What do a retired Catholic Bishop, Wikileaks founder Julian Assange, and a United Arab Emirates' newspaper commentator have in common? They are all critical of the government's unprecedented use of the Espionage Act to prosecute whistleblowers.

Yesterday, I wrote about a significant piece in the United Emirates' newspaper The National, which criticized the U.S. government's hypocrisy in declining to criminally prosecute government officials who authorized, orchestrated and committed torture during the G.W. Bush-era while prosecuting John Kiriakou – a Central Intelligence Agency (CIA) whistleblower who helped expose torture – under the heavy-handed Espionage Act.

Yesterday, retired Catholic Bishop John McCarthy similarly criticized Kiriakou's prosecution:

Dear Lord, something is really out of balance here. Interrogators who tortured prisoners or the officials who gave the orders, the attorneys who authored the torture memos, CIA agents who destroyed the interrogation tapes have not been held professionally accountable, much less charged with crimes, but John Kiriakou is facing decades in prison for helping to expose torture.

The hypocrisy of Kiriakou's case is enough to find common ground between a retired Catholic Bishop and commentator for the UAE's newspaper, yet the U.S. is still doggedly pursuing Kiriakou using the archaic Espionage Act, a law meant to go after spies, not whistleblowers.

Bishop McCarthy also recognized the invaluable role of whistleblowers in governmental and private institutions, including within the Catholic Church.

Nevertheless, because of that weakness, sin and corruption abounds all around us in the corporate world, the government and sadly even the Church. Because of this, there is a need for people with integrity within these massive organizations and movements to have the courage to stand up, criticize and, if necessary, publically condemn evil, dishonesty, mismanagement, theft, etc. This is very hard to do because large organizations dont like any criticism, much less public criticism and they will often move against the complainer with a very heavy hand.

The Washington Post has a dangerously misguided editorial strongly defending the Executive's right to indefinitely detain even U.S. citizens under the Section 1021(b)(2) of the National Defense Authorization Act (NDAA) and criticizing Judge Katharine Forrest's recent opinion in Hedges v. Obama, which permanently enjoined Section 1021(b)(2)'s enforcement. WaPo mischaracterizes Section 1021(b)(2) of the NDAA as a well-reasoned compromise appropriately respectful of individual rights when in fact the NDAA grants the Executive branch broad, unchecked power to indefinitely detain Americans.

For those not following Hedges v. Obama, the lawsuit is a challenge to section 1021(b)(2) of the NDAA brought by

a group of writers, journalists, and activists whose work requires them to engage in writing, speech, and associational activities protected by the First Amendment. They have testified credibly to having an actual and reasonable fear that their activities will subject them to indefinite military detention pursuant to § 1021(b)(2).

WaPo accuses Judge Forrest of "judicial activism" - a stale accusation thrown out against any number of judges who have stood up to executive power. (Former Supreme Court Justice Earl Warren weathered constant accusations of "judicial activism" as his court consistently ruled for school desegregation).

Contrary to WaPo's cries of "judicial activism," Forrest was acting exactly as judges should act - as safeguards of individual constitutional rights. As the New York Times editorial board said:

The judge's willingness to take constitutional claims seriously was a refreshing departure from too many other judges in cases involving national security. If the government is unhappy with the ruling, it can largely blame its failure to adequately limit and define detention authority.

Forrest's 112-page opinion is thorough, well-reasoned, and brave.

Some key quotes from Forrest's must-read opinion:

Heedlessly to refuse to hear constitutional challenges to the Executive's conduct in the name of deference would be to abdicate this Court's responsibility to safeguard the rights it has sworn to uphold . . . Courts must safeguard core constitutional rights.

When squarely presented with an unavoidable constitutional question, courts are obliged to answer it.

Any period of detention (let alone years) for what could be an unconstitutional exercise of authority, finds no basis in the Constitution.

First Amendment rights are guaranteed by the Constitution and cannot be legislated away.

The public has a strong and undoubted interest in the clear preservation of First and Fifth Amendment rights.

Shortly after Forrest issued her opinion, the Obama administration requested a stay, a request Forrest sharply rebuked. The Obama administration has pledged to file an emergency stay request with the Second Circuit Court of Appeals.

