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Both the Washington Post and New York Times reported on the House and Senate Intelligence Committees' recent outrage at the volume of "authorized, intentional leaks" of classified sources and methods from the Obama administration.
I have a particular interest in this issue as I represent half-a-dozen whistleblowers either being criminally prosecuted, investigated, or threatened with prosecution for making whistleblowing disclosures exposing government waste, fraud, abuse, mismanagement, illegalities, or a danger to health and public safety.
Both Democrats and Republicans on the Intelligence Committees are rightfully ticked off about the disparate treatment for so-called "leaks," especially considering the Obama administration has prosecuted more whistleblowers under the heavy-handed Espionage Act than all past presidents combined. Using the criminal justice system to target whistleblowers is damaging enough, but doing so while simultaneously "leaking" classified information that provides a political benefit is brazen hypocrisy.
Senator John McCain wrote on the Obama administration's hypocrisy:
“The fact that this administration would aggressively pursue leaks perpetrated by a 22-year-old Army private in the Wikileaks matter and former CIA employees in other leaks cases but apparently sanction leaks made by senior administration officials for political purposes is simply unacceptable,” Sen. McCain said.
The Intelligence Committees promised legislation to stop the flow of leaks:
Citing “the accelerating pace of such disclosures,” the two committees said in a joint statement that they planned to “act immediately” by bolstering legal restrictions and putting new pressure on the Obama administration to stanch the flow of secrets.
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Courtesy of Flickr user imjoshdotcomThe winners for this year's Hugh M. Hefner Foundation First Amendment Awards were announced today and – lo and behold – GAP’s own National Security & Human Rights Director Jesselyn Radack has been honored! Radack is co-winner in the government category with Thomas Drake, National Security Agency (NSA) whistleblower and GAP client. Radack and Drake are being acknowledged for their critical work exposing national security hypocrisy and abuses.
The Foundation has been giving out the First Amendment Awards since 1980, honoring those who have made contributions to the protections afforded under the First Amendment. Radack and Drake join an impressive rank of winners, including the likes of Walter Karp, Studs Terkel, Cecile Richards, Michael Moore, John Seigenthaler, Bill Maher, and Molly Ivins.
Drake, of course, blew the whistle on fraud, waste, and abuse within the NSA and was rewarded by being prosecuted under the Espionage Act, a tactic the Obama administration has now used six times against intelligence whistleblowers – more than all previous administrations combined. Radack, herself a Department of Justice whistleblower, represented Drake on whistleblower issues and played a vital role in winning his case in the court of public opinion.
This isn’t the first time Drake and Radack have been recognized for their work. They won the Sam Adams Award, presented by the Sam Adams Associates for Integrity in Intelligence late last year. Drake was also the winner of the 2011 Ridenhour Prize for Truth-Telling, largely considered the most prestigious award for whistleblowers.
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Whistleblowers like former National Security Agency (NSA) officials William Binney, J. Kirk Wiebe, and Thomas Drake have repeatedly warned us about a burgeoning surveillance state. At great personal risk considering Binney, Wiebe, and Drake were all targeted with a criminal investigation and Drake was prosecuted under the Espionage Act, Binney has publicly revealed massive domestic surveillance, which began under President George W. Bush in the aftermath of 9/11, and is continuing rampantly under President Obama. All three have written extensively and spoken out against NSA's domestic spying.
Nonetheless, yesterday, an apparently hard-of-hearing Senate panel reauthorized the constitutionally problematic FISA Amendments Act, which gutted long-standing safeguards for Americans' privacy in the Foreign Intelligence Surveillance Act. Considering how badly NSA has abused its surveillance powers since 9/11, it is infuriating that any Senator claiming to represent his or her citizenry would consider giving NSA more surveillance authority.
In fact, Senators Ron Wyden (D-OR) and Mark Udall (D-CO) - the same Senators who warned us about the Justice Department secret interpretation of another surveillance power: Section 215 of the (un)PATRIOT Act - objected to the re-authorization because NSA refused to give them a clear answer to a simple question: "How many innocent Americans is the NSA monitoring?" WaPo reported:
Sens. Ron Wyden (D-Ore.) and Mark Udall (D-Colo.) opposed the extension on civil liberties grounds. Wyden, concerned that the provision allows innocent Americans’ e-mails and phone calls to be monitored without a warrant, has asked the administration to disclose how many Americans have had their communications monitored under the law.
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The Washington Post reports:
The Air Force said Monday that it had fined the former commander of the Dover Air Force Base mortuary $7,000 and suspended his top deputy for 20 days without pay for retaliating against whistleblowers, but it allowed both men to keep their jobs.
The punishment came in response to an independent federal investigation that concluded the mortuary’s leadership had wrongfully tried to fire two subordinates after they reported missing body parts, lax management and other problems at the base that handles America’s war dead.
