrity.
The award will be presented to Radack and Drake at a free event this coming Monday, November 21, at 8:10 p.m. at the Ward Circle Building, Room 2, at American University. Speakers at the ceremony include FBI whistleblower Coleen Rowley (a previous winner of the award), retired Col. Larry Wilkerson (another winner), American University Nuclear Studies Institute professor Peter Kuznick, and veteran CIA analyst and activist Ray McGovern.
Department of Justice (DOJ) whistleblower Jesselyn Radack is a former ethics adviser who disclosed that the FBI committed ethical violations in its interrogation of "American Taliban" John Walker Lindh, such as interrogating Lindh without an attorney present. She also exposed that the DOJ attempted to suppress that information, and former Attorney General John Ashcroft made misleading public statements about the case. The Lindh case was the first major terrorism prosecution after 9/11. Since her ordeal, Radack has been a champion of whistleblowers, recently serving as counsel to Drake on whistleblower issues during the government's failed attempt to prosecute him under the Espionage Act.
Apparently the government has learned nothing from the spectacular collapse of the ill-fated criminal prosecution of National Security Agency (NSA) whistleblower Thomas Drake. Drake was charged with 10 felony counts, all of which the government abandoned days before trial when the prosecution's case fell apart in the face of adverse court rulings and overwhelmingly negative media coverage (such as in The New Yorker and 60 Minutes). Drake pleaded to a minor misdemeanor, and, at sentencing, a federal judge lambasted the prosecution, calling delays in the case "unconscionable" and saying that the government put Drake through "four years of hell."
Despite the Justice Department's glaring defeat in the Drake case, the government is refusing to make amends with the whistleblowers it so egregiously mistreated. A front-page top-of-the-fold Baltimore Sun story reports that Drake and four other whistleblowers filed a lawsuit seeking to recoup property that the government seized in retaliatory raids back in 2007. Drake said the request is simple:
We'd like our stuff back.
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The Sun reports:
The court motion filed by Drake and the four others is brief and cites a federal rule governing property seizures. It says the computers are being held in an FBI storage facility on Beltsville Drive in Calverton. "When asked why they have not returned the property," the court motion says, "the FBI responds that it has been waiting for months for the NSA to provide the FBI with its policy regarding this matter."
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According to a new intelligence community report to Congress, the number of people who held security clearances for access to classified information last year exceeded 4.2 million. A favorite new tactic of the government with which to retaliate against whistleblowers is to pull their security clearances. Ironically, it is pulling the clearances not of the newly-minted holders of such clearances, but of people who have proven their worthiness of such clearances by holding them for decades.
Peter Van Buren, a veteran State Department foreign service officer, is the latest casualty of this punitive trend. The government suspended his top-secret security clearance – which he has held for 23 years – over LINKING (not LEAKING) to a WikiLeaks document on his blog and . . . surprise, surprise . . . publishing a book critical of the government.
As a whistleblower attorney, this has happened to numerous clients who have held security clearances for decades, are just a few years away from retirement, but dare to say something critical of the government. Not only do they lose their pension, but the loss of their security clearance renders them unemployed and unemployable in the intelligence community.
Like with Thomas Drake, Bill Binney, Kirk Wiebe, Franz Gayl, and numerous GAP clients, these life-long public servants have had their security clearances suspended. Not necessarily revoked (because if its revoked, that can be challenged through federal court), but suspended, so that the action cannot be challenged.
In the case of Drake, Binney and Wiebe, among other "proper internal channels," they filed a Pentagon Inspector General complaint about massive fraud, waste, abuse and illegality at the National Security Agency (NSA), which the IG substantiated.
A map of YemenThe U.S. killed Anwar al-Awlaki's innocent American son like they killed al-Awlaki: without trial, without due process, and using a highly-classified but front-page-news drone strike. Before people try to justify the killing by asserting that al-Awlaki's son was not "innocent," be reminded that had the U.S. given al-Awlaki's son his constitutionally-guaranteed right to due process, he would have had a criminal trial and been presumed innocent until proven guilty. But we've reversed the usual presumption.
Al-Awlaki's family is speaking out about the U.S. killing another American member of their family. Al-Awlaki's 16-year-old son, Abdulrahman al-Awlaki, was born in Denver. His family has set up a memorial Facebook page, WaPo reported:
The pictures on the Facebook page show a smiling kid out and about in the countryside and occasionally hamming it up for the camera.
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In a still secret – yet described in detail in the New York Times – memo, the Justice Department justified assassinating American citizen al-Awlaki despite the myriad laws and the Constitution such a killing would violate. As New York Times journalist Charlie Savage pointed out, there exists
an executive order banning assassinations, a federal law [that prohibits Americans from murdering other Americans abroad], protections in the Bill of Rights [the Fourth Amendment’s guarantee that a “person” cannot be seized by the government unreasonably, and the Fifth Amendment’s guarantee that the government may not deprive a person of life “without due process of law”], and various strictures of the international laws of war...