Last night I discussed a variety of whistleblower issues currently in the news:

Over the weekend, I attended a TRUTHCON event presented by the Bradley Manning Support Network and the Georgetown Chapter of the National Lawyers Guild. (Go here to support Bradley Manning now). In the coming weeks Manning's attorneys are set to argue Manning's motion to dismiss the charges based on a failure to provide Manning with a speedy trial and a motion to dismiss the charges based on unlawful pre-trial punishment, specifically allegations of Manning's torture.

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.

Whatever your opinion of Wikileaks founder Julian Assange, he was right when he called for an end to the war on whistleblowers in his speech outside the Ecuadorian Embassy in London yesterday:

The U.S. administration's war on whistleblowers must end. Thomas Drake, William Binney, John Kiriakou, and other heroic whistleblowers must be pardoned or compensated for the hardships they have endured as servants of the public record.

While my clients' stories differ greatly from Assange's, the Obama administration has threatened to criminally prosecute all of them with the same draconian Espionage Act, a law meant to go after spies not whistleblowers. And the effect of the Obama administration's policy – if not the goal – is the same for my clients and Assange - to silence dissent.

Despite that Assange is often attacked for only looking out for himself (who could blame him considering London police were waiting outside the Ecuadorian embassy to arrest him?), he took time in his minutes-long speech to reach out to others who have been prosecuted. He also correctly identified the Obama administration's war on whistleblowers as a war on journalists and the media, a connection made by myself, Glenn Greewald, and the US main stream media itself.

The United States must pledge before the world that it will not pursue journalists for shining a light on the secret crimes of the powerful.There must be no foolish talk about prosecuting any media organisations, be it Wikileaks or the New York Times.

Assange calls for an end to U.S.'s "witch hunt" against Wikileaks called to mind Supreme Court Louis Brandeis:

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women.

WikiLeaks founder Julian Assange sought asylum from the Ecuador Embassy in London. As a signatory to the Universal Declaration on Human Rights, the Embassy has an obligation to review his application and should grant it.

Asylum eligibility has three requirements, all of which Assange meets: 1) a fear of persecution, 2) on account of a protected ground (in Assange's case, "political opinion"), and 3) a government is either involved in the persecution (in Assange's case, the United States) or unable to control the conduct of private actors.

After Britain rejected Asange's bid to reconsider extradition to Sweden to face questioning over sexual misconduct allegations (Assange has not been charged with any crime by any nation), Assange sought asylum from the Ecuador Embassy in London.

Under the criteria that even the U.S. follows, he qualifies. Few would contest that he has a valid fear of political persecution. And certainly a government, primarily the United States, is behind it.  The Pentagon launched a world-wide manhunt against Assange. Senator Dianne Feinstein (D-Cal.), who chairs the Senate Intelligence Committee, wrote an Op-Ed stating conclusively that

Mr. Assange continues to violate the Espionage Act of 1917

, a law the United States has used in a brutal crackdown on whistleblowers, often involving trumped up criminal charges. (See the case of my client and fellow Kossack Tom Drake.)

James Risen of The New York Times, James Bamford, author of The Puzzle Palace: Inside the National Security Agency, America’s Most Secret Intelligence Organization and Matthew Miller, former spokesman for the Justice Department, discussed the Obama administration’s crusade against leaks of government secrets – and against some of the journalists who report them – at the National Press Club in Washington on May 1, 2012.

I had a chance to ask Bamford and Miller a question about the State Department’s assertion that despite being available online to the entire world, the WikiLeaks documents remain “classified,” and indeed government employees can be prosecuted for referring to them. Here is his reply (it should start around the 56' mark):

Last night, the National Press Club and Overseas Press Club of America hosted a prestigious panel discussion on Obama's war on whistleblowers. (Jake Tapper was set to moderate the discussion, but was called away for President Obama's "last year we got Bin Laden" speech).

First to speak was New York Times journalist and author Jim Risen, subject of three subpoenas – including two by the Obama administration – to testify about his sources in the Espionage Act case against former CIA officer Jeffery Sterling. Risen explained the history of the Executive branch's pursuit of his sources.

First, the Bush administration launched a multi-million dollar, multi-year "leak" investigation searching for the sources for his (and Eric Lichtblau's) Pulitzer Prize-winning 2005 article that exposed the National Security Agency's (NSA) unconstitutional warrantless wiretapping program. When that investigation dried up, the Bush administration – and later the Obama administration – targeted several chapters in his book, State of War, finally landing on the chapter about the CIA's botched attempt to sabotage Iran's nuclear program for which Sterling is the suspected source.

In its recent court filings in the Sterling case, the Obama Justice Department argued that there is no reporter's privilege in a criminal case. Risen was unable to discuss the case specifically as it is currently set for oral argument before the Fourth Circuit on May 18th, but he did eloquently articulate the reason for his battle:

Can you have a democracy without aggressive investigative journalism? I don't believe you can, and that's why I'm fighting.

(paraphrased).

