American Civil Liberties Union (ACLU) Deputy Legal Director Jameel Jaffer writes in Huffington Post about the upcoming deadline in the lawsuit challenging the FISA Amendments Act of 2008, which legalized unprecedented levels of government surveillance on Americans.

. . . the administration must decide by Tuesday whether to ask the Supreme Court to intervene in the ACLU's constitutional challenge to the FISA Amendments Act . . . For a full decade, the executive branch -- first the Bush administration and now the Obama administration -- has used the standing and "state secrets" doctrines to insulate its most intrusive surveillance activities from public oversight and judicial review. But . . . [t]he courts have a role to play in ensuring that government surveillance complies with the Constitution. We'll find out on Tuesday whether the Obama administration is finally willing to let the courts play that role.

[The FISA Amendments Act] . . .  is scheduled to sunset in December, which means that the litigation will unfold against the background of a congressional reauthorization debate.

The congressional and legal battles on warrantless surveillance also come with a more informed public, thanks in part to Jane Mayer's extensive New Yorker story on National Security Agency (NSA) whistleblower Thomas Drake. Senators Ron Wyden (D-OR) and Mark Udall (D-CO) also warned that the public would be stunned and angry when we found out about the Justice Department's secret interpretation of another spy provision (PATRIOT Act Section 215) radically expanded in the aftermath of 9/11.

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 . . .

Thomas Drake and Jesselyn Radack at the Ridenhour AwardsThis coming Monday, February 13, GAP National Security & Human Rights Director Jesselyn Radack and National Security Agency (NSA) whistleblower Tom Drake will speak at Americans Who Tell the Truth: Ethics, Integrity and the Law, a “Founder's Day” event at the American University Washington College of Law (WCL), presented by the National Lawyers Guild and the WCL Program on Law and Government. 

In addition to Radack and Drake, this program features a keynote address by Ralph Nader and talks by other notable activists and whistleblowers. The event is a mixed symposium of speaker portraits by artist Robert Shetterly and presentations by the individuals depicted in the art. Presentations will focus on ethics and integrity in the context of fighting for positive social change. 

The symposium runs from 12 pm – 6 pm on Monday at the AU Washington College of Law, Room 603. More on the event can be found here.

About Radack and Drake

Jesselyn Radack is a former ethics adviser at the Department of Justice (DOJ) 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 that 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.

The Food and Drug Administration (FDA) has admitted to monitoring the personal e-mail accounts of whistleblowers communicating with Congress.

The Food and Drug Administration said Thursday that it monitored the personal e-mails of employees who had concerns about unsafe medical devices beginning in April 2010 . .

While it might be possible to credibly argue that, at work, employees have a diminished expectation of privacy, secret government surveillance of employees' e-mails is a dangerous slippery slope. Invasion of employee privacy was not the only consequence to the monitoring:

The FDA relied on the information it gleaned through secret surveillance to fire, harass or pass over for promotion at least six doctors and scientists who communicated with Congress . . .

The FDA monitored employees who attempted to raise concerns about unsafe medical devices - a danger to health and public safety. Members of Congress were not pleased about the inappropriate surveillance and retaliation:  

In a letter Thursday to FDA Commissioner Margaret Hamburg, House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) warned that the FDA’s monitoring of personal communications between FDA doctors and congressional staff was “unlawful and will not be tolerated.” . . . FDA’s purpose appears to have been unlawful because retaliation against a whistleblower is illegal.”

A similar investigation has been launched by Sen. Charles E. Grassley (R-Iowa), whose staff communicated with the FDA doctors about their concerns. Grassley wants to know, in particular, if the FDA obtained passwords to the employees’ personal e-mail accounts, allowing their communications on private computers to be intercepted.