CERDAFIED - When Obama was pouring on the syrup of his campaign promises, I asked myself if his promises were actually achievable. Blaming the other party for failed achievements is as common as the penny. But sometimes a leader can be so dynamic that we dare to hope. So when he promised to “usher in a new era of open government”, I was looking for evidence of that effort.
Instead of openness, our President has the dubious distinction of prosecuting more government officials than all his predecessors combined for alleged leaks under the World War I-era Espionage Act. Our attorney general, Eric Holder, has indiacted six individuals under this spy law, sending out a clear message. A message that dissent would not be tolerated, and that free press is under attack. One more message is all but certain. The government has a lot to hide.
John Kiriakou, a former CIA officer, was accused of leaking the identity of a covert operative
in a terrorist detention program to a reporter. He pled guilty in federal court in Alexandria, Va., avoiding a trial on espionage and obstruction of justice charges. See Kiriakou Plea Agreement
In this case, the Justice Departments claims camouflage the greater truth. Kiriakou spoke to a reporter regarding suspicions that the CIA tortured detainees at Guantanamo. It is alleged, that Kiriakou identified the CIA officers in photographs of Guantanamo abuse, and that the information was forwarded to a Guantanamo legal team who sought to have the detainees identify which CIA officials participated in their renditions and torture and have them brought to justice.
Which crime is of greater importance: Revealing a criminal act…or participating in a criminal act? Only the person who revealed it was prosecuted.
Thomas Drake, a senior National Security Agency employee, was prosecuted in 2010 by Obama’s Justice Department under the Act. Drake faced 10 felony counts, accused of sharing classified information with a Baltimore Sun reporter, revealing inefficiencies and cost over-runs in an NSA surveillance program that had been abandoned. He agreed to plead guilty to a misdemeanor, after the case against him crumbled. Drake was adamant that he never handed over any classified information yet he faced 35 years in jail if convicted.
Stephen J. Kim, an intelligence analyst specializing in North Korea was also charged under the Act. Kim was indicted by a grand jury on counts of disclosing classified information to reporter James Rosen of Fox News regarding North Korea’s nuclear weapons program and making false statements to the FBI. (U.S. v. Kim, 10cr00225, U.S. District Court for the District of Columbia (Washington).
Shamai Leibowitz, a FBI linguist, was also indicted under the act and pled guilty. He was sentenced to 20 months in prison for providing transcripts of government wiretaps pertaining to the Israeli embassy in Washington to a blogger.
In another case, Bradley Manning, U.S. Army private, was accused of sending documents to the WikiLeaks website. He faces the charge of ‘aiding the enemy,’” by the Defense Department, a crime punishable by death. Technically, it is similar to the espionage Act. He returned to court on October 29th for a motion hearing to dismiss all charges for lack of a speedy trial. As he nears his 900th day behind bars at Quantico, his prolonged confinement is already punitive. He faces court-martial as well.
While the Justice Department claims that they do not target “whistle-blowers”, I wouldn’t bet my lunch money on it. They may tolerate you reporting waste, fraud or abuse through official channels, however, making that disclosure to the media may cost you your freedom, your reputation and empty your wallet defending yourself.
Obama issued a policy directive to executive- branch agencies. He extended whistle-blower protections to national security and intelligence employees. Previously, they weren’t included in the Whistleblower Protection Enhancement Act that passed the US House on Oct. 10, and now awaits Senate approval.
In the Article, “The Criminalization of Whistleblowing” the authors Jesselyn Radack & Kathleen McClellan stated that the current Whistleblower Protection Act is “a sham”. “Enacted with the best of intentions, it has become a trap that rubberstamps almost any retaliation. The law was supposed to protect federal employees who expose fraud and misconduct from retaliation. But over the years, these protections have been completely undermined.
“One loophole gives the government the absolute right to strip employees of their security clearances and ﬁ re them, without judicial review. Another bars employees of the National Security Agency and the Central Intelligence Agency from any coverage under the law. And Congress has barred national security whistle-blowers who are fired for exposing wrong doing from obtaining protection in federal court.”
Elizabeth Goitein, co-director of the Brennan Center of Justice’s Liberty and National Security Program, said it “doesn’t include media representatives within the universe of people to whom the whistle-blower can make the disclosure.” Thus it gives Obama the opportunity to pursue prosecutions of intelligence employees who talk to the press.
Why would someone reveal waste, fraud, abuse, and criminal activity to the media? To protect the public interest, to produce public pressure in order to insure changes, to keep the process open and transparent, to prevent retaliation, to avoid the “complaint chain of command” where the abuse may have occurred, and to prevent it from being swept under the carpet.
The Obama administration faces accusations of anonymously releasing sensitive information for its own political purposes; disclosing operational details of the raid and the death of Osama Bin Laden and attempting to disrupt Iran’s nuclear weapons program.
Presidential hopeful Mitt Romney called for an independent investigation of these leaks. “Obama appointees, who are accountable to President Obama’s attorney general, should not be responsible for investigating leaks coming from the Obama White House,” Romney said.
Despite Obama’s promise of an open government, the US Denied More Than 300,000 Information Requests in One Year.
You can thank the ever growing presence of “Big Brother” under the Obama administration and new technology for these prosecutions. They can track the origins of leaks through emails and phone records without warrants. While most American citizens understand the necessity of the government keeping secrets as it pertains to undercover operatives, troop movements and battle plans, nuclear schematics, and diplomatic correspondence, they draw the line when it comes to fraud, waste, abuse, and illegal activities.
Abbe Lowell, attorney for Stephen J. Kim, said, “There’s a problem with prosecutions that don’t distinguish between bad people -- people who spy for other governments, people who sell secrets for money -- and people who are accused of having conversations and discussions.”
Jesselyn Radack, a lawyer with the Government Accountability Project, defended two individuals prosecuted under the law. “It became abundantly clear the more people were indicted, when you read their indictments, that this was a way to create really terrible precedent for ultimately going after journalists.” She said.
James Rise, was subpoenaed to testify at the trial of Jeffrey Sterling, a former CIA officer who allegedly disclosed information about Iran’s nuclear program. The Pulitzer Prize winning writer for the New York Times has fought the subpoena through his attorneys, defending journalists’ role in serving the public interest.
US District Judge Richard Bennett said, according to a court transcript of Drake’s case, “I find it extraordinary in this case for an individual’s home to be searched in November of 2008, for the government to have no explanation for a two-year delay, not a two and a half year delay, for him to be indicted in April of 2010, and then over a year later, on the eve of the trial, in June of 2011, the government says, whoops, we dropped the whole case.”
I think Drake summed it up best, “The two biggest scandals of the Bush administration in terms of constitutional violations was the use of torture, and renditions, and secret surveillance -- and the only two people to date who have been charged in connection with those scandals are myself and John Kiriakou. That should tell you something about how hard the Obama administration is going to protect those programs.”
For more information:
Jesselyn Radack & Tom Drake, A Surprising War on Leaks Under Obama, PHIL. INQ., Aug. 1, 2011.
David Carr,Blurred Line Between Espionage and Truth, N.Y. TIMES, Feb. 27, 2012.
(Lisa Cerda is a contributor to CityWatch, a community activist, Chair of Tarzana Residents Against Poorly Planned Development, VP of Community Rights Foundation of LA, Tarzana Property Owners Association board member, and former Tarzana Neighborhood Council board member.) –cw