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The past 72 hours has held one of the strangest disharmonic convergence of free speech events I have ever seen.
(1) On Tuesday, President Obama flourished his pretty rhetoric on free speech to the United Nations (UN):
Those in power have to resist the temptation to crack down on dissidents.
(2) A day later, the Sydney Morning Herald published US Air Force documents classifying Wikileaks and its founder Julian Assange as "enemies of the state," an action in sharp contrast to Obama's rhetoric about the importance of protecting dissent in a democracy.
Declassified US Air Force counter-intelligence documents, released under US freedom-of-information laws, reveal that military personnel who contact WikiLeaks or WikiLeaks supporters may be at risk of being charged with "communicating with the enemy", a military crime that carries a maximum sentence of death.
(3) The day after Obama's UN address, Assange addressed the UN from the Ecuadorian embassy where - fearing extradition to the U.S. - he has been granted asylum. Read FireDogLake's Kevin Gosztola for the highlights, including an understandable demand (especially in light of the fact that the U.S. government declared Assange the "enemy") that Obama live up to the free speech ideals Obama himself so eloquently presented to the UN:
President Obama spoke out strongly in favour of the freedom of expression. Those in power, he said, have to resist the temptation to crack down on dissent.
There are times for words and there are times for action. The time for words has run out. It is time for the US to cease its persecution of WikiLeaks, to cease its persecution of our people and it cease its persecution of our alleged sources.
It is time for President Obama to do the right thing and join the forces of change: not in fine words but in fine deeds.
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President Obama gave an eloquent speech to the UN yesterday. Obama spoke about democracy, freedom on the First Amendment:
Our Constitution protects the right to practice free speech.
Here in the United States, countless publications provoke offense. Like me, the majority of Americans are Christian, and yet we do not ban blasphemy against our most sacred beliefs. As president of our country, and commander in chief of our military, I accept that people are going to call me awful things every day, and I will always defend their right to do so.
Americans have fought and died around the globe to protect the right of all people to express their views – even views that we profoundly disagree with. We do so not because we support hateful speech, but because our founders understood that without such protections, the capacity of each individual to express their own views and practice their own faith may be threatened.
We do so because in a diverse society, efforts to restrict speech can quickly become a tool to silence critics and oppress minorities. We do so because, given the power of faith in our lives, and the passion that religious differences can inflame, the strongest weapon against hateful speech is not repression, it is more speech – the voices of tolerance that rally against bigotry and blasphemy, and lift up the values of understanding and mutual respect.
He encouraged those with power to avoid the temptation to silence dissent:
In other words, true democracy, real freedom is hard work. Those in power have to resist the temptation to crack down on dissidents.
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Chief US District Judge Royce Lamberth has long had a reputation for being a fiery jurist, but in yesterday's opinion on Guantanamo Bay detainees' access to counsel, Lamberth conveyed his understandable outrage with the government. Mincing no words, Lamberth accused the Executive Branch of infringing on the Judiciary's duty to protect individual rights, particularly the right to Habeas Corpus.
A little history here. It took Gitmo detainee attorneys more than 2 years – and a trip to the Supreme Court – to finally gain the right to visit and talk to their clients. Even then, the attorneys were forced to operate under severe restrictions designed to inhibit communication.
The Gitmo cases at hand involved the latest government attempt to obstruct detainees' access to counsel despite the fact that, as Lamberth put it,
In a litany of rulings, this Court and the Supreme Court have affirmed that the Federal courts are open to Guantanamo detainees who wish to prove their indefinite detentions are illegal.
The government sought to replace a judicial Protective Order regulating the process for detainees' access to counsel, which the courts oversaw, with a "Memorandum of Understanding" that access would be overseen entirely by the Executive Branch, which would inhibit detainees' ability to meet with counsel and petition the courts. Lamberth was having none of it.
Judge Lamberth's well-reasoned opinion speaks for itself. Key quotes:
The Government's reasoning is substantially flawed and confuses the roles of the jailer and the judiciary in our constitutional separation of powers scheme.
If the separation-of-powers means anything, it is that this country is not one ruled by Executive fiat. Such blanket, unreviewable power over counsel-access by the Executive does not comport with our constitutional system of government.
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Associated Press reported on the conflicting reports of suspected al-Qaeda leader Badruddin Haqqani's death:
The son of the founder of the powerful Haqqani network was been killed in an airstrike in Pakistan, Afghanistan’s intelligence agency said Sunday, providing the first public confirmation of rumors that have been swirling for days about the key member of a militant group the U.S. considers one of the most dangerous in the region.
The Taliban rejected reports of Badruddin Haqqani’s death, however, saying that he was alive and well in Afghanistan.
