BREAKING: Obama's Record-Setting Leak Prosecutions
by Jesselyn Radack, Fri Jun 11, 2010
LINK

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 criminal 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.

Jesselyn Radack's diary

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.

James Goodale on a national Shield Law

June 11, 2010
Obama Takes a Hard Line Against Leaks to Press
By SCOTT SHANE, NY TIMES
LINK

WASHINGTON — Hired in 2001 by the National Security Agency to help it catch up with the e-mail and cellphone revolution, Thomas A. Drake became convinced that the government’s eavesdroppers were squandering hundreds of millions of dollars on failed programs while ignoring a promising alternative.

He 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.

So he contacted a reporter for The Baltimore Sun.

Today, because of that decision, Mr. Drake, 53, a veteran intelligence bureaucrat who collected early computers, faces years in prison on 10 felony charges involving the mishandling of classified information and obstruction of justice.

The indictment of Mr. Drake was the latest evidence that the Obama administration is proving more aggressive than the Bush administration in seeking to punish unauthorized leaks to the press.

In 17 months in office, President Obama has already outdone every previous president in pursuing leak prosecutions. His administration has taken actions that might have provoked sharp political criticism for his predecessor, George W. Bush, who was often in public fights with the press.

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.

Meanwhile, the Justice Department has renewed a subpoena in a case involving an alleged leak of classified information on a bungled attempt to disrupt Iran’s nuclear program that was described in “State of War,” a 2006 book by James Risen. The author is a reporter for The New York Times. And several press disclosures since Mr. Obama took office have been referred to the Justice Department for investigation, officials said, though it is uncertain whether they will result in criminal cases.

As secret programs proliferated after the 2001 terrorist attacks, Bush administration officials, led by Vice President Dick Cheney, were outspoken in denouncing press disclosures about the C.I.A.’s secret prisons and brutal interrogation techniques, and the security agency’s eavesdropping inside the United States without warrants.

In fact, Mr. Drake initially drew the attention of investigators because the government believed he might have been a source for the December 2005 article in The Times that revealed the wiretapping program.

Describing for the first time the scale of the Bush administration’s hunt for the sources of The Times article, former officials say 5 prosecutors and 25 F.B.I. agents were assigned to the case. The Maryland and Oregon homes of three other security agency employees and a Congressional aide were searched before investigators raided Mr. Drake’s suburban house in November 2007. By then, a series of articles by Siobhan Gorman in The Baltimore Sun had quoted N.S.A. insiders about the agency’s billion-dollar struggles to remake its lagging technology, and panicky intelligence bosses spoke of a “culture of leaking.”

Though the inquiries began under President Bush, it has fallen to Mr. Obama and his attorney general, Eric H. Holder Jr., to decide whether to prosecute. They have shown no hesitation, even though Mr. Drake is not accused of disclosing the N.S.A.’s most contentious program, that of eavesdropping without warrants.

The Drake case epitomizes the politically charged debate over secrecy and democracy in a capital where the watchdog press is an institution even older than the spy bureaucracy, and where every White House makes its own calculated disclosures of classified information to reporters.

Steven Aftergood, head of the project on government secrecy at the Federation of American Scientists, who has long tracked the uneasy commerce in secrets between government officials and the press, said Mr. Drake might have fallen afoul of a bipartisan sense in recent years that leaks have gotten out of hand and need to be deterred. By several accounts, Mr. Obama has been outraged by some leaks, too.

“I think this administration, like every other administration, is driven to distraction by leaking,” Mr. Aftergood said. “And Congress wants a few scalps, too. On a bipartisan basis, they want these prosecutions to proceed.”

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.

“The Baltimore Sun stories simply confirmed that the agency was ineptly managed in some respects,” said Matthew M. Aid, an intelligence historian and author of “The Secret Sentry,” a history of the N.S.A. Such revelations hardly damaged national security, Mr. Aid said.

Jesselyn Radack of the Government Accountability Project, a nonprofit group that defends whistle-blowers, said the Espionage Act, written in 1917 for the pursuit of spies, should not be used to punish those who expose government missteps. “What gets lost in the calculus is that there’s a huge public interest in the disclosure of waste, fraud and abuse,” Ms. Radack said. “Hiding it behind alleged classification is not acceptable.”

Yet the government asserts that Mr. Drake was brazen in mishandling and sharing the classified information he had sworn to protect. He is accused of taking secret N.S.A. reports home, setting up an encrypted e-mail account to send tips to Ms. Gorman, collecting more data for her from unwitting agency colleagues, and then obstructing justice by deleting and shredding documents.

