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:
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."
This Halloween, you can demand more than just candy. GAP has joined a coalition started by the Sunlight Foundation to hold the Super Committee accountable for their actions.
The Super Committee – the 12-member joint congressional committee tasked with eliminating $1.5 trillion from the federal budget over the next 10 years – currently has no measures in place to keep it transparent. They are holding closed-door meetings and being lobbied by nearly 200 companies and special interests. The members also do not have to report on any financial contributions they receive, except at the normal quarterly filing time. A committee this important (they are deciding our financial future, after all) should be subject to more public scrutiny and transparency. We should be able to find out if a member is receiving major funds from a specific source to determine if that is biasing his/her vote.
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.
The pictures on the Facebook page show a smiling kid out and about in the countryside and occasionally hamming it up for the camera.
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 Savagepointed 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...
Last week, GAP filed a FOIA request with the Justice Department for the secret Office of Legal Counsel (OLC) memo authorizing the assassination of radical Muslim cleric and American citizen Anwar al-Awlaki. There is no doubt that the release of the memo is in the public interest, as GAP's FOIA request articulates:
The U.S. government's killing of American citizen and alleged al-Qaeda operative Anwar al-Awlaki is a matter of public interest, which the President himself addressed. More specifically, the government's legal justification for killing al-Awlaki has sparked national and international debate. The legal reasoning behind controversial government actions – especially those that take the lives of American citizens – is a matter of public interest, and should be a matter of public discourse. (Footnotes omitted).
In the time since GAP filed its FOIA request, the New York Times reported extensively on the memo's content, and the public debate over the legality of killing al-Awlaki intensified. Yet, despite the fact that much of the memo's reasoning appeared on the Times front page on Sunday, the Obama administration has refused to make the memo public, and thus, it has avoided answering hard questions about the justification for the killing.
Even individuals and organizations who argued that the al-Awlaki assassination was justified – such as the Washington Post and former OLC attorney Jack Goldsmith – have called for President Obama to make the memo public. Public discourse is vital for our democracy. The Obama administration touts its commitment to transparency and openness, and such a commitment is most needed when the President makes controversial decisions, like the one to target and kill an American citizen.
Kathleen McClellan is National Security and Human Rights Counsel for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.
Former Justice Department attorney Martin Lederman – a leading critic of George W. Bush's policies on torture, black sites, and rendition – was one of the authors of the legal memo justifying the assassination of American radical cleric Anwar al-Awlaki without due process. Though the memo is still secret and Obama administration officials refuse to answer for it on-the-record, the New York Times reported on the memo's content in detail based on sources who had read it. The memo's authors used a lot of the same flawed Bush-logic used to justify the programs Lederman once condemned.
My organization– the Government Accountability Project – was the first to publicly file a request for the memo under the Freedom of Information Act.
I pointed out the flawed rationalizations for the assassination in my Kos diary Sunday:
1) Al-Alwaki was taking part in the war between the United States and al Qaeda and posed a significant threat to Americans--though he never picked up arms against the U.S.;
2) Yemeni authorities were unable or unwilling to stop him--which is contradicted by Yemen's bragging that they gave us information to geo-locate him that was precise enough for a drone attack;
3) Al-Alwaki had evolved from being a "propagandist" to playing an "operational role" in al Qaeda--an assertion made for the first time ever by Obama after we killed him;
4) he was a "co-belligerant" (another Bush term for "enemy combatant"); and, taking a page directly from John Yoo,
5) the Authorization to Use Military Force against al Qaeda that Congress enacted shortly after 9/11 allowed this because al-Awlaki was a lawful target in the armed conflict.
Josh Gerstein of Politico reported that U.S. District Court Judge Leonie Brinkema approved the Justice Department's use of the constitutionally-questionable "silent witness rule" in the Espionage Act case against former Central Intelligence Agency (CIA) official Jeffery Sterling.
The controversial "silent witness rule" is an impediment to a defendant's constitutionally-guaranteed right to a public trial. The silent witness rule allows the witness, judge, jurors and attorneys to see evidence, but requires attorneys to question witnesses about the secret evidence in a secret code. Members of the press or public attending the trial will not understand what is happening in a supposedly "public trial."
Sterling's attorneys opposed use of the silent witness rule:
. . . the silent witness rule and the other security measures that the Government seeks to use are highly prejudicial to Mr. Sterling and deprive him of his right to a fair trial and violate his confrontation rights as guaranteed by the United States Constitution.
Here's what my son just learned in 7th grade civics:
The Due Process Clause of the Fifth Amendment is in many ways the backbone of the rights guaranteed by the Constitution. Due process is the simple notion that the Constitution requires governmental procedures to be fundamentally fair before a person may "be deprived of life, liberty or property."
The Obama administration's "justification" for the targeted assassination of Anwar al-Aulaqi--an American radical cleric who was killed by a U.S. drone strike yesterday--is that "What constitutes due process in this case is a due process in war," which is apparently no process at all.
If any presidential administration is going to commit controversial, and by all standards I can find, illegal, acts (like the targeted killing of an American citizen outside the United States who is suspected of terrorism), then it should be forced to articulate publicly its rationale, not hide behind some secret memo--that's so George W. Bush.
Under the Bush administration, and now the Obama administration, the due process guarantee is losing force as it has historically in times of national security crises.
"Due process in war" means no due process. Once again, anonymous government officials roll out the meme that governmental excesses are reasonable and necessary during times of war.
How's that been working for us? During World War I, the government imprisoned people for years for speaking out against the war effort. During World War II, the infamous and shameful Korematsu case endorsed the internment of more than 110,000 persons based solely on their Japanese ancestry. During the Cold War thousands of innocent people lost their jobs, were the subject of congressional investigations, or were incarcerated for their association with the Communist Party.
WaPo's editorial board suggests today that courts should abandon the one iota of accountability for cabinet-level Bush-era officials who authorized torture. The editorial questions a court's decision that American contractors and whistleblowers Donald Vance and Nathan Ertel are permitted to sue former Defense Secretary Donald Rumsfeld.
The lawsuit is based on claims that while Vance and Ertel were working as contractors in Iraq, the U.S. military kidnapped them, detained them without process, and tortured them using the "enhanced interrogation techniques" that Rumsfeld personally approved. Usually cabinet-level officials have immunity from lawsuits, but, in August, the fairly-conservative Seventh Circuit Court of Appeals found that the alleged conduct - the kidnapping and torture of American citizens - was so egregious that suit against Rumsfeld could proceed.
While WaPo's editorial acknowledges that "it may be ultimately wrong" to bar Vance and Ertel from seeking justice in the courts, WaPo accuses the Seventh Circuit of overstepping its authority:
But the court overreaches by creating expansive new rights that are not supported by precedent and that would best be weighed by Congress.
WaPo suggests that Vance and Ertel should have "pressed their claims through the military justice system," and if that failed, then Congress should provide a remedy. Congress appears too busy fighting about how to keep the U.S. from defaulting on trillions in debt and bickering over when Obama will give his next speech. WaPo's suggestions would not only mean no justice for Vance and Ertel, but also - yet again - no accountability for the high-level officials who orchestrated torture policies.
