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Home > Publications > Quill > Blowin’ the Whistle, Rollin’ the Dice


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Wednesday, October 5, 2011
Blowin’ the Whistle, Rollin’ the Dice

The Obama administration is ramping up prosecutions of federal whistle-blowers — all in the name of national security. Is it justified?

By Morgan Watkins

Jesselyn Radack has blown the whistle. She’s also been punished for it.

As an ethics adviser in the Justice Department in 2001, she advised the government not to interrogate John Walker Lindh without his counsel present. When she learned that the FBI had questioned the American found fighting for the Taliban in Afghanistan, she warned government officials not to use his confession for a criminal prosecution.

The government used it anyway.

Radack later received a harsh performance review and was told she may be happier at another job. These unfavorable responses surprised her, as she hadn’t received any prior negative feedback about her work.

In early 2002, she learned that the judge in the Lindh case had requested copies of all Justice Department correspondence relating to his interrogation. She discovered that the government had not turned over most of her correspondence warning against the actions taken in the case. Radack resigned from her job and blew the whistle. It didn’t take long for retaliation to come.

Radack was placed on the no-fly list. The government tried to get her disbarred in Washington, D.C., and Maryland. While the Maryland charges were dropped in 2005, the D.C. charges are still pending nearly a decade later. She also became a target of a federal criminal leak investigation.

“Why crucify me when one of their cases tanked because of their own misconduct?” said Radack, who serves as the national security and human rights director for the Government Accountability Project.

She had a rough experience as a whistle-blower during the George W. Bush administration. When Barack Obama was elected president in 2008, she thought things would change under his leadership.

As far as she can tell, it’s only gotten worse.

***

Since the early days of his 2008 campaign, Obama has expressed his support for whistle-blowers who speak up about corruption in both the public and private sectors.

When he completed a National Whistleblowers Center survey in May 2007, he checked yes on every box that corresponded to a statement supportive of whistle-blowers, including one that supported legal protection for those who reveal problems in government anti-terrorism efforts and Homeland Security.

But Sen. Obama’s promises and President Obama’s actions haven’t been in sync. The man who pledged to protect whistle-blowers is now accused of presiding over the harshest crackdown against them in presidential history.

The Obama administration has used the Espionage Act, a World War I-era measure meant to punish spies, in five criminal prosecutions against national security whistle-blowers — more cases than all previous presidential administrations combined have pursued.

National security whistle-blowers haven’t found any support from the executive branch in the legislative arena either. The administration pushed for removing national security employees from the protections provided by the Whistleblower Protection Enhancement Act, which passed in Congress before it was killed by an anonymous hold in December 2010.

But Obama’s hardline stance on national security whistle-blowers is balanced by a warmer reception toward private-sector employees who expose corruption.

Obama supported a measure that protects whistle-blowers who expose food safety problems and signed into law the Fraud Enforcement and Recovery Act of 2009, which provides more protection for employees who expose fraud among federal contractors.

While he’s done well in the private sector, Obama gets a failing grade in protecting federal employees who blow the whistle, said Stephen Kohn, executive director of the National Whistleblowers Center.

With a history of making pro-whistle-blower statements and a track record of prosecuting federal employees who expose corruption, Obama’s motives are unclear.

Radack said the administration appears to be sending a message to journalists and the whistle-blowers who leak information to them: Stay silent. While this may be one factor in the administration’s crackdown on whistle-blowing, there are other possibilities.

“I feel that Obama’s attack on whistle-blowers is actually part of a broader concern with preserving and bolstering the secrecy regime that was started under Bush,” Radack said. “I really see it as a kind of backdoor way of creating an official secrets act.”

Countries like the United Kingdom and New Zealand have official secrets acts that protect state information from disclosure, but the U.S. doesn’t have one. A tough stance against whistle-blowers could protect government secrets through intimidation, thereby eliminating the need to work with Congress to enact an actual law, she said.

Regardless of its motives, the executive branch has been criticized by media outlets and open government organizations in recent months for its high-profile whistle-blower prosecutions.

CROSSING THE LINE

Sometimes the government doesn’t toe the line — it flings itself across it.

In the case against Thomas Drake, it seemed to many that the Justice Department hadn’t just crossed the line but had run a few miles past it for good measure.