Risen's fellow panelist, NSA expert and author James Bamford, brought the powerful visual of two massively thick binders that would have been his testimony in the Espionage Act case against NSA whistleblower Thomas Drake. (Bamford did not testify because the government's case crumbled under the weight of the truth days before trial). Bamford explained that his testimony would have shown that all of supposedly classified information the Justice Department was claiming Drake illegally retained was not only in the public domain, but put into the public domain by NSA and Executive branch officials. When it comes to government claims of classification, Bamford said he knows from experience that:

You have to fight them every chance you get.

(paraphrased).

The audience was as prominent as the panel, and included NSA whistleblower and former Espionage Act defendant Thomas Drake, CIA whistleblower and current Espionage Act defendant John Kiriakou, and We Meant Well author and whistleblower Peter Van Buren.

No one from the Justice Department showed up because they supposedly can't discuss the cases, though that didn't stop them from issuing prolix prejudicial press releases detailing the indictments of Thomas Drake and John Kiriakou. Former Justice Department spokesperson Matthew Miller – the self-appointed Justice Department flak for the war on whistleblowers – showed up to defend the Justice Department's Espionage Act prosecutions, and found little common ground from the panel or the audience. Rightfully so, considering Miller's comments ranged from uninformed to shameless Administration spin. A quick list of everything Miller got wrong:

1. Miller claimed that while Thomas Drake seems to be a whistleblower (something the Justice Department vehemently denied throughout the case), it is "hard to argue" that the other Espionage Act defendants, particularly John Kiriakou, are whistleblowers.

*Wrong. I explained the whistleblowing of the Espionage Act defendants in my recent Salon piece, but to summarize:

FBI translator Shamai Leibowitz made his disclosures because of all-too-real fear that Israel might strike nuclear facilities in Iran.

Drake disclosed unclassified information about a failed and wasteful (multi-billion dollar) NSA spy program that compromised Americans' privacy.

State Department arms expert Steven Kim is accused of leaking to Fox News that North Korea was planning to response to a U.N. Security Council resolution by setting off another nuclear test - surely of public interest to China and South Korea.

Sterling is accused of being a source of Jim Risen's book, the chapter on the botched CIA effort to sabotage the Iranian nuclear program.

Kiriakou blew the whistle on waterboarding and helped expose the CIA's torture program as policy rather than the actions of a few rogue agents.

2. Miller claimed that the case against Kiriakou is not about Kiriakou's disclosures on waterboarding.

*Wrong again. The entire case against Kiriakou stems from information obtained by attorneys defending Guantanamo detainees (the victims of torture) in an effort to identify their torturers - a no-brainer in an Article III court but in the not-quite-due-process land of military commissions, an immense challenge.

Moreover, the only difference between Kiriakou and the 22 other sources for the 2008 New York Times article for which Kiriakou allegedly gave information or the people who gave the Guantanamo defense team some 69 other names of alleged torturers, is that Kiriakou was the first CIA officer to call waterboarding torture - classic whistleblowing.

         3. Miller claimed that Kiriakou's conduct harmed or could harm national security because he allegedly leaked the name of a covert operative.

*I didn't get a chance to ask Miller the name of the covert operative Kiriakou supposedly "leaked," but if I had Miller would not have been able to answer becuase - as Thomas Drake pointed out to Miller during the Q & A - the name has never been released publicly. It appeared in a sealed Guantanamo filing. How exactly does it harm national security to have Guantanamo detainees' attorneys properly handling classified information in order to afford detainees a closer-to-fair trial?

         4. Miller also contended that in most cases whistleblowers should go to the Inspectors General or Congressional oversight committees.

*What Miller conveniently left out was the fact that NSA whistleblower Thomas Drake went to the House and Senate Intelligence Committees and to the Department of Defense Inspector General, only to have his protected whistleblowing disclosures used against him in an Espionage Act prosecution.

If Miller is going to continue doing the Justice Department's bidding, he ought to at least get his facts straight.

Jesselyn Radack is National Security & Human Rights Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization. This column originally appeared in her Daily Kos diary. 

Bradley Manning's attorney (David Coombs) requested that charges against Manning be dismissed because the prosecution had so badly bungled discovery obligations.

Josh Gerstein of Politico reported in detail:

At a hearing last month, prosecutors in the case against Pfc. Bradley Manning noted that they didn't receive the messages but could not explain why. Chief prosecutor Capt. Ashden Fein said at a hearing Thursday that the messages had been "blocked by a spam filter for security." However, it fell to defense attorney David Coombs to explain precisely why the e-mails about evidence issues in the Manning case never made it.

"Apparently, they were blocked because the word 'WikiLeaks' was somewhere in the e-mail," Coombs said.

The government's own WikiLeaks policies are now hampering the prosecution's work in the case against Manning. Yesterday's Manning hearing also revealed that the U.S. claims that Manning aided al-Qaeda by allegedly giving documents to WikiLeaks. What about the New York Times, which also posted the WikiLeaks documents? Neo-con Gabe Schoenfeld, who suggested using the Espionage Act to target news sources, which the Obama administration had done in record numbers, also believes that news organizations should be held criminally liable for alleged leaks of classified information.

Speaking of absurd WikiLeaks policies, I blogged yesterday about the State Department's attempt to fire whistleblower and author Peter Van Buren based on his linking – NOT leaking – to a Wikileaks document on his personal blog. Van Buren was on Democracy Now! this morning: