Obama’s War on Whistleblowers

Obama signed both the Whistleblower Protection Enhancement Act, expanding whistleblower protections, in November 2012, and the National Defense Authorization Act (NDAA) furthering these protections in January 2013. His NDAA signing statement, however, undermines these protections, stating that those expanded protections “could be interpreted in a manner that would interfere with my authority to manage and direct executive branch officials.” Thus, in his signing statement, Obama promised to ignore expanded whistleblower protections if they conflicted with his power to “supervise, control, and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.”

Despite rhetoric to the contrary, the Obama administration is targeting government whistleblowers, having invoked the otherwise dormant Espionage Act of 1917 seven times. The Obama justice department has also used the Intelligence Identities Protection Act to obtain a conviction against Central Intelligence Agency (CIA) whistleblower John Kiriakou for exposing the waterboarding of prisoners, ironically making Kiriakou the first CIA official to be sentenced to prison in connection with the torture program. The justice department charged former National Security Agency senior executive Thomas Drake with espionage for exposing hundreds of millions of dollars of waste.

The highly visible prosecution of Bradley Manning has become what some may argue to be the most effective deterrent for government whistleblowers. Manning admitted to leaking troves of classified documents to WikiLeaks, but pleaded not guilty on counts of espionage.

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Why Is Obama Bashing a Whistleblower Law He Already Signed?

In a signing statement, the president criticized—and perhaps undermined—a law intended to protect whistleblowers.
By Dana Liebelson

Remember that scene in Mean Girls where Regina George, the blonde queen bee, tells a classmate, "I love your skirt, where did you get it?" but then says, "That is the ugliest fucking skirt I've ever seen," behind the other teen's back? President Barack Obama might have just pulled a similar stunt with the whistleblower community.

Obama signed a new law expanding whistleblower protections for some government employees in November, and on January 2, he signed the 2013 National Defense Authorization Act, which extends similar protections to defense contractors who expose waste and corruption. But the NDAA signing came with a caveat that blindsided the bill's backers and has some in the whistleblower community up in arms: In a signing statement, Obama wrote that the bill's whistleblowing protections "could be interpreted in a manner that would interfere with my authority to manage and direct executive branch officials," and he promised to ignore them if they conflicted with his power to "supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential."

"12 million contractors are going to be out in the cold because of this," warns Jesselyn Radack, the national security and human rights director for the Government Accountability Project and a former whistleblower. "Asking employees to go to their boss before going to Congress defeats the purpose of blowing the whistle." Radack adds that presidents "use signing statements to direct their subordinates on how to interpret and administer a law, and it can have substantial legal impact." She points to George W. Bush's signing statements on torture and the USA PATRIOT Act as examples, both of which allowed the former president to dodge parts of those laws.

"The language Obama used wasn't defined, it's completely ambiguous, and it's already led to confusion," says Angela Canterbury, director of public policy at the Project on Government Oversight. "I can imagine contractors claiming that disclosures made by whistleblowers are 'confidential,' and I think it could likely have a chilling effect."

Peter Van Buren, a former foreign service officer who wrote a book exposing contracting waste in Iraq (and was hassled by the State Department as a result) tells Mother Jones the signing statement "is merely another expression of [the Obama] administration's hostile policy toward all whistleblowers…It disappoints me, and devalues my own efforts to bring transparency to the government."

Obama didn't alert either Sen. Claire McCaskill (D-Mo.), who backed the protections, nor Rep. Jackie Speier (D-Calif.), one of the bill's sponsors, that the signing statement was coming, according to reports in the Huffington Post and the Washington Post. In a press release, Speier called Obama's signing statement "deeply disturbing," and warned it could potentially undo the language meant to protect contractor whistleblowers.

Obama has been accused of treating lawful whistleblowers like illegal leakers. His administration has wielded the World War I-era Espionage Act against more federal workers than all other presidents combined. Targets of Obama's crackdown have ranged from Thomas Drake, a former senior executive at the National Security Administration who helped expose hundreds of millions of dollars in waste on a government contract, and John Kiriakou, a former CIA agent who spoke out publicly about waterboarding and is facing prison time.

