The Washington Post used the Freedom of Information Act (FOIA) to obtain one of the documents that formed the Espionage Act case against National Security Agency (NSA) whistleblower Thomas Drake. 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.

Leonard’s views, outlined in an affidavit, got some support with the release of a memo that formed part of the evidence against Drake.

The once "classified" document (scare quotes around "classified" as none of the information that formed the basis of the Espionage Act counts against Drake was actually properly classified) is now public. Ellen Nakashima of WaPo reported on innocuous information in the document that formed the basis of an Espionage Act charge against Drake for allegedly retaining the document improperly.

Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, also received the declassified memo from the NSA and said its disclosure reinforced questions raised about the prosecution.

“It’s utterly innocuous and practically devoid of meaningful content,” he said of the memo in an interview. “The idea that someone risked decades of prison over this document is an indictment of the agency and its classification policy.”

Leonard echoed those concerns in an e-mail to WaPo:

Leonard, speaking generally, said the system for classifying information is “becoming dysfunctional” and “clearly lacks the ability to differentiate between trivial information and that which can truly damage our nation’s well-being.”

Attorney General Eric Holder recently complained in the wake of his congressional contempt citation – the first ever for an Attorney General – that Republicans are using him as a proxy for Obama in an election year.

From WaPo:

In his first interview since Thursday’s vote, Holder said lawmakers have used an investigation of a botched gun-tracking operation as a way to seek retribution against the Justice Department for its policies on a host of issues, including immigration, voting rights and gay marriage. He said the chairman of the committee leading the inquiry, Rep. Darrell Issa (R-Calif.), is engaging in political theater as the Justice Department tries to focus on public safety.

I agree that in the political theater of the contempt citation, Holder is being used as a proxy for Obama. However, Holder has done plenty in his tenure as Attorney General to upset both sides of the aisle, and ought to take some responsibility for the actions the Justice Department has taken under his watch.

Obama might have ordered the assassination of American citizen Anwar al-Awlaki without charge or trial, but it was Holder's Justice Department that drafted the legal memo "authorizing" the killing. It is also Holder's Justice Department that continually asserts absurd secrecy claims to keep the memo from the public and the drone program from court oversight.

Under Holder, the Justice Department has

• endorsed indefinite preventative detention and targeted assassination of Americans, 
• continued to use the state secrets privilege to shut down lawsuits challenging torture and extraordinary rendition, and
• maintained pro-secrecy positions in high-profile Freedom of Information Act suits.

The government is playing dumb in its public statements on the "leak hysteria" in Washington:

“We have tried more leak cases — brought more leak cases during the course of this administration than any other administration,” Mr. Holder told the Senate Judiciary Committee. “I was getting hammered by the left for that only two weeks ago. Now I’m getting hammered by the right for potentially not going after leaks. It makes for an interesting dynamic.”

Surely Attorney General Eric Holder knows the difference between high-level administration officials leaking to the media (or Hollywood!?!) for political gain, and whistleblowers disclosing government waste, fraud, abuse or illegality. But, Holder's obtuse statement deliberately obfuscates the administration's hypocritical policy on so-called "leaks." No doubt because the Justice Department has broken a record prosecuting whistleblowers, while ignoring high-level leaks for political gain.

Unfortunately many in the main stream media (MSM) have been more than willing to perpetuate the confusion by reporting that the Espionage Act prosecutions and pressure to go after high-level leaks are about the same types of disclosures.  

The MSM should recognize that the issue is not the need for more than six Espionage Act prosecutions, but for the Obama administration to stop the blatant hypocrisy of criminally prosecuting low and mid-level officials, while simultaneously feeding the media secrets that serve as pro-administration talking points.

Holder's whine about being called out on hypocrisy is almost as bad as the administration's double-speak on its war on whistleblowers, which essentially boils down to:  

The Espionage Act prosecutions were an accident, but we want credit for them.

Director of National Intelligence (DNI) James R. Clapper, Jr. thinks intelligence community (IC) employees should be like his grandchildren: seen but not heard. Unfortunately, that means his IC community "grandchildren" could witness government crimes, waste, fraud, abuse, or dangers to health and public safety, and never report them.

Intelligence community employees have no meaningful whistleblower protections. They are exempted from the Whistleblower Protection Act. IC Inspectors General are more often than not either absent or completely corrupted. And, congressional oversight is completely ineffective or complicit in wrongdoing. (Just look at Congress' complicity with the National Security Agency's (NSA) warrantless wiretapping scandal).

Yesterday, Clapper announced he is responding to the "leak hysteria" plaguing Washington with a new administrative crackdown for suspected "leakers." While Clapper's desire to stop unauthorized disclosures of information that could harm national security makes sense in the abstract, a better practical approach to stopping leaks would be to institute whistleblower protections, curb rampant overclassification (which all experts agree undermines legitimate secrets), and curtail the "authorized leaks" by "anonymous officials."

Clapper's new rules include requiring IC employees answer polygraph questions about revealing restricted information. Perhaps Clapper should start with putting himself and all of the high-level officials in the situation room during the Osama Bin Laden raid through a polygraph, as the Bin Laden raid is quite possibly the most discussed "covert operation" in American history.

Forgive my skepticism about these new "tools" to stop supposed "leaks," but it is based on how the Obama administration has approached suspected "leaks" using the existing tools. Despite the option of less-severe measures - both criminal and administrative - the Obama administration has used the heavy-handed Espionage Act to bring more prosecutions against so-called "leakers," who are usually whistleblowers, than all past presidents combined.

White collar criminal defense attorney Abbe Lowell published an insightful op-ed in theWashington Post about the Justice Department's bad choices in spending millions in taxpayer dollars prosecuting John Edwards and Roger Clemens. Lowell's conclusions are well-taken:

Another concern is how prosecutors brought these cases. The Justice Department chose not to prosecute or granted immunity to people for whom evidence had showed they had committed the real wrongdoing in order to get the person the government alleged was “higher up” in the scheme. . . . The lack of proportionality is breathtaking. . . .

(emphasis added).

Lowell also points to the fact that defendants must spend millions defending themselves.

Yet the cases Lowell discusses in his op-ed are against defendants (Roger Clemens and John Edwards) far more equipped that most people to weather being at the blunt end of a government prosecution. (Lowell is also representing State Department arms expert Stephen Kim, one of six people the Obama administration has charged under the Espionage Act). The whistleblowers the Justice Department has chosen to prosecute under the Espionage Act are less prepared for the bludgeon of the criminal justice system.

As for those who say that if the whistleblowers charged under the Espionage Act are innocent, they can show their innocence at trial, I ask, "Do you have an extra 1-3 million dollars to defend yourself?" That was the estimated cost of the defense for National Security Agency (NSA) whistleblower Thomas Drake. He was charged with ten felony counts, including five under the Espionage Act. The government's case collapsed in spectacular fashion days before trial, Drake pled a minor misdemeanor, and the judge lambasted the Justice Department at sentencing for putting Drake through "four years of hell." Here are just some of the costs of Drake's "four years of hell:"

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

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.