Judge Forrest deserves credit for confronting and correctly deciding the constitutional question presented by indefinite detention of Americans. Indefinite detention without due process is antithetical to a democracy, no matter what spin the Executive or WaPo editorial board puts on it.

This post originally appeared on Radack's Daily Kos blog.

Jesselyn Radack is National Security & Human Rights Director for the Governent Accountability Project, the nation's leading whistleblower protection and advocacy organization.

Reports have surfaced about a new book on the Bin Laden raid by an anonymous Navy Seal who, according to the book's publisher, "was one of the first men through the door on the third floor of the terrorist leader’s hideout and was present at his death."

This latest book (titled No Easy Day: The Firsthand Account of the Mission That Killed Osama bin Laden and due out next month) did not go through the pre-publication review process. From WaPo:

Officials indicated Wednesday that neither the author nor the publisher had cleared the book’s contents with the Defense Department or the CIA, a step ordinarily required by former service members or spies seeking to write about classified operations.

The Obama administration ought to look in the mirror before expressing too much anger about the book considering the administration is the biggest "leaker" of all, especially when it comes to the Bin Laden raid, a point not lost on WaPo:

It could also raise legal and political issues for the Obama administration, which has carried out an aggressive crackdown on leaks even while it has also been accused of offering access to journalists and moviemakers to exploit the success of the bin Laden operation.

The pre-publication review processes, particularly at intelligence agencies, are notoriously favorable to pro-government publications and unfavorable toward critical writings. Worse, even authors who go through the pre-publication review process – like my clients John Kiriakou and Peter Van Buren – are not protected from retaliation for their books.

CIA whistleblower John Kiriakou submitted his 2009 book, The Reluctant Spy: My Secret Life in the CIA's War on Terror, for pre-publication review and worked with the CIA for years negotiating to get his book approved. Now Kiriakou has been indicted under the Espionage Act - the sixth person to be indicted in the Obama administration's record-braking war on whistleblowers - and is facing decades in prison. One of the charges against him despite his cooperation with the pre-publication review process: lying to the CIA's pre-publication review board. More specifically, Kiriakou is charged with trying to trick the CIA's board, but being unsuccessful – meaning CIA approved the book in its entirety. The charge is based upon an e-mail Kiriakou allegedly sent not to the CIA's board, but to his co-author. (If you find it baffling that the Justice Department has used this as the basis for a felony charge, you are not alone.)

President Jimmy Carter penned a must-read op-ed in today's New York Times, sharply criticizing the current President.  Carter and Obama share more than having held the same office, they are also both Nobel Peace Prize winners.

Here's what one Nobel Peace Prize winner has to say about the policies of another:

The United States is abandoning its role as the global champion of human rights.

Citing the Obama administration's assassination-by-drone program, the National Defense Authorization Act's (NDAA) indefinite preventive detention provisions, increased authorities for government warrantless domestic spying on innocent Americans, and the still-open-for-business and holding 169 prisoners Guantanamo Bay facility, Carter eloquently describes the consequences of the U.S.'s moving backward on human rights.

At a time when popular revolutions are sweeping the globe, the United States should be strengthening, not weakening, basic rules of law and principles of justice enumerated in the Universal Declaration of Human Rights. But instead of making the world safer, America’s violation of international human rights abets our enemies and alienates our friends.

Particularly astute are Carter's descriptions of the drone assassination program, something some Kossacks have actively supported. (See some of the comments to my prior diaries on the program here, here, and here.) Carter was particularly incensed by the number of innocent lives "sacrificed" in drone attacks:

Despite an arbitrary rule that any man killed by drones is declared an enemy terrorist, the death of nearby innocent women and children is accepted as inevitable. . . . We don’t know how many hundreds of innocent civilians have been killed in these attacks, each one approved by the highest authorities in Washington. This would have been unthinkable in previous times.

Prosecute Jose Rodriguez for violating the anti-torture statute (18 U.S.C. § 2340A).

He did it.  Enjoyed doing it. And would do it again.