Gabriel Schoenfeld, author of “Necessary Secrets,” a book proposing criminal penalties not just for leakers but for journalists who print classified material, said that whatever his intentions, Mr. Drake must be punished.

“The system is plagued by leaks,” said Mr. Schoenfeld, a senior fellow at the Hudson Institute, a conservative research organization. “When you catch someone, you should make an example of them.”

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.”

Though Mr. Obama began his presidency with a pledge of transparency, his aides have warned more recently of a crackdown on leakers. In a November speech, the top lawyer for the intelligence agencies, Robert S. Litt, decried “leaks of classified information that have caused specific and identifiable losses of intelligence capabilities.” He promised action “in the coming months.”

Prosecutions like those of Mr. Drake; the F.B.I. translator, Shamai Leibowitz; and potentially Specialist Bradley Manning, the Army intelligence analyst, who has not yet been charged, have only a handful of precedents in American history. Among them are the cases of Daniel Ellsberg, a Defense Department consultant who gave the Pentagon Papers to The Times in 1971, and Samuel L. Morison, a Navy analyst who passed satellite photographs to Jane’s Defense Weekly in 1984.

Under President Bush, no one was convicted for disclosing secrets directly to the press. But Lawrence A. Franklin, a Defense Department official, served 10 months of home detention for sharing classified information with officials of a pro-Israel lobbying group, and I. Lewis Libby Jr., a top aide to Mr. Cheney, was convicted of perjury for lying about his statements to journalists about an undercover C.I.A. officer, Valerie Plame Wilson.

The F.B.I. has opened about a dozen investigations a year in recent years of unauthorized disclosures of classified information, according to a bureau accounting to Congress in 2007.

But most such inquiries are swiftly dropped, usually because hundreds of government employees had access to the leaked information and identifying the source seems impossible. Often even a determined hunt fails to find the source, and agencies sometimes oppose prosecution for fear that even more secrets will be disclosed at a trial.

By Justice Department rules, investigators may seek to question a journalist about his sources only after exhausting other options and with the approval of the attorney general. Subpoenas have been issued for reporters roughly once a year over the last two decades, according to Justice Department statistics, but such actions are invariably fought by news organizations and spark political debate over the First Amendment.

The reporter in the Drake case, Ms. Gorman, who now works at The Wall Street Journal, was never contacted by the Justice Department, according to two people briefed on the investigation. With Mr. Drake’s own statements to the F.B.I. in five initial months of cooperation, along with his confiscated computers and documents, investigators believed they could prove their case without her. Prosecutors further simplified their task by choosing to charge Mr. Drake not with transferring classified material to Ms. Gorman but with a different part of the espionage statute: illegal “retention” of classified information.

An Air Force veteran who drove an electric car, Mr. Drake has long worked on the boundary between technology and management. After years as an N.S.A. contractor, he was hired as an employee and turned up for his first day of work on Sept. 11, 2001. His title at the time hints at the baffling layers of N.S.A. bureaucracy, with more than 30,000 employees at the Fort Meade, Md., headquarters alone: “Senior Change Leader/Chief, Change Leadership & Communications Office, Signals Intelligence Directorate.”

Chris Frappier, a close friend since high school in Vermont, described Mr. Drake then as fascinated by technology and international affairs, socially awkward, with “an incredible sense of duty and honor.”

When he read the indictment, said Mr. Frappier, now a legal investigator in Vermont, he recognized his old friend.

“It’s just so Tom,” Mr. Frappier said. “He saw something he thought was wrong, and he thought it had to be stopped.”

According to two former intelligence officials, Mr. Drake became a champion of ThinThread, a pilot technology program designed to filter the flood of telephone, e-mail and Web traffic that the N.S.A. collects. He believed it offered effective privacy protections for Americans, too.

But agency leaders rejected ThinThread and chose instead a rival program called Trailblazer, which was later judged an expensive failure and abandoned. Mr. Drake and some allies kept pressing the case for ThinThread but were rebuffed, according to former agency officials.

“It was a pretty sharp battle within the agency,” said a former senior intelligence official. “The ThinThread guys were a very vocal minority.”

One former N.S.A. consultant recalled “alarmist memos and e-mails” from Mr. Drake, including one that declared of the agency: “The place is almost completely corrupted.”

