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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.
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United Arab Emirates' English-language newspaper The National ran a significant piece by Peter Muir criticizing 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.
If those responsible for torture - either committing the act, sanctioning it, providing dubious legal advice that encourages it or wilfully destroying evidence of it- are not held accountable, while those within the US government, like Kiriakou, who take a stand against it are persecuted, it may only be a matter of time before we once again see grinning soldiers shamelessly posing for souvenir photos with the shrink-wrapped remains of "enhanced interrogation" victims.
I've long pointed out that the government's war on whistleblowers (a.k.a. selective and record-breaking use of the Espionage Act against whistleblowers) has a tremendous chilling effect on potential national security whistleblowers, creates a terrible precedent for targeting and silencing jouranlists, and is a back-door way of creating an Official Secrets Act. Considering that a commentator for UAE's The National can grasp the dangerous consequences of letting the architects of torture off the hook while charging whistleblowers under the Espionage Act, the government ought to reconsider its attack on whistleblowers for one more reason.
There are dangers of the Obama administration's record-breaking six Espionage Act prosecutions beyond imprisonment for my clients like John Kiriakou and National Security Agency (NSA) whistleblower Thomas Drake (before the case against Drake imploded). In light of the decision not to prosecute torturers or the architects of torture, the message the U.S. government's leak hypocrisy sends is that employees who break the law can get away with it while those who help expose government law-breaking risk criminal prosecution.
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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.)
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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.
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Glenn Greenwald wrote yesterday about "secrecy creep" – the retaliation against whistleblowers that has crept down from the White House into Executive branch agencies.
Whistleblowers have always been subjected to retaliation, but the retaliation used to be focused on marginalizing the whistleblower, shifting or eliminating the whistleblower's job duties, firing her, or yanking her security clearance. Now, with the Obama administration's war on whistleblowers, whistleblower retaliation includes polygraphs, systematic monitoring of whistleblowers' electronic activities, and prosecution under the Espionage Act – even at Executive agencies beyond the intelligence community.
Intelligence community whistleblowers like former National Security Agency (NSA) officials Bill Binney and J. Kirk Wiebe were targeted with criminal investigation and subjected to armed FBI raids. Even more severe, whistleblowers like former NSA official Thomas Drake and former CIA officer John Kiriakou were indicted under the Espionage Act.
Now Executive branch agencies outside the intelligence community are using the secrecy and surveillance tactics to punish whistleblowers.
Greenwald provides concrete examples of the secrecy creep resulting in increased whistleblower retaliation:
 . . . McClatchy reported on a criminal investigation launched by the Inspector General (IG) of the National Reconnaissance Office, America’s secretive spy satellite agency, against the agency’s deputy director, Air Force Maj. Gen. Susan Mashiko. After Mashiko learned that four senior NRO officials whose identities she did not know reported to the IG “a series of allegations of malfeasant actions” by another NRO official relating to large contracts, Mashiko allegedly vowed: “I would like to find them and fire them.”
 It was not until 2011 that the Interior Department . . . hired . . . a hydrologist, Dr. Paul Houser, who was previously an associate professor in George Mason University’s Geography and Geoinformation Sciences Department.
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I've said since the collapse of the Espionage Act case against National Security Agency (NSA) whistleblower Thomas Drake that the case was built on sand and collapsed under the weight of the truth.
Since the case collapsed last summer, the more information revealed publicly about the government's evidence only confirms the flimsiness of the evidence used to prosecute Drake under the heavy-handed Espionage Act. I wrote yesterday on a Washington Post editorial asking "is the classification system dysfunctional?" after it was revealed that an Espionage Act count was based on a completely innocuous and obviously unclassified e-mail.
Now, Steven Aftergood of the Federation of American Scientists reports on the release of NSA's supposed justifications for the clearly incorrect classification designations and former G.W. Bush administration classification czar's J. William Leonard's scathing critique of the NSA's after-the-fact decisions. All of the allegedly-classified information found in Drake's home underwent a "forced classification review" after which NSA experts claimed it was classified.
Props to Aftergood for using FOIA to get the information publicly released. It should give any American pause to consider the fact that not only will the government consider such bland and unremarkable information as "classified," but use that banal information as the basis to prosecute a whistleblower under the Espionage Act.
Leonard's complaint articulates how damaging it is to the classification system to over-classify information and use that wrongly-classified information to aggressively prosecute a whistleblower under the Espionage Act:
Nonetheless, when deciding to apply the controls of the classification system to information, government officials are in-turn obligated to follow the standards set forth by the President in the governing executive order and not exceed its prohibitions and limitations. Failure to do so undermines the very integrity of the classification system and can be just as harmful, if not more so, than unauthorized disclosures of appropriately classified information.
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In its third editorial about the Espionage Act prosecution against National Security Agency (NSA) whistleblower Thomas Drake, the conservative Washington Post (WaPo) editorial board opines that the Drake case demonstrates how dysfunctional the classification system has become.
Just before the Justice Department's case against Drake collapsed in spectacular fashion days before trial last summer, WaPo ran two editorials critical of the prosecution (here and here).Then, former classification czar under G.W. Bush, J William Leonard, was slated to testify as a defense expert for Drake and called the case the most "deliberate and willful example of government officials improperly classifying a document," he had ever seen.
In the year since the prosecution fell apart, WaPo obtained one of the documents that formed the basis of an Espionage Act charge against Drake, which prompted WaPo to opine again - this time sarcastically - on the flimsy evidence the government used to threaten Drake with spending "the rest of his natural life" behind bars:
A document at the center of the Drake case was a classified e-mail summarizing an agency meeting. The e-mail was titled “What a Wonderful Success.” It is an innocuous, self-congratulatory message to a team for its presentation to the director, Gen. Keith Alexander. Two paragraphs were classified “secret.” Now that the e-mail has been released, everyone can see what was so sensitive. One of the paragraphs included the hush-hush fact — be careful if you finish reading this sentence — that Gen. Alexander left a conference room and greeted people in a lab who had worked to make sure the demonstration was a success.
Last summer, WaPo articulated the chilling effect the Drake case has on potential whistleblowers:
Mr. Drake’s prosecution smacks of overkill and could scare others with legitimate concerns about government programs from coming forward.