Rodriguez admitted on 60 Minutes that he organized, ordered, and destroyed evidence of "enhanced interrogation techniques." Yesterday's 60 Minutes featured CIA rendition-supporter/torture proponent/videotape destroyer Jose Rodriguez, giving him a platform to pimp his new book, Hard Measures: How Aggressive CIA Actions After 9/11 Saved American Lives, which discusses CIA black sites and touts torture. (It should not be lost on anyone that Simon & Schuster gave Rodriguez a book contract, 60 Minutes gave Rodriguez a main-stream-media platform, and CBS owns both Simon & Schuster and 60 Minutes.)

Despite Rodriguez admitting his crimes on national television, the only person the Obama administration has criminally prosecuted in connection with the Bush-era torture program is John Kiriakou, who refused to participate in torture and blew the whistle on waterboarding.

How can we be a nation of laws when a former government official can proudly boast about his criminal behavior on national television without consequence?

Rodriguez's callous descriptions of torture do not make his behavior any less criminal:

We made some al Qaeda terrorists with American blood on their hands uncomfortable for a few days.

Rodriguez adopts the Nixonian "logic:" "if the President approves it, it's not illegal." This shouldn't save him from prosecution. "No one is above the law" – at least that is what Attorney General Holder told the Senate under oath during his confirmation hearings. Moreover, despite Rodriguez's stubborn re-naming waterboarding an "enhanced interrogation technique," there is no credible debate about whether waterboarding is torture. We can thank Attorney General Holder for that as well, as he unequivocally agreed under oath that "waterboarding is torture."

Well-played, Justice Department. Indict former CIA officer John Kiriakou on Tuesday evening, but don't unseal the indictment until 4:59pm on Thursday, right before the holiday weekend, in order to avoid press coverage of the Obama administration's 6th Espionage Act prosecution of a whistleblower.

Before I start deconstructing the Indictment, here's a key to reading the tea leaves:

Officer A = undercover
Officer B = former CIA career & targeting analyst Deuce Martinez (never undercover)
Journalist A = Matthew Cole
Journalist B = Scott Shane
Journalist C = mentioned in original charges, but dropped from Indictment

Facts Not in the Indictment/Kiriakou's Whistleblowing Disclosures:

* Refused to be trained in torture tactics
* First CIA officer to call waterboarding "torture" (2007/ABC News)
* Helped expose CIA's torture program as policy rather than playtime (2009/The Reluctant Spy: My Secret Life in the CIA's War on Terror)

It's outrageous that John Kiriakou, a whistleblower, is the ONLY INDIVIDUAL TO BE PROSECUTED IN RELATION TO THE BUSH ADMINISTRATION'S TORTURE PROGRAM.

On April 3, 2012, the Obama administration indicted intelligence whistleblower John Kiriakou. Kiriakou is the sixth whistleblower that the Obama administration has charged under the Espionage Act for the alleged mishandling of classified information – more than all past administrations combined. In a rare move, the indictment was sealed until today.

Kiriakou is a Central Intelligence Agency (CIA) veteran who headed counterterrorism operations in Pakistan after 9/11, organized the team operation that captured suspected al-Qaeda operative Abu Zubaydah, and refused to be trained in torture interrogation tactics. In December 2007, Kiriakou gave an on-camera interview to ABC News in which he disclosed that Zubaydah was "waterboarded" and that "waterboarding" was torture. Kiriakou was one of the first CIA officers to label waterboarding as torture, and his interview helped expose the CIA's torture program as policy, rather than the actions of a few rogue agents. Kiriakou further exposed the CIA's torture program and the CIA's deception about torture even to its own employees in his 2009 book, The Reluctant Spy: My Secret Life in the CIA's War on Terror.

Government Accountability Project (GAP) National Security & Human Rights Director Jesselyn Radack, a Department of Justice (DOJ) whistleblower herself, represented National Security Agency (NSA) whistleblower Thomas Drake, the first individual indicted by the Obama administration under the Espionage Act for disclosing massive waste, fraud, abuse and illegality at the NSA through proper channels. The DOJ case against Drake fell apart days before the trial was set to begin last summer, in what was widely seen as a bellwether case for future prosecutions, like that of Kiriakou.

