Obama’s Record-Setting Leak Prosecutions

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By Jesselyn Radack

According to the New York Times, Obama has already surpassed his secrecy-loving predecessor and every past president in prosecuting "leakers."

The problem is many so-called "leakers" are whistleblowers who attempted to protect this country by disclosing illegal conduct. What's worse for the public and the whistleblowers being criminally investigated, charged, or indicted, is that the perpetrators of the exposed illegal conduct are avoiding prosecution completely.

For a President who preaches - inconsistently at times - both "looking forward" and accountability, it is beyond hypocrisy that the Obama administration has now taken to looking backward to prosecute those former government officials who tried to expose the truth about government misconduct rather than those officials engaged in the misconduct.

The "leak" prosecutions mentioned in today's New York Times article (which include the prosecution of former NSA official Thomas Drake under a rarely used provision of the Espionage Act) are an obvious whistleblower deterrent:

Mr. Drake was charged in April; in May, an F.B.I. translator was sentenced to 20 months in prison for providing classified documents to a blogger; this week, the Pentagon confirmed the arrest of a 22-year-old Army intelligence analyst suspected of passing a classified video of an American military helicopter shooting Baghdad civilians to the Web site Wikileaks.org.

The Justice Department's response:

A spokesman for the Justice Department, Matthew A. Miller, said the Drake case was not intended to deter government employees from reporting problems. "Whistle-blowers are the key to many, many department investigations — we don’t retaliate against them, we encourage them," Mr. Miller said. "This indictment was brought on the merits, and nothing else."

What about the merits of prosecuting the government officials who authorized torture, or tortured detainees, or those that engaged in warrantless surveillance? It seems the only people from the Bush-Era that the Justice Department is interested in prosecuting are those that exposed the wrongdoing during the Bush-Era.

The Justice Department's vague statement that it "encourages whistleblowers" is belied by Drake's case:

[Drake] took his concerns everywhere inside the secret world: to his bosses, to the agency’s inspector general, to the Defense Department’s inspector general and to the Congressional intelligence committees. But he felt his message was not getting through.

Though he is charged under the Espionage Act, Mr. Drake appears to be a classic whistle-blower whose goal was to strengthen the N.S.A.’s ability to catch terrorists, not undermine it. His alleged revelations to Ms. Gorman focused not on the highly secret intelligence the security agency gathers but on what he viewed as its mistaken decisions on costly technology programs called Trailblazer, Turbulence and ThinThread.

This trend of prosecuting those who expose illegal behavior rather than those who engage in illegal behavior does nothing to encourage transparency, accountability or looking forward, three things the Obama administration is supposedly focusing on.

Jesselyn Radack is Homeland Security Director at the Government Accountability Project, the nation's leading whistleblower advocacy organization.

Hail to the whistleblowers James Denselow, guardian.co.uk, Whistleblowers like those at WikiLeaks make huge sacrifices and are a vital last resort to check the powers of government James Madison (drafter of the US first amendment) once wrote that "government, without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy; or perhaps both". This is certainly true of Afghanistan, where the US-led coalition has been able to avoid a true audit of the impact of its presence via tight control of the media combined with manipulated patriotism. To avoid greater tragedy in Afghanistan we may have to rely on a new generation of whistleblowers who are making huge personal sacrifices to challenge the official narrative. Julian Assange, founder of WikiLeaks, is well aware of the impact made by the film Collateral Murder, which featured US Apache gun camera footage of the killing of 12 Iraqi civilians. Since the arrest of one of his whistleblowers, Assange has been keeping a low profile but is preparing to release the footage of a US airstrike in Afghanistan that may have killed up to 145 civilians. Like Daniel Ellsberg before him, Assange may be the whistleblower that could help change the direction of the conflict. Such individuals represent a necessary last resort to check the powers of government. Ellsberg was once described as "the most dangerous man in America", yet his actions in publishing the Pentagon Papers were driven by his realisation that the greater danger was the fact that there were no longer effective checks and balances to a war in Vietnam that was entirely detached from reality. In his book, Secrets, Ellsberg describes how once, travelling back from Vietnam, defence secretary Robert McNamara assessed his visit by saying that "things aren't any better at all. That means the underlying situation is really worse". However, 10 minutes later in front of a press conference, he announced: "I'm glad to be able to tell you that we're showing great progress in every dimension of our effort." Ellsberg's decision to become a whistleblower was based on his answer to the question he asked himself: "How could we possibly have justified doing this?" It is likely that the departure of Britain's special envoy to Afghanistan, Sir Sherard Cowper-Coles, was prompted by a similar dilemma . Yet Cowper-Coles may embrace the very British syndrome of officials maintaining a dignified silence until years later when an autobiography is released one day describing how they knew it was a complete mess all along. Foreign Office lawyer Elizabeth Wilmshurst followed a similar pattern, resigning quietly after deciding that war would be illegal, before emerging much more forthrightly to speak at the Chilcot inquiry seven years later. Meanwhile US General Stanley McCrystal's honest description of the serious disunity at the head of Afghanistan operations may cost him his job, but beyond being a blow to the image of Barack Obama's conduct of the war is unlikely to change its central tenets, as the focus will remain on the general's naivety rather than the substance of his argument. Speaking truth to power is too important to be left to such outdated methods. We are all complicit in the actions of our democratically mandated government and as Ghandi once observed, "coercive power, legitimate or otherwise, depends on the co-operation, on the obedience and support, on the assent or at least passive tolerance of many people". Katharine Gun of GCHQ refused to tolerate the secret US spying on UN security council members in 2003, yet her whistleblowing cost her job and almost her freedom. Constitutional US lawyer Glenn Greenwald outlined recently how "the Obama administration's assault on whistleblowers is more extreme than any prior administration, including the Bush administration". Greenwald pointed out that the US security establishment is deeply concerned with how the release of footage highlighting civilian casualties damages people's trust in their government's prosecution of the war. This fear drives governments to throw the book at those individuals who raise their head above the parapet and speak out. US army specialist Bradley Manning, the rumoured source of the Apache video, has disappeared into US custody in Kuwait. WikiLeaks's Assange claims that he is now under tight surveillance and is afraid to travel to the US. Although these individuals can be easily smeared with accusations of treason and being unpatriotic, more often than not history vindicates their actions.

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