Other whistleblowers and whistleblower advocates are more optimistic—they're unhappy with the signing statement, but say they're glad they got new legal protections. "Obama's signing statement was rhetorical fluff," argues Tom Devine, the legal director of the Government Accountability Project (GAP). "Obama made no reference to restricting the law, or any type of enforcement against whistleblowers."

"It seems he is saying exactly what a good politician and president should say," argues Kathryn Bolkovac, who exposed human trafficking in Bosnia while serving on the UN Police Task Force (and inspired the movie The Whistleblower). "I am sure it will at times limit his authority, as it should when a conflict of interest may arise regarding executive officials who could potentially be involved, but I see that as a positive."

The new law could help whistleblowers like Bolkovac, who was fired for her disclosures, by creating safe channels for police officers stationed in United Nations peacekeeping areas who report on illegal activity. (Bolkvoac does acknowledge, however, that "private corporations like the one who employed me still have ways of intimidating their employees.") According to GAP, the law will affect about 12 million contractors and will work to protect the $1.9 trillion spent every year on outsourcing. Nonfederal workers can already file lawsuits on behalf of the government, but this law would permanently extend protections to all employees of defense contractors and subcontractors (and temporarily for other contractors, as part of a pilot program).

One thing the law doesn't do, however, is extend those same rights to contractors in the intelligence community, an exclusion that Devine calls "inexcusable."

Radack says that the continued exclusion of the intelligence community from whistleblower protections, in addition to the president's signing statement, demonstrates that "Obama is still giving whistleblowers baby pats on the head while screwing us on the other side."

But Canterbury says it's still "not definitively clear" yet what the impact of Obama's signing statement will be. "It's going to be incredibly important for Congress to conduct rigorous oversight to ensure the law is not weakened," she says.

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Kiriakou and Stuxnet: the danger of the still-escalating Obama whistleblower war
The only official punished for the illegal NSA program was the one who discussed it. The same is now true of torture
Glenn Greenwald
theguardian.com


The permanent US national security state has used extreme secrecy to shield its actions from democratic accountability ever since its creation after World War II. But those secrecy powers were dramatically escalated in the name of 9/11 and the War on Terror, such that most of what the US government now does of any significance is completely hidden from public knowledge. Two recent events - the sentencing last week of CIA torture whistleblower John Kirikaou to 30 months in prison and the invasive investigation to find the New York Times' source for its reporting on the US role in launching cyberwarfare at Iran - demonstrate how devoted the Obama administration is not only to maintaining, but increasing, these secrecy powers.

When WikiLeaks published hundreds of thousands of classified diplomatic cables in 2010, government defenders were quick to insist that most of those documents were banal and uninteresting. And that's true: most (though by no means all) of those cables contained nothing of significance. That, by itself, should have been a scandal. All of those documents were designated as "secret", making it a crime for government officials to reveal their contents - despite how insignificant most of it was. That revealed how the US government reflexively - really automatically - hides anything and everything it does behind this wall of secrecy: they have made it a felony to reveal even the most inconsequential and pedestrian information about its actions.

This is why whistleblowing - or, if you prefer, unauthorized leaks of classified information - has become so vital to preserving any residual amounts of transparency. Given how subservient the federal judiciary is to government secrecy claims, it is not hyperbole to describe unauthorized leaks as the only real avenue remaining for learning about what the US government does - particularly for discovering the bad acts it commits. That is why the Obama administration is waging an unprecedented war against it - a war that continually escalates - and it is why it is so threatening.

