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The New York Times reports today on White House Press Secretary Jay Carney's dodge ball non-response to ABC's Jake Tapper on the hypocrisy of promoting an aggressive free press abroad while criminally prosecuting a record number of "leakers" a.k.a. sources a.k.a. whistleblowers in the U.S. under the Espionage Act, a World War I era law intended to go after spies, not whistleblowers. (I blogged about the exchange on Friday). The Times notes something important I've been saying all along, but that the MSM has been slow to recognize:
. . . the majority of the recent prosecutions seem to have everything to do with administrative secrecy and very little to do with national security.
In case after case, the Espionage Act has been deployed as a kind of ad hoc Official Secrets Act, which is not a law that has ever found traction in America, a place where the people’s right to know is viewed as superseding the government’s right to hide its business.
Tapper deserves credit for pushing the White House on the glaring hypocrisy of the self-proclaimed "most transparent administration in history" using the Espionage Act to criminally prosecute whistleblowers. The larger implications were not lost on the Times, which specifically referenced the now-failed Espionage Act case against my client, National Security Agency (NSA) whistleblower Thomas Drake:
These kinds of prosecutions can have ripples well beyond the immediate proceedings. Two reporters in Washington who work on national security issues said that the rulings had created a chilly environment between journalists and people who work at the various government agencies.
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This weekend, University of California-Berkeley will be celebrating President's Day by celebrating whistleblowers. Seems apropos, no? After all, most government whistleblowers are patriotic civil servants who are extremely dedicated to the welfare of our country, and blow the whistle at great personal risk.
As our third president (Thomas Jefferson, if you don't recall your American history lessons) said, "There is no truth existing which I fear or would wish unknown to the whole world." The conference itself used this quote and it fits. We can only hope that more and more people start to take this view.
The university will be hosting Occupy the Truth: Whistleblowers Conference this weekend, February 17-19. It will feature well-known whistleblowers as well as a "participant-driven environment" for networking and whistleblower support strategies.
GAP National Security & Human Rights Director (and Department of Justice whistleblower) Jesselyn Radack and GAP client (and National Security Agency whistleblower) Tom Drake will be speaking on Saturday. Also featured are Pentagon Papers whistleblower Daniel Ellsberg, former State Department official (and Iraq war critic) Ann Wright, and former CIA agent and intelligence activist Ray McGovern, all three of whom will be discussing the plight of Bradley Manning – the solider accused of giving classified information to WikiLeaks – in a panel this (Friday) evening.
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Citing the Obama administration Justice Department's war on whistleblowers as one of many examples of excessive secrecy, the National Security Archive at George Washington University awarded the 7th annual Rosemary Award (named for Nixon tape-eraser secretary Rosemary Woods) to the Department of Justice. WaPo reports:
The Justice Department, beating fierce competition from the CIA, the Department of Homeland Security and others, has won this year’s coveted Rosemary Award, named for President Richard M. Nixon’s secretary Rose Mary Woods , who somehow erased 181 / 2 minutes of a crucial Watergate tape.
The seventh annual award, presented by the George Washington University-based National Security Archive, honors the agency that has done the very most in the previous year to enhance government secrecy and keep the public in the dark.
The Archive said the department, among other things, engaged in “selective and abusive prosecutions of espionage laws against whistleblowers as ostensible ‘leakers’ of classified information” and conducted “more ‘leaks’ prosecutions in the last three years than in all previous years combined,” while experts say “over-classification” of government documents is endemic.
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The media is feeling the chilling effect from the Obama administration's record-breaking number of Espionage Act prosecutions against so-called "leakers," who are usually whistleblowers. The New York Times reported this weekend on what I've chronicled since the first of six indictments – that of National Security Agency (NSA) whistleblower Thomas Drake:
It used to be that journalists had a sporting chance of protecting their sources. The best and sometimes only way to identify a leaker was to pressure the reporter or news organization that received the leak, but even subpoenas tended to be resisted. Today, advances in surveillance technology allow the government to keep a perpetual eye on those with security clearances, and give prosecutors the ability to punish officials for disclosing secrets without provoking a clash with the press.
I'm all too familiar with this fact having represented clients who - knowing what the NSA is capable of - insisted on meeting in-person at places like the Olive Garden. Pay in cash. No phone calls. No texts. Definitely no e-mails.