The US has refused to comment on the reports that Haqqani was killing in an "airstrike" – read "drone strike" – in Pakistan. Ironic, considering U.S. officials had plenty to say when a US citizen (Anwar Al-Awlaki) and then his innocent American son were killed in drone strikes in Pakistan.
Now, even though it appears that - unlike al-Awlaki's son, who was by all reports innocent of terrorist activity - Badruddin Haqqani, son of terrorist network founder Jalaluddin Haqqani, was actually an operational leader in the terrorist network.
Badruddin is considered a vital part of the Haqqani structure and is believed to have played an active role in kidnappings, extortion and high-profile operations in Afghanistan.
The US drone program has international relations consequences beyond even the dire constitutional consequences of killing Americans without a shred of due process, but the American public is relegated to conflicting reports from Afghanistan about the drone program because:
... the US does not comment publicly on its drone program, which is widely reviled by the Pakistani public and has been a source of tension with Islamabad.
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Glenn Greenwald wrote yesterday about "secrecy creep" – the retaliation against whistleblowers that has crept down from the White House into Executive branch agencies.
Whistleblowers have always been subjected to retaliation, but the retaliation used to be focused on marginalizing the whistleblower, shifting or eliminating the whistleblower's job duties, firing her, or yanking her security clearance. Now, with the Obama administration's war on whistleblowers, whistleblower retaliation includes polygraphs, systematic monitoring of whistleblowers' electronic activities, and prosecution under the Espionage Act – even at Executive agencies beyond the intelligence community.
Intelligence community whistleblowers like former National Security Agency (NSA) officials Bill Binney and J. Kirk Wiebe were targeted with criminal investigation and subjected to armed FBI raids. Even more severe, whistleblowers like former NSA official Thomas Drake and former CIA officer John Kiriakou were indicted under the Espionage Act.
Now Executive branch agencies outside the intelligence community are using the secrecy and surveillance tactics to punish whistleblowers.
Greenwald provides concrete examples of the secrecy creep resulting in increased whistleblower retaliation:
 . . . McClatchy reported on a criminal investigation launched by the Inspector General (IG) of the National Reconnaissance Office, America’s secretive spy satellite agency, against the agency’s deputy director, Air Force Maj. Gen. Susan Mashiko. After Mashiko learned that four senior NRO officials whose identities she did not know reported to the IG “a series of allegations of malfeasant actions” by another NRO official relating to large contracts, Mashiko allegedly vowed: “I would like to find them and fire them.”
 It was not until 2011 that the Interior Department . . . hired . . . a hydrologist, Dr. Paul Houser, who was previously an associate professor in George Mason University’s Geography and Geoinformation Sciences Department.
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We here at GAP are big fans of both whistleblower rights and funny things, though, for better or worse, they don't often cross paths. Until now! We were unimaginably delighted when The Daily Show with Jon Stewart aired a segment on whistleblowers last night. GAP National Security & Human Rights Director Jesselyn Radack and NSA whistleblower/GAP client Thomas Drake appeared on The Daily Show to talk to correspondent Jason Jones about how Drake was prosecuted as a spy (under the Espionage Act) for revealing massive waste, fraud and abuse at the agency. Watch the segment below!
Radack, herself a Department of Justice whistleblower before becoming a whistleblower advocate, and Drake talked about his case, highlighting the absurdity of Drake being charged as a spy.
For more on Drake's case and how it eventually backfired on the government, click here. Radack's whistleblowing was the subject of her recent book, Traitor: The Whistleblower and the 'American Taliban', which you can learn more about here.
Hannah Johnson is Communications Associate for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.
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I've said since the collapse of the Espionage Act case against National Security Agency (NSA) whistleblower Thomas Drake that the case was built on sand and collapsed under the weight of the truth.
Since the case collapsed last summer, the more information revealed publicly about the government's evidence only confirms the flimsiness of the evidence used to prosecute Drake under the heavy-handed Espionage Act. I wrote yesterday on a Washington Post editorial asking "is the classification system dysfunctional?" after it was revealed that an Espionage Act count was based on a completely innocuous and obviously unclassified e-mail.
Now, Steven Aftergood of the Federation of American Scientists reports on the release of NSA's supposed justifications for the clearly incorrect classification designations and former G.W. Bush administration classification czar's J. William Leonard's scathing critique of the NSA's after-the-fact decisions. All of the allegedly-classified information found in Drake's home underwent a "forced classification review" after which NSA experts claimed it was classified.
Props to Aftergood for using FOIA to get the information publicly released. It should give any American pause to consider the fact that not only will the government consider such bland and unremarkable information as "classified," but use that banal information as the basis to prosecute a whistleblower under the Espionage Act.