To understand the Obama White House's obsession with punishing leaks - as evidenced by its historically unprecedented war on whistleblowers - just consider how virtually every significant revelation of the bad acts of the US government over the last decade came from this process. Unauthorized leaks are how we learned about the Bush administration's use of torture, the NSA's illegal eavesdropping on Americans without the warrants required by the criminal law, the abuses at Abu Ghraib, the secret network of CIA "black sites" beyond the reach of law or human rights monitoring, the targeting by Obama of a US citizen for assassination without due process, the re-definition of "militant" to mean "any military age male in a strike zone", the video of a US Apache helicopter gunning down journalists and rescuers in Baghdad, the vastly under-counted civilians deaths caused by the war in Iraq, and the Obama administration's campaign to pressure Germany and Spain to cease criminal investigations of the US torture regime.

In light of this, it should not be difficult to understand why the Obama administration is so fixated on intimidating whistleblowers and going far beyond any prior administration - including those of the secrecy-obsessed Richard Nixon and George W Bush - to plug all leaks. It's because those methods are the only ones preventing the US government from doing whatever it wants in complete secrecy and without any accountability of any kind.

Silencing government sources is the key to disabling investigative journalism and a free press. That is why the New Yorker's Jane Mayer told whistleblowing advocate Jesselyn Radack last April: "when our sources are prosecuted, the news-gathering process is criminalized, so it's incumbent upon all journalists to speak up."

Indeed, if you talk to leading investigative journalists they will tell you that the Obama war on whistleblowers has succeeded in intimidating not only journalists' sources but also investigative journalists themselves. Just look at the way the DOJ has pursued and threatened with prison one of the most accomplished and institutionally protected investigative journalists in the country - James Risen - and it's easy to see why the small amount of real journalism done in the US, most driven by unauthorized leaks, is being severely impeded. This morning's Washington Post article on the DOJ's email snooping to find the NYT's Stuxnet source included this anonymous quote: "People are feeling less open to talking to reporters given this uptick. There is a definite chilling effect in government due to these investigations."

For authoritarians who view assertions of government power as inherently valid and government claims as inherently true, none of this will be bothersome. Under that mentality, if the government decrees that something shall be secret, then it should be secret, and anyone who defies that dictate should be punished as a felon - or even a traitor. That view is typically accompanied by the belief that we can and should trust our leaders to be good and do good even if they exercise power in the dark, so that transparency is not only unnecessary but undesirable.

But the most basic precepts of human nature, political science, and the American founding teach that power exercised in the dark will be inevitably abused. Secrecy is the linchpin of abuse of power. That's why those who wield political power are always driven to destroy methods of transparency. About this fact, Thomas Jefferson wrote in an 1804 letter to John Tyler [emphasis added]:

"Our first object should therefore be, to leave open to him all the avenues of truth. The most effectual hitherto found, is freedom of the press. It is therefore, the first shut up by those who fear the investigation of their actions."

About all that, Yale law professor David A Schultz observed: "For Jefferson, a free press was the tool of public criticism. It held public officials accountable, opening them up to the judgment of people who could decide whether the government was doing good or whether it had anything to hide. . . . A democratic and free society is dependent upon the media to inform."

There should be no doubt that destroying this method of transparency - not protection of legitimate national security secrets- is the primary effect, and almost certainly the intent, of this unprecedented war on whistleblowers. Just consider the revelations that have prompted the Obama DOJ's war on whistleblowers, whereby those who leak are not merely being prosecuted, but threatened with decades or even life in prison for "espionage" or "aiding the enemy".

Does anyone believe it would be better if we remained ignorant about the massive waste, corruption and illegality plaguing the NSA's secret domestic eavesdropping program (Thomas Drake); or the dangerously inept CIA effort to infiltrate the Iranian nuclear program but which ended up assisting that program (Jeffrey Sterling); or the overlooking of torture squads in Iraq, the gunning down of journalists and rescuers in Baghdad, or the pressure campaign to stop torture investigations in Spain and Germany (Bradley Manning); or the decision by Obama to wage cyberwar on Iran, which the Pentagon itself considers an act of war (current DOJ investigation)?

