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New legislation passing through Congress is meant to change all that. This past month the US Senate passed s.743, the Whistleblower Protection Enhancement Act, after over 12 years of lobbying and discussion. Among several reforming measures, the bill will allow disciplinary measures to be consigned to federal departments that retaliate against whistleblowers and reform non-disclosure agreements.
Organizers of May’s "Whistleblower Summit: A Civil & Human Rights Conference" in Washington, DC praised the new legislation, saying it is a step in the right direction against Obama’s “war on whistleblowers.”
However, one clause in the bill gives the Merit System Protection Board the right to refuse a jury trial to whistleblowers and victims of civil rights abuse. The right to a jury trial was earned in the 1964 Civil Rights Act and is seen as a strong tenet of civil rights in the US. This obstacle could bring the whole bill down in the House of Representatives.
John Kiriakou is the most recent American to be indicted for whistleblowing. The former Central Intelligence Agency (CIA) officer known for unveiling waterboarding to the public in a 2007 interview with ABC News faced 50 years in prison for disclosing the identity of a CIA interrogator to the media, three Espionage Act counts, and for lying to the CIA’s Publications Review Board. The information about waterboarding led to widespread condemnation of CIA torture tactics and forced Obama to release dozens of documents on George W. Bush-era interrogation methods shortly thereafter.
Kiriakou’s trial date has been set for November 26.
David Carr of the New York Times believes indictments under the Espionage Act are used to scare people away from speaking out. “The majority of the recent prosecutions seem to have everything to do with administrative secrecy and very little to do with national security,” he writes. “In case after case, the Espionage Act has been deployed as a kind of ad hoc Official Secrets Act, which is not a law that has ever found traction in America, a place where the people’s right to know is viewed as superseding the government’s right to hide its business.”
While Kiriakou was charged for speaking out about waterboarding, a practice Obama has repeatedly referred to as torture, no one who has actually taken part in waterboarding has ever been taken to court in the US.
Obama promised “a new era of openness” for whistleblowers on his first official day in office. He later said these promising things about federal secret tellers: “Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled.”
Instead of keeping this promise, federal whistleblowers like Thomas Drake have been exposed to ruthless court prosecutions. Drake was charged for leaking information to The Baltimore Sun about a National Security Agency spy program that cost Americans over a billion dollars, in addition to their privacy. Facing 35 years in prison and 10 felony counts, Drake’s case collapsed and he had to plead guilty to only one misdemeanor–the misuse of a government computer.
Drake was positive that the government made an example out of him, telling Antiwar.com: “The government convinced themselves I was a bad guy, an enemy of the state, and went after me with everything they had, seeking to destroy my life, my livelihood, and my person–the politics of personal destruction, while also engaging in abject, cut-throat character assassination, a complete fabrication and frame up.”
Another whistleblowing case, perhaps the biggest of all time, has also occurred on Obama’s watch. US soldier Bradley Manning was charged with 34 counts including “aiding the enemy” for leaking hundreds of thousands of diplomatic cables to Julian Assange at WikiLeaks. The current government says the leaks endangered national security, but supporters of Manning like Daniel Ellsberg, the famous whistleblower who in 1971 was the first to be prosecuted under the Espionage Act for leaking thePentagon Papers, call him a hero.
The accusations against whistleblowers are all part of the “criminalization of whistleblowing,” says Jesselyn Radack, director of national security and human rights with the Government Accountability Project. Radack knows this because she experienced it herself.
When working as a Legal Advisor at the US Justice Department, Radack advised her bosses not to interrogate (or torture) a terror suspect named John Walker Lindh in the early days of the invasion of Afghanistan. She soon found that not only had her warnings gone unheeded, but had “disappeared” altogether from the file. She subsequently wrote a book entitled TRAITOR: The Whistleblower and the ‘American Taliban’. Radack soon found herself under criminal investigation and penciled into the notorious “No-Fly” list.
After beating the charges, Radack decided to dedicate her life to defending whistleblowers in court so they would not have to suffer for speaking out like she did. She wrote on Salon.com that “the war on whistleblowers is also a war on journalists.”
Journalists whose careers and reputations depend on their ability to protect their sources are being targeted for writing the stories of whistleblowers according to Radack.
James Risen from The New York Times is another example of a journalist affected by the “war on whistleblowers”. He was asked to testify about whether information from his 2006 book, State of War, came from Jeffrey Sterling, another CIA officer accused of leaking classified information.
Risen, a Pulitzer Prize-winning journalist, refused to give up his sources, citing the First Amendment right to freedom of speech and of the press. Yet, even without Risen’s testimony, the government had access to “numerous telephone records, e-mail messages, computer files and testimony that strongly indicates that Sterling was Risen’s source.”
What was once kept private for the sake of keeping a source’s identity secret has been tossed out the window with floppy disks and the rotary phone in favour of a “high-tech war on leaks,” as Adam Liptak of The New York Times calls it. He quotes Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press recommended in his article: “For God’s sake, get off of e-mail, get off of your cellphone. Watch your credit cards. Watch your plane tickets. These guys in the National Security Association know everything.”