Leonard's complaint articulates how damaging it is to the classification system to over-classify information and use that wrongly-classified information to aggressively prosecute a whistleblower under the Espionage Act:
Nonetheless, when deciding to apply the controls of the classification system to information, government officials are in-turn obligated to follow the standards set forth by the President in the governing executive order and not exceed its prohibitions and limitations. Failure to do so undermines the very integrity of the classification system and can be just as harmful, if not more so, than unauthorized disclosures of appropriately classified information.
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Adding to the leak hysteria in Washington, the Senate Intelligence Committee advanced legislation purportedly to limit "leaks." WaPo reports:
The legislation, which has yet to be considered by the full Senate or House, would require the White House to notify Congress whenever it plans to share classified information with the public and would curb an increasingly common arrangement in which top national security officials take jobs as commentators on cable-television shows.
What Congress completely neglects to address in their apparent frustration that the White House leaks to the press before leaking to Congress, is that whistleblowers who are sources for Congress end up getting burned and monitored by the Executive branch.
If the Senate Intelligence Committee really wanted to stop media leaks and preserve its oversight abilities, it would enact meaningful whistleblower protections so that employees who bring concerns to Congress are adequately protected from retaliation. Such a measure would certainly give Congress more information than a head's up from the White House that the White House is planning to make public information that will no doubt benefit the administration.
UPDATE: For a full summary of the anti-leak measures in the Intelligence Authorization legislation see Steven Aftergood's analysis. Key quote:
And yet there is something incongruous, if not outrageous, about the whole effort by Congress to induce stricter secrecy in the executive branch, which already has every institutional incentive to restrict public disclosure of intelligence information.
National Security Agency (NSA) whistleblower Thomas Drake testified before two congressional committees and brought his concerns massive waste, fraud, abuse, and illegality at NSA to the House and Senate Intelligence Committees, in accordance with the Intelligence Community Whistleblower Protection Act. However, that didn't stop the Obama administration from charging him under the Espionage Act and threatening him with spending the rest of his life behind bars. (The case against Drake collapsed under the weight of the truth last summer).
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The Washington Post used the Freedom of Information Act (FOIA) to obtain one of the documents that formed the Espionage Act case against National Security Agency (NSA) whistleblower Thomas Drake. Former classification czar under G.W. Bush, J William Leonard, was slated to testify as a defense expert for Drake and called the case the most "deliberate and willful example of government officials improperly classifying a document," he had ever seen.
Leonard’s views, outlined in an affidavit, got some support with the release of a memo that formed part of the evidence against Drake.
The once "classified" document (scare quotes around "classified" as none of the information that formed the basis of the Espionage Act counts against Drake was actually properly classified) is now public. Ellen Nakashima of WaPo reported on innocuous information in the document that formed the basis of an Espionage Act charge against Drake for allegedly retaining the document improperly.
Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, also received the declassified memo from the NSA and said its disclosure reinforced questions raised about the prosecution.
“It’s utterly innocuous and practically devoid of meaningful content,” he said of the memo in an interview. “The idea that someone risked decades of prison over this document is an indictment of the agency and its classification policy.”
Leonard echoed those concerns in an e-mail to WaPo:
Leonard, speaking generally, said the system for classifying information is “becoming dysfunctional” and “clearly lacks the ability to differentiate between trivial information and that which can truly damage our nation’s well-being.”
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A House panel led by Rep. Darrell Issa (R-CA) voted yesterday to hold Attorney General Eric Holder in contempt after the Obama administration's first assertion of the rarely used Executive Privilege to withhold information from Congressional investigators about the botched Operation "Fast & Furious." (Full disclosure: GAP represents some of the Fast & Furious whistleblowers).
I'm no fan of Rep. Issa, and suspect this contempt citation has more to do with politics than transparency, but the Obama administration is not doing itself any favors by picking this moment and this scandal as its first assertion of Executive Privilege. To the extent the Obama administration wants to combat the recent "leak" hysteria and accusations that the White House leaked highly-classified information about sources and methods for political gain, this is a horrible moment to assert executive privilege.
The president’s move to invoke executive privilege was the first time that he had asserted his secrecy powers in response to a Congressional inquiry. It elevated a fight over whether Mr. Holder must turn over additional documents about the gun case into a constitutional struggle over the separation of powers.
But, it is not the first time the Obama administration has sought to control the flow of information to the public. The Obama administration has continually asserted the state secrets privilege to shut down lawsuits seeking accountability for Bush-era torture, extraordinary rendition, and warrantless domestic surveillance. The Obama administration's record-breaking number of Espionage Act prosecutions brought against so-called "leakers," who are usually whistleblowers, sends a disastrously chilling message to all government employees: if you reveal government fraud, waste, abuse, illegality, or embarrassing information, you risk not only choosing your conscience over your career, but also over your freedom.