The Obama administration's Espionage Act prosecutions result in a massive chilling effect on whistleblowers and potential whistleblowers working in the ever-expanding national security establishment - an effect that seems precisely the purpose of the prosecutions (the prosecutor argued that Drake needed to be punished to "send a message"). The Times recognized this weekend that the attack on sources has already turned into an attack on the media in the Espionage Act case against former Central Intelligence Agency (CIA) employee Jeffrey Sterling, where the Justice Department attempted to subpoena Times reporter Jim Risen three times. Risen commendably fought the subpoena and offered a glimpse into just how closely Big Brother is watching journalists:
I have learned from an individual who testified before a grand jury . . . that was examining my reporting about the domestic wiretapping program that the Government had shown this individual copies of telephone records relating to calls made to and from me . . .
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State Department whistleblower Peter Van Buren writes in TomDispatch today about the escalating retaliation taken against him since he wrote a book about massive reconstruction fraud in Iraq: We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People.
Van Buren writes:
For the crime of writing this book and maintaining a blog that occasionally embarrasses, State Department officials destroyed my career, even as they confirm my thesis, and their own failure, by reducing the Baghdad Embassy to half its size in the face of Iraq's unraveling.
Even as the Secretary of State rails against suppression of free speech abroad, the State Department continues to retaliate and threaten Van Buren for a book written in his personal capacity on his personal time.
Van Buren detailed some of the retaliation, which tellingly began shortly before his book's publication:
Without allowing any rebuttal or defense, State suspended my security clearance, claiming my blogging was an example of “poor judgment,” transferred me from a substantive job into a meaningless telework position, threatened felony conviction over alleged disclosure of classified information, illegally banned me from entering the building where I supposedly work, and continues to try to harass and intimidate me.
“The State Department was aware of Mr. Van Buren’s book long prior to its release,” explains attorney Jessleyn Radack, who now represents me. “Yet instead of addressing the ample evidence of fraud, waste, and abuse in the book, State targeted the whistleblower. The State Department’s retaliatory actions are a transparent attempt to intimidate and silence an employee whose critique of fraudulent, wasteful, and mismanaged U.S. reconstruction efforts in Iraq embarrassed the agency.”
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Courtesy of Fotopedia user jamesdale10I wrote last week about the absurdity of the Obama administration's position on the supposedly-secret Central Intelligence Agency (CIA) drone strikes that Obama defended publicly at a town hall meeting. Despite Obama's claims that the drone strikes are "very precise, precision strikes against al-Qaeda and their affiliates," the Washington Post reports today on a recent strike:
U.S. drone-fired missiles hit a house in Pakistan’s northwest tribal region near the Afghan border Wednesday, killing nine people, Pakistani intelligence officials said. . . .
This strike follows one in November:
Pakistan kicked the U.S. out of a base used by American drones last year in retaliation for American airstrikes that accidentally killed 24 Pakistani troops at two Afghan border posts on Nov. 26.
We also know that drones have killed at least three Americans – Muslim cleric Anwar al-Awlaki, his companion Samir Khan, and al-Awlaki's 16 year-old son.
If the most recent strike had killed only suspected terrorists, certainly the Obama administration would be publicizing it the way it did when Obama touted the al-Awlaki assassination as a "tribute to our intelligence community."
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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).
The American Civil Liberties Union (ACLU) obtained documents using the Freedom of Information Act (FOIA) that reveal that the Federal Bureau of Investigation (FBI) is using co-called "community outreach" programs to spy and target Muslim Americans. The documents show that:
The FBI has been illegally using its community outreach programs to secretly collect and store information about activities protected by the First Amendment for intelligence purposes. . .
The FBI's blanket denial that the outreach is used as a cover for surveillance is far from credible considering WaPo's article today:
. . . the files also depict agents as recording Social Security numbers and other identifying information of people after they meet, and, in at least one instance, noting their political views. It appears that the agents are conducting follow-up investigations in some instances, but heavy redactions in the documents make it impossible to determine how far any examination might have gone.
Conducting surveillance based on First Amendment-protected activities under the auspices of "community outreach" is not only a colossal waste of law enforcement time, it is a tear in the fabric of our democracy. The FBI needs a wake-up call about the First Amendment: The First Amendment protects ideas and speech - even abhorrent ideas and speech. The dangerous misconception that any one idea or religion creates violence invites racial profiling, discrimination, and hate while doing nothing for our safety.
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