Last night, Wikileaks released more than 91,000 classified documents related to the Afghan war, which reveal in excruciating detail the uphill battle American troops have faced in battling the Taliban and in working with Pakistani "allies" who are also helping the Afghan insurgency.

Our country needs to have a serious conversation about supposedly classified documents (under classification laws, you can't classify something to hide its illegality or to avoid embarrassment) vs. the public's right to know.

Because the Obama administration can't catch Wikileaks.org (its founder is the target of a worldwide manhunt launched by the Pentagon), it is bound and determined to make an example out of Thomas Drake, James Risen and other whistleblowers who supposedly "leaked."

The U.S. Attorney Massacre of late 2006 was something that broke largely in the blogosphere--and was the subject of hundreds of diaries here at Daily Kos--before the MSM caught on to one of the bigger scandals of the Bush administration.

I know, I know.  I should not be surprised. The Justice Department's decision yesterday that no criminal charges will be filed in the Bush administration's dismissal of 9 U.S. Attorneys is part of the whole looking forwards, not backwards mantra.

But if we are going to look past the most horrific crimes of the Bush administration--torture, warrantless wiretapping, political firings--then it makes it particularly grotesque and obscene that the Obama administration is willing to continue--and ratchet up--Bush-era investigations into people who tried to do the right thing, like NSA whistleblower Thomas Drake and reporter James Risen.

Close to 30% of the intelligence workforce is comprised of private contractors, who are accountable to shareholders and not the public, often make twice as much money (as well as perks like BMWs and signing bonuses) as civil servants for the same job, and--contrary to federal rules--are performing "inherently government functions."

In the second part of its explosive series stemming from a two-year investigation, the Washington Post today focuses on the government's dependency on private contractors who, like the secrecy industry that has ballooned since 9/11, have astronomically increased in number.

Today's Washington Post has a 2000-word profile on former senior NSA official Thomas Drake, who blew the whistle on (in the article's antiseptic description) NSA's "willingness to compromise Americans' privacy without enhancing security"--something that we here at Kos used to call "secret domestic surveillance."

The article states that Drake is "awaiting trial in a criminal media leak case." He is actually indicted under the Espionage Act--a law under which the Russian spies were not even charged--and is only the fourth American in history to be charged under this law for allegedly (mis)handling classified information (the first was Penatgon Papers whistleblower Daniel Ellsberg).

While this article is one of the fuller portraits on Drake to date, I will add critical information below that for space limitations, editing, or whatever reason, didn't make it into the piece.

Even the Washington Post gets it. In its article on the criminal charges brought against Army intelligence analyst Pfc. Bradley Manning, the sub-headline to the article reads:

U.S. Taking Tough Line on Leaks.

The opening paragraph states that the military charging Bradley Manning

is likely to further deter would-be whistleblowers.

I don't care if it's Bush or Obama at the helm. The biggest crimes of our generation--torture, warrantless wiretapping, and extraordinary rendition--would not have come to light but for the unauthorized disclosure of classified information. For the hand-wringing "but we can't willy-nilly reveal classified information" crowd, do you think Abu Ghraib wasn't classified?

We are told (though there has been not a shred of evidence other than the government saying this, and even the charges do not reflect this number) that Manning gave some 250,000 classified State Department cables to Wikileaks.org. But all we really KNOW is that the website published a horrific video of an American helicopter massacring unarmed Iraqi civilians and cheering on each other as if it were a video game.

And the former senior National Security Agency (NSA) official Thomas Drake? The party line is that he "leaked" classified material to a newspaper. If you read the indictment, he has really been indicted under the Espionage Act, a 93-year-old law meant to catch spies, for allegedly "retaining" classified information. What the government is really mad about is that an article appeared in the Baltimore Sun describing how and why the NSA opted for an invasive surveillance program called "Trailblazer" over on that could more adequately collect the necessary information without violating people's privacy.

Short of killing someone (think Karen Silkwood, and more recently, of the "worldwide manhunt" for Wikileaks founder Julian Assange launched by the Pentagon), this is the worst, and increasingly popular, form of retaliation that can be taken against a whistleblower: criminal prosecution for revealing the truth--which in both the Manning and Drake cases did no harm to national security, but instead committed the far worse "crime" of embarrassing the government. In fact, both these men were trying to expose conduct they thought, and that was, criminal.

I urge you to "like" the Save Tom Drake page on Facebook and to check out the Help Bradley Manning website.

The essence of Government is power; and power, ledged as it must be in human hands, will ever be liable to abuse.
-- James Madison

Jesselyn Radack is the Homeland Security & Human Rights Director for the Government Accountability Project, a whistleblower protection organization. This article was cross-posted from her Daily Kos diary.

