While the Bush administration treated whistleblowers unmercifully, the Obama administration has been far worse. It is actually prosecuting them, and doing so under the Espionage Act — one of the most serious charges that can be leveled against an American. The Espionage Act is an archaic World War I-era law meant to go after spies, not whistleblowers. Strangely, using it to target the media and sources is the brainchild of neo-conservative Gabriel Schoenfeld, who would have sources who disclose information to reporters, journalists who then write about it for newspapers, the newspapers that publish the information and the publisher itself all be held criminally liable.
Everyone wants to know why Obama, with his pledge to “protect whistleblowers,” would do this. After all, Obama’s transition agenda recognized that “[o]ften 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.” That’s not just a broken promise, it’s a complete reversal.
At first I thought Obama’s war on whistleblowers was meant to appease the intelligence establishment, which saw him as weak. I soon recognized this assault as a devious way to create bad precedent for going after journalists. All the Espionage Act cases involve allegations that the government employee “leaked” information (or retained information for the purpose of leaking it) to journalists.
The government’s spectacularly failed case against NSA whistleblower Tom Drake claimed that he allegedly retained allegedly classified information for the purpose of leaking it to Siobhan Gorman, then with the Baltimore Sun. It turned out that he disclosed unclassified information about a failed and wasteful (multi-billion dollar) NSA spy program that compromised Americans’ privacy. FBI translator Shamai Liebowitz pleaded guilty to leaking information to a blogger. Leibowitz made his disclosure because of an all-too-real fear that Israel might strike nuclear facilities in Iran, a move he saw as potentially disastrous. State Department arms expert Steven Kim is accused of leaking to Fox News that North Korea was planning to respond to a U.N. Security Council resolution by setting off another nuclear test — surely of public interest to China and South Korea. And, of course, Army Private Bradley Manning is accused of leaking to WikiLeaks.
In the most extreme proof yet that the war on whistleblowers is also a war on journalists, Glenn Greenwald’s explosive piece last night detailed Department of Homeland Security (DHS) repeatedly detaining and interrogating Oscar- and Emmy-nominated documentarian Laura Poitras, who has filmed three of my NSA clients for the third installment of her War on Terror trilogy. Not surprisingly, her latest film will be about the government’s ever-expanding secret domestic surveillance, NSA treating our nation like a foreign country for spying purposes, and the war on whistleblowers.
In yet other examples, for the Espionage Act prosecution of former CIA officer Jeffrey Sterling, the government has subpoenaed New York Times journalist James Risen three times to testify about whether Sterling was his source. The issue is on appeal in the 4th Circuit from a lower court ruling that Risen had a “qualified reporter’s privilege” not to do so. Going after the media is also evidenced by last week’s Indictment of CIA officer John Kiriakou, which is laced with thinly-veiled references to “Journalist A” (Matthew Cole of ABC News) and “Journalist B” (Scott Shane of the New York Times). “Journalist C” (Richard Esposito of ABC News), mentioned in the charges, mysteriously disappeared from the indictment.