This is an encouraging result, but unfortunately it is far from typical. These officials did not receive discipline until after the revitalized Office of Special Counsel launched an investigation and found "gross mismanagement" at Dover
after whistleblowers reported horror stories of lost body parts, shoddy inventory controls and lax supervision.
The OSC also found that the supervisors had retaliated against the whistleblowers and
tried to fire two of the whistleblowers and placed others on suspension and indefinite leave.
Beyond OSC's hard-hitting investigation, aggressive main-stream-media coverage (largely from WaPo) spotlighted the wrongdoers even more, and members of Congress and the Secretary of Defense himself got involved in urging for accountability for the retaliating officials:
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First Amendment written on the front of the Newseum in Washington, DCEvents of just last week reveal a full-on assault on the First Amendment. Since it seems our government has forgotten, the First Amendment reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
There are no exceptions in the text, but in practice, more and more often our government only applies the First Amendment when convenient.
"Free Exercise of Religion" – EXCEPT for Muslims. Last week a Muslim-American toddler was removed from an airplane for being on the no-fly list. And this is just one of many recent policies unjustly targeting Muslim-Americans, from racist law enforcement training materials, to surveillance in Mosques, to prosecution under material support for terrorism laws. Even the New York Times has published commentary on the "Separate Justice System" for Muslims.
"Freedom of Association" – EXCEPT with dissenters, as evidenced by the Storm Trooper-esque police force that literally beat back peaceful protesters at Chicago's NATO meeting:
Some among the hundreds of officers repeatedly struck protesters with police batons
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The government's not ticked that the Underwear Bomber II ("undie-bomber") plot got out, they're just pissed about the sputtering, messy, and misleading way in which it got out.
The National Journal has a piece on how "New FBI Probe of Bomb Plot Highlights Administration's Tough Stance on Leaks." As evidence of Obama's crackdown on leakers--which, until now, has been primarily a war on whistleblowers--it offers the fact that the FBI has launched a criminal probe to identify the government officials who leaked the undie-bomb plot as
the latest indication of the Obama administration's unrelenting push to find and punish those sharing classified information with the media.
But I distinguish this "leak," which appears to have come from the administration for political gain, from those by whistleblowers trying to expose government wrongdoing--some of whom are my clients mentioned in the National Journal article. In the case of the undie-bomber, the leak appears to be government self-aggrandizement--not a government employee trying to disclose evidence of wrongdoing--at the expense of sources, methods and possibly an undercover intelligence agent's identity.
In the initial Associated Press version (which turns out not to have been the original since the L.A. Times did an earlier version), the Underwear Bomber II ("undie-bomber") plot was initially spun as
[t]he CIA thwarting an ambitious plot by al-Qaeda's affiliate in Yemen [AQAP] to destroy a U.S.-bound airliner using a bomb with a sophisticated new design around the one-year anniversary of the killing of Osama bin Laden . . . The would-be suicide bomber, based in Yemen, had not yet picked a target or bought a plane ticket when the CIA stepped in and seized the bomb, officials said. It's not immediately clear what happened to the alleged bomber.
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National Security Agency (NSA) whistleblowers Thomas Drake, Bill Binney, J. Kirk Wiebe, Edward Loomis, and Diane Roark have been through enough. They were targeted with a federal criminal investigation and subjected to armed FBI raids in July 2007. Binney had a gun pointed to his head as he stepped out of the shower. Drake has the dubious distinction of being the fourth person in U.S. history (and first by the Obama administration) indicted under the Espionage Act for alleged mishandling of classified information.
They have since been forced to sue NSA in an attempt to recoup property the government took in 2007. First, NSA claimed it would take an inordinately long time to perform the "arduous process" of reviewing the seized materials for classified information. (A brief pause to consider the ridiculousness of our nation's massive spy agency needing extra time to go through a few hard drives it has had for over four years). Perhaps the difficulty came because NSA's process involved essentially "word searching" the computers for key terms like "NSA" and "TOP SECRET" to find supposedly classified information.
When the Court tired of NSA's excuses and ordered NSA to actually respond to the whistleblowers' lawsuit, NSA moved on May 11th to dismiss the lawsuit claiming that all the property NSA still has is classified.
NSA's latest claims of secrecy are especially incredible considering NSA couldn't find a single shred of classified information in Drake's home in order to make their Espionage Act case against him stick. The case collapsed in spectacular fashion days before trial when the government dropped all felony charges in exchange for Drake pleading to a minor misdemeanor not involving classified information. Bush's former classification czar (J. William Leonard) said about the Drake case that he had never seen a "more deliberate and willful example of government officials improperly classifying a document." Yet, NSA bizarrely continues to stubbornly claim that there is classified information on Drake's computers.