"John Kiriakou is the new Thomas Drake," stated Radack, continuing, "And the case against Kiriakou is just as flimsy as the one against Drake. The Obama administration's unprecedented use of the Espionage Act to target whistleblowers sends a chilling message to any national security worker considering blowing the whistle on corruption and wrongdoing. The Espionage Act is an archaic World War I-era law intended to go after spies, not whistleblowers."

Inexplicably, Kiriakou's indictment was sealed until today. Radack noted "There was no flight risk for Kiriakou, who had already been arrested in January, and no reason to keep the indictment under seal, except perhaps to delay press coverage of the Obama administration's latest criminal prosecution of a whistleblower."

Radack added, "It is outrageous that John Kiriakou – the whistleblower – is the only individual to be prosecuted in relation to the Bush administration's torture program. The interrogators who tortured prisoners, the officials who gave the orders, the attorneys who authored the torture memos, and the CIA agents who destroyed the interrogation tapes have not been held professionally accountable, much less charged with crimes. But John Kiriakou is facing decades in prison for helping expose torture. The fact that national security whistleblowers have become the exception to the Obama administration's meme of 'looking forward, not back' at Bush-era crimes sets a dangerous precedent: if you torture a prisoner, you will not be held criminally liable, but if you blow the whistle on torture, you risk criminal prosecution under the Espionage Act."

Members of the media interested in speaking with Radack can contact GAP Communications Director Dylan Blaylock at dylanb@whistleblower.org to schedule an interview.


Dylan Blaylock is the Communications Director of the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.

The Washington Post reports:

Attorney General Eric H. Holder Jr. on Monday plans to provide the most detailed account to date of the Obama administration’s legal rationale for killing U.S. citizens abroad, as it did in last year’s airstrike against an alleged al-Qaeda operative in Yemen, officials said. . . . his speech Monday will mark a new and higher-profile phase of the administration’s campaign to justify lethal action in those rare instances in which U.S. citizens, such as New Mexico-born Anwar al-Awlaki, join terrorist causes devoted to harming their homeland.

But when GAP (and other civil liberties groups) request the legal memo justifying the killing of al-Awlaki from the Office of Legal Counsel (OLC), OLC maintains that the "existence or non-existence" of the memo is classified.

To review the Justice Department's completely ridiculous and indefensible position on the assassination memo:

• Days after the Obama administration engages in the targeted killing of an American citizen without due process, anonymous "administration officials" leak the existence of the legal memo rationalizing the assassination to the Washington Post.  
• When the "don't worry, we've got a legal memo" excuse fails to satisfy civil libertarians questioning the expansion of Executive power to killing American citizens without affording a bunch of fundamental Constitutional rights (due process, jury trials, right to confront accusers, etc.), details of the memo appeared on the New York Times front page, including when the memo was written, who authored the memo, the memo's legal reasoning, and even the memo's number of pages in the memo.
• Now, the Attorney General is going to give a public speech at Northwestern University Law School important enough to warrant more anonymous leaks to WaPo further detailing the "logic" of assassinating Americans.

As GAP Communications Director for the last seven years, I've heard about more than my fair share of travesties and wrongdoing within the federal government. But the evidence that whistleblowers relay to us involving defense, war and intelligence – the travesties that are committed, the wrongdoings and despicable behavior that is covered up – is exceptionally disappointing, considering the stakes. GAP has heard from hundreds of these federal employees over the past few years who simply don't know where to begin. Like many truth-tellers, they feel lost and isolated ... but these particular whistleblowers often reach a point where they deeply question their long-held assumptions about our government. Their very core can be shaken.

While these employees often feel alone – dealing daily with materials they cannot speak to their family about – they should (and must) understand that others have found themselves in similar situations before. And a very prominent whistleblower – GAP National Security & Human Rights Director Jesselyn Radack – has just published her new memoir about her experience as the Department of Justice (DOJ) whistleblower on the treatment of John Walker Lindh.

Her new book is: Traitor: The Whistleblower and the "American Taliban"

This excellent book walks the reader through Jesselyn's experiences as an ethics adviser at the DOJ who disclosed that the FBI committed ethical violations in its interrogation of Lindh, such as interrogating him without an attorney present. She also exposed that the DOJ attempted to suppress that information, and that former Attorney General John Ashcroft and other senior government officials made misleading public statements about the case.

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.