 

The following op-ed was written by GAP Legal Director Tom Devine, and published on July 2, 2010.

Civil libertarians have denounced the April indictment of senior National Security Agency official Thomas Drake for blowing the whistle on NSA mismanagement and its disregard for citizens' privacy rights. Drake has been charged with misuse of classified documents that were leaked to the media. While the facts in Drake's case are not in, some things are clear: Whistleblowers have no other viable option in the current system. The lack of internal accountability makes leaks inevitable.

At a 2006 hearing of the House intelligence committee, then-Chairman Peter Hoekstra (R-Mich.) articulated the best kind of anti-leak policy: We "need to make sure the whistleblower process is an open door, so that these folks are not faced with . . . an environment where they don't have a choice, that they see something they don't like, that they just go, 'Well, I'll just go to the press.' "

Now, however, the door is closed. The still-unresolved ordeal of Marine Corps whistleblower Franz Gayl illustrates the reality faced by many who blow the whistle on national security issues. Gayl's disclosures led to the belated delivery to Iraq of Mine-Resistant Ambush-Protected vehicles. The MRAP shipment had been held up by mismanagement and other issues for 18 months -- a delay that has been linked to the deaths of more than 700 troops. Instead of offering thanks for saving lives, the Marine Corps launched a criminal investigation of Gayl for allegedly citing a classified document improperly in an internal report.

Making waves within a security agency too often results in a criminal investigation such as the one Gayl experienced, a threatened loss of security clearance, or both. And anti-retaliation "protections" are riddled with loopholes. Since 1978, only one person at the FBI and one intelligence worker have won lawsuits for whistleblower retaliation -- little surprise given how the law makes a sham of due process. The agencies serve as judge and jury of their conduct, with no independent review. No wonder it can seem less risky to employees to leak anonymously to the media than to tell what they know to the agency officials who need the information.

Worse, shooting the messenger undermines our nation in the fight against terrorism. The Sept. 11 commission report showed that information bottlenecks within government were a major contributor to America's vulnerability. Examples are not hard to find: Flags raised about the men who carried out the attacks of Sept. 11, 2001. A 90 percent failure rate in airport screening security in the 1990s. Mismanagement that turned federal air marshals into open targets in flight in 2003 and 2004. The vulnerability of nuclear weapons plants and research facilities in 1997. Customs and border breakdowns in the mid-2000s.

Apart from strengthening bureaucratic weak links in the war against terrorism, whistleblowers have been valuable in exposing governmental abuses, regardless of party or ideology. National security employees and contractors were critical to making the public aware of indiscriminate, warrantless surveillance begun in the aftermath of Sept. 11. While such disclosures enraged the NSA, they have been America's best line of defense against threats to freedom from our own government.

The good news in all this is that we are close to a breakthrough. After 10 years, Congress is on the verge of repairing the dysfunctional Whistleblower Protection Act for government employees, and the restored act would for the first time cover FBI and intelligence employees. The House bill would allow whistleblowers to challenge retaliatory investigations before they become indictments. The House and Senate bills would allow national security workers to safely disclose what they "reasonably believe evidences" mismanagement, violations of law, waste and abuse, including as part of their job duties.

Procedural tactics have prevented a Senate vote since December, despite support from Senate leadership. The House has passed its bill twice, in 2007 and 2009. For the first time since 1978, the Justice Department has not testified against a stronger whistleblower law, and the Senate homeland security committee has unanimously approved the whistleblower act four times since 2004. But lawmakers have not overcome repeated secret holds by opponents.

National security whistleblowers face a Catch-22. They can engage in professional suicide by operating within the system or risk criminal prosecution by leaking to the media. No wonder so many remain silent. And in the end, the public loses.

The writer is legal director of the Government Accountability Project and has worked on more than 5,000 whistleblower cases, including that of Franz Gayl.

This post also appears on GAP Homeland Security Director Jesselyn Radack's Daily Kos blog.

The government used to fire, blacklist and bankrupt whistleblowers. But now the government has upped its ante: it is prosecuting them.

Three weeks ago, former NSA whistleblower Thomas Drake was indicted for "leaking."

In today's Washington Post, there's a great article on financial whistleblower Bradley Birkenfeld. He complied with a whistleblower incentive law and ended up in jail.

This is a toxic trend that must stop.

Bradley Birkenfeld is a former banker with UBS, Switzerland's largest bank, who shattered 75 years of Swiss bank secrecy by blowing the whistle on American tax dodgers who hid money in Swiss bank accounts.

Birkenfeld's story is more than a cautionary tale. It is a glaring stop sign for any potential financial whistleblower. The new IRS Whistleblower Reward Program enticed him to come forward with a law that turned into virtual entrapment.