Mr. Drake, whom friends describe as a dogged, sometimes obsessive man, took his complaints about Thin Thread and other matters to a series of internal watchdogs. He developed a close relationship with intelligence committee staff members, including Diane S. Roark, who tracked the security agency for the House Intelligence Committee. She discussed with Mr. Drake the possibility of contacting Ms. Gorman, according to people who know Ms. Roark.

The subsequent investigation, which included a search of Ms. Roark’s house, devastated Mr. Drake, his wife — herself an N.S.A. contractor — and their teenage son.

“For Tom Drake, a man who loves his country and has devoted most of his life to serving it, this is particularly painful,” said his lawyer, James Wyda, the federal public defender for Maryland. “We feel that the government is wrong on both the facts alleged and the principles at stake in such a prosecution.”

Forced in 2008 out of his job at the National Defense University, where the security agency had assigned him, Mr. Drake took a teaching job at Strayer University. He lost that job after the indictment and now works at an Apple computer store. He spends his evenings, friends say, preparing his defense and pondering the problems of N.S.A., which still preoccupy him.

Wikileaks

Daniel Ellsberg, who gained fame when he leaked the Pentagon Papers in 1971 in hopes of ending the Vietnam War, told MSNBC's Dylan Ratigan on Friday that he not only sees a parallel between himself and the person who recently leaked a video of an assault by US forces on Iraqi civilians but also fears for the safety of Wikileaks founder Julian Assange, who published the video.

Army specialist Bradley Manning was recently arrested in the case, and according to reporter Philip Shenon, the Pentagon is "desperately" seeking Wikileaks founder Julian Assange in hopes of preventing further damaging revelations.

Noting that since his own prosecution under the Espionage Act "for revealing information to the American public" almost 40 years ago there had been only two other similar indictments prior to the current administration, Ellsberg stated angrily, "President Obama, who came in promising transparency in government and to end the excessive secrecy has totally violated that pledge. ... That's really not the kind of change I voted for when I voted for him."

Philip Shenon, who was appearing along with Ellsberg, told Ratigan that Assange "was supposed to appear this evening at a panel in Las Vegas ... but he apparently canceled on them at the last minute. ... He said last week at (a) New York gathering that he had been instructed by his lawyers not to return to the United States."

"I was supposed to do a dialogue with him at that conference," Ellsberg added, "and the explanation he used was that he understood that it was not safe for him to come to this country."
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"I think it's worth mentioning a very new and ominous development in our country," Ellsberg continued. "I think he would not be safe even physically, entirely, wherever he is. ... We have a president who has announced that he feels he has the right to use special operations operatives against anyone abroad that he thinks is associated with terrorism."

Recalling that he himself had been the intended target of a CIA hit squad in 1972, Ellsberg suggested, "As I look at Assange's case, their worry that he will reveal current threats, I would have to say, puts his well-being, his physical life, in some danger. And I say that with anguish. ... I think Assange would do well to keep his whereabouts unknown."

Video of the complete Dylan Ratigan segment with Daniel Ellsberg can be seen here.

May 20, 2010
Who Needs to Know?
By ALAN M. DERSHOWITZ
LINK

Governments try to keep secrets. The press tries to learn and publish them. The courts try to strike the appropriate balance between the public’s right to be protected against disclosures that might put it at risk, on the one hand, and the public’s right to know about secrets that might cause it to change governmental policies, on the other. It is a delicate balancing act, but an essential one in a democracy that must fight its wars with both secrecy and accountability.

In his aptly titled book, “Necessary Secrets,” Gabriel Schoenfeld, a senior fellow at the Hudson Institute, has presented a subtle and instructive brief challenging the right of the press to make unilateral decisions to “publish and let others perish,” as he puts it somewhat tendentiously or, as he quotes a newspaper editor, to publish “no matter the cost.”

No reasonable person can dispute the reality that there are “necessary secrets,” like the names of spies, the movement of troops, the contents of codes and ciphers, the location of satellites and the nature of secret weapons. Nor can any student of history doubt that there are unnecessary secrets, like old and useless information that remains classified by bureaucratic inertia. There is also information kept secret under the pretext of national security but really in order to protect the reputation or electability of government officials. And then there is the most interesting category of secrets — those that are genuinely designed to protect national security in the short run, but whose disclosure may well serve the national interest in the long run. (An example of this last category, at least with the benefit of hindsight, was the decision by The New York Times to withhold publication of the Kennedy administration’s imminent intention to invade the Bay of Pigs. Had it disclosed this information, the fiasco might have been called off, many lives saved and America’s reputation less tarnished.)

