Wednesday, June 22, 2011

Just Put Your Lips Together And . . . Get Indicted

My Administration is committed to creating an unprecedented level of openness in Government.  We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.  -- President Barack Obama

Jane Mayer, in a devastating article in The New Yorker, recently highlighted the Obama Administration's unprecedented attack on whistleblowers.  She described the case against Thomas Drake, a computer specialist who leaked information to a reporter, motivated by the patriotic desire to expose government waste in the National Security Agency.  Although Drake is not a spy, he was indicted for violating the Espionage Act and was looking at a possible  35-year sentence.

As Mayer put it, "the Obama Administration has pursued leak prosecutions with a surprising relentlessness."  Drake's case is one of five in which the government is using "the Espionage Act to press criminal charges" in alleged instances of national-security leaks, "more such prosecutions than have occurred in all previous Administrations combined."  As reported in the Times, these five include one case each against defendants from the National Security Agency , the C.I.A, the F.B.I., the military and the State Department.

The case against Drake recently fell apart, and last week he pleaded guilty to a minor charge and is unlikely to serve any time.  But the other four cases remain, including the case of Steven Kim, an arms expert who is charged, as another recent Times article reports, "not by aiding some foreign adversary, but by revealing classified information to a Fox News reporter."

Last month, the Justice Department subpoenaed New York Times reporter James Risen, to force his disclosure of a source who gave him information.  Jane Mayer explains that the case "involves a book that Risen wrote, “State of War,” in which he described a failed effort by the C.I.A. to sabotage Iran’s nuclear-weapons program. Jeffrey Sterling, a former C.I.A. officer, is facing trial on ten felony charges relating to the leak of the information."

Shamai Leibowitz is a former linguist for the FBI who was sentenced for 20 months in prison for leaking classified documents to a blogger.  After being sentenced, Leibowitz said that "this was a one-time mistake that happened to me when I worked at the FBI and saw things that I considered a violation of the law.”   His 20 month sentence, according to Politico, was the largest sentence ever handed out to a government employee accused of passing national security secrets to a member of the media.

And then, of course, there is Brandon Manning, who has been detained for over a year for allegedly leaking classified documents to WikiLeaks.  In his case, substantial allegations of inhumane treatment have been raised not only by the human rights community and progressive-minded journalists, but by P.J. Crowley, the State Department's chief spokesperson, who was then forced to resign.

It is a deeply disturbing irony that an Administration that came into power vowing to maintain transparency has, as a conservative political scientist quoted in Mayer's New Yorker article stated, "presided over the most draconian crackdown on leaks in our history—even more so than Nixon.”   What is going on here is what Yale law professor Jack Balkin contends is part of the dramatic shift since 9/11 towards the "normalization and legitimization of a national-surveilance state."  And so former Bush officials who authorized torture and illegal wiretapping go home to write their memoirs while government officials who attempt to expose waste and wrongdoing are prosecuted as spies and traitors.

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