Like all of the Obama leak prosecutions - see here - none of those revelations resulted in any tangible harm, yet all revealed vital information about what our government was doing in secret. As long-time DC lawyer Abbe Lowell, who represents indicted whistleblower Stephen Kim, put it: what makes the Obama DOJ's prosecutions historically unique is that they "don't distinguish between bad people - people who spy for other governments, people who sell secrets for money - and people who are accused of having conversations and discussions". Not only doesn't it draw this distinction, but it is focused almost entirely on those who leak in order to expose wrongdoing and bring about transparency and accountability.

That is the primary impact of all of this. A Bloomberg report last October on this intimidation campaign summarized the objections this way: "the president's crackdown chills dissent, curtails a free press and betrays Obama's initial promise to 'usher in a new era of open government.'"

The Obama administration does not dislike leaks of classified information. To the contrary, it is a prolific exploiter of exactly those types of leaks - when they can be used to propagandize the citizenry to glorify the president's image as a tough guy, advance his political goals or produce a multi-million-dollar Hollywood film about his greatest conquest. Leaks are only objectionable when they undercut that propaganda by exposing government deceit, corruption and illegality.

Few events have vividly illustrated this actual goal as much as the lengthy prison sentence this week meted out to former CIA officer John Kiriakou. It's true that Kiriakou is not a pure anti-torture hero given that, in his first public disclosures, he made inaccurate claims about the efficacy of waterboarding. But he did also unequivocally condemn waterboarding and other methods as torture. And, as FAIR put it this week, whatever else is true: "The only person to do time for the CIA's torture policies appears to be a guy who spoke publicly about them, not any of the people who did the actual torturing."

Despite zero evidence of any harm from his disclosures, the federal judge presiding over his case - the reliably government-subservient US District Judge Leonie Brinkema - said she "would have given Kiriakou much more time if she could." As usual, the only real criminals in the government are those who expose or condemn its wrongdoing.

Exactly the same happened with revelations by the New York Times of the illegal Bush NSA warrantless eavesdropping program. None of the officials who eavesdropped on Americans without the warrants required by law were prosecuted. The telecoms that illegally cooperated were retroactively immunized from all legal accountability by the US Congress. The only person to suffer recriminations from that scandal was Thomas Tamm, the mid-level DOJ official who discovered the program and told the New York Times about it, and then had his life ruined with vindictive investigations.

This Obama whistleblower war has nothing to do with national security. It has nothing to do with punishing those who harm the country with espionage or treason.

It has everything to do with destroying those who expose high-level government wrongdoing. It is particularly devoted to preserving the government's ability to abuse its power in secret by intimidating and deterring future acts of whistleblowing and impeding investigative journalism. This Obama whistleblower war continues to escalate because it triggers no objections from Republicans (who always adore government secrecy) or Democrats (who always adore what Obama does), but most of all because it triggers so few objections from media outlets, which - at least in theory - suffer the most from what is being done.

UPDATE

Kevin Gosztola of Firedoglake this week interviewed Kiriakou and provides much more detail on the charges against him, including the overblown allegation that he leaked the name of one of the torturers to a journalist who then passed it on to the ACLU for filing in a classified court pleading. It's well worth reading the background of what was done to Kiriakou, who - whatever else you may think of his actions - was, as Gosztola writes, "the first member of the agency to publicly acknowledge that torture was official US policy under the administration of President George W. Bush".

Meanwhile, Trevor Timm of Electronic Frontier Foundation and the Freedom of the Press Foundation (of which I'm a Board Member) has more on the highly invasive and inappropriate tactics being used by the DOJ to try to root out the NYT's Stuxnet source.

UPDATE II

Speaking of the Obama administration's propensity to leak classified information for propagandistic and other political purposes, numerous Senators have indicated their intent to investigate whether the CIA and other officials passed classified information about the bin Laden raid to the makers of Zero Dark Thirty in order to influence the film. If you have any doubts about whether this happened, just consider what ZDT screenwriter Mark Boal just said in Time Magazine about this film - here - and decide for yourself.