Schoenfeld is at his best when discussing this controversial genre — secrets whose disclosure would, in the view of the government, endanger national security, but whose disclosure, in the view of the press, might ultimately serve the national interest. The real issue is not whether such secrets should be published, since that question will often be a close one about which well-intentioned people will disagree. The real issue, as it often is in a democracy, is who should be entrusted to make this real-time decision.

The other difficult issue is not whether, but when to publish. In a democracy, there should be no permanent secrets, since history and accountability are paramount. The public must ultimately know everything its government has done in its name, but sometimes it is necessary to postpone publication until an immediate danger has passed, since in the modern world, there is no way of disclosing secrets to friends without also disclosing them to enemies.

Schoenfeld seems to acknowledge that The New York Times was right to publish the Pentagon Papers when it did, since these papers were largely an account of past mistakes leading up to a controversial war. But he makes a strong case that The Times was probably wrong in publishing “an article revealing the existence of a highly classified N.S.A. program designed to tap Al Qaeda phone calls and e-mails,” since disclosure of the program may well have caused Al Qaeda to change its methods of communication.

Schoenfeld is scrupulously honest in assessing the real costs and benefits of unilateral decisions by the press. It has become an article of faith among some civil liberty absolutists to deny that there are any costs associated with disclosing secrets like the National Security Agency’s high-tech program. This is part of a more general mantra of denial that covers other contentious issues as well: torture never produces actionable intelligence; capital punishment never deters; censorship never prevents harm; and a national identification system would never stop any terrorist. Each of these claims is highly questionable.

Anyone with an iota of historical knowledge must concede that torture sometimes works, as it did when Nazis tortured members of the French resistance into leading them to the hiding places of family members and friends. Recent studies suggest that capital punishment deters at least some criminals, as evidenced by the apparently higher costs of hiring a hit man in a state that executes than in one that doesn’t. Racist, sexist and homophobic speech can sometimes, as we have seen, incite violence against vulnerable victims. And a national identification system would almost certainly make it more difficult for some foreign terrorists to hide among our citizens. Constitutional rights are not cost-free.

To be sure, the arguments against torture, capital punishment, censorship and a national identification system are powerful. Still, honesty demands that the benefits of absolute adherence to a maximalist view of rights be weighed against their costs. Schoenfeld simply but persuasively demands an honest accounting by those who would make the case for publishing national security secrets in real time.

Schoenfeld skillfully presents a counterhistory of the famous cases of the 1960s, ’70s and ’80s that established the current Supreme Court jurisprudence governing the right to publish secrets. (As a young civil liberties lawyer, I participated, in a limited way, in some of those early cases on a pro bono basis.) He portrays Daniel Ellsberg (who purloined the Pentagon Papers), Philip Agee (who published the names of American spies) and The Progressive magazine (which published a blueprint for making an H-bomb), not as facilitators of democracy but as underminers of the public’s right to decide, through legislation, that some secrets must be kept. He reserves his greatest wrath, however, for The New York Times, because he expects more from what he calls the “patriotic press.”

Schoenfeld’s understandable focus on The Times and other newspapers plays down the emergence of the Internet and the competition it provides to the traditional print press, which is far more responsible for what it publishes than are Web writers. It is also subject to after-the-fact punishment, as the Supreme Court made clear when it refused to impose prior restraint on the publication of the Pentagon Papers. The Internet, on the other hand, includes anonymous “publishers” who are accountable to no one and yet have the power to reveal secrets with impunity, if not always with credibility.

Schoenfeld does not believe the press or Congress can be relied on to strike the appropriate balance. Surprisingly, and wrongly in my view, he places his greatest reliance on the exercise of prosecutorial discretion and in the common sense of juries. History has not vindicated this trust, especially in times of national turmoil and fear. For me, a better democratic answer is for the courts to demand that legislatures enact clear, precise and extremely limited prohibitions on the real-time disclosure of only the most necessary of secrets.

In vibrant democracies there will always be tensions between the government’s need to keep secrets and the news media’s need to reveal them. There will never be a perfect solution or an agreed-upon balance. This is as it should be. Constant tension between the government and the press is an essential requisite of our system of checks and balances.

Alan M. Dershowitz’s novel “The Trials of Zion” will be published this fall.