The federal government brought a 10-count indictment against Drake in April 2010 for allegedly violating the Espionage Act. He was accused not of leaking classified information but of willfully retaining top-secret documents in 2007 and taking them out of the National Security Agency headquarters with the intention of providing the information to a reporter.

The charges could have landed him in prison for up to 35 years, but ultimately the government couldn’t make them stick.

The first red flag was that Drake had not leaked any classified information. All the data he provided to then-Baltimore Sun reporter Siobhan Gorman, who later wrote a series on wasteful NSA practices, was unclassified.

Drake blew the whistle on an expensive NSA program called Trailblazer, which was developed to streamline the process of analyzing data for security threats even though another program called ThinThread could already perform those tasks.

Trailblazer was eventually abandoned in 2006, but by then it had gobbled up $1.2 billion in government money. Drake and other employees had tried to find solutions to the wasteful spending on Trailblazer by voicing their concerns through traditional channels, including informing the Pentagon inspector general.

When these efforts amounted to little change, Drake went to the Baltimore Sun to draw attention to the problem.

“The thing that’s really important in the Drake case ... is that it is a textbook example of his going through all of the existing channels to try to stay internal in his disclosures of wrongdoing,” said Danielle Brian, executive director of the Project on Government Oversight. “I thought this was as righteous a case as I’ve seen.”

As Drake approached his June 2011 court date, the case captured media headlines from outlets such as The Washington Post and Politico, and public disapproval began to build.

Days before Drake was to appear in court, the government dropped the bulk of the charges and reached a plea deal in which the former NSA employee pleaded guilty to a misdemeanor charge of unauthorized use of a government computer. The misdemeanor carries a sentence of up to one year in prison and a $100,000 fine, but its severity ranks far below that of the original charges.

Attention from news outlets like The New York Times may have encouraged the government to tone down its case.

“From my own experience, the media was the saving grace of my case,” said Radack, who served as one of Drake’s attorneys and approached New Yorker reporter Jane Mayer with the idea for a feature on Drake. “The media can have a bulletproofing effect.”

Radack had worked with Mayer before when she wrote a story on the John Walker Lindh case and credits the journalist with helping vindicate her as a whistle-blower. She hoped Mayer’s piece on Drake, which became one of the biggest stories about the case, might have a similar effect.

“I don’t know if this outcome would have happened without the media spotlight on this issue,” she said.

The collapse of the government’s prosecution against Drake came as yet another failure to criminalize such leaks under the Espionage Act. Similar charges also failed to wrangle a conviction for Daniel Ellsberg, who leaked the Pentagon Papers in the 1970s detailing America’s involvement in the Vietnam War.

“The Espionage Act is one of the most draconian pieces of legislation ever drafted. It’s a throwback to a time when there were no First Amendment rights recognized under law,” Kohn said.

It’s possible that the collapse of the Drake prosecution may lead to a change in the Obama administration’s strategy on handling national security whistle-blowers. But don’t count on it.

“The president has an obligation to stand up there and support accountability, which includes exposing wrongdoing by people he appointed and supports — and even exposing wrongdoing by himself,” Kohn said. “That’s the attitude change that’s nowhere in sight.”

THE WHISTLE-BLOWER SOURCE

People who reveal government corruption go by several names. Some call them whistle-blowers. Others know them as leakers. Sometimes, depending on the information they disclose, they might be considered traitors.

But whistle-blowers have another name, one that is sometimes ignored or forgotten. Whistle-blowers are sources.

“Journalists often rely on people within government agencies to bring problems to their attention,” said Mark Horvit, executive director of Investigative Reporters and Editors.

Some of the most important stories in journalism history were written because someone told a reporter about illegalities within the government. Deep Throat, later revealed to be W. Mark Felt of the FBI, turned over the Nixon administration’s darkest secrets to Bob Woodward and Carl Bernstein. Daniel Ellsberg provided information on U.S. conduct during the Vietnam War to The New York Times. Anonymous sources gave Times reporters information about the warrantless wiretapping authorized by the Bush administration.

Without people brave enough to bring such sensitive data to reporters, many instances of corruption would never have been made public.

“Without some documentation, without some proof, without somebody on the inside who can help that investigation along, a great story might not get printed or ever air,” Horvit said. “Most importantly, the problem that would have been pointed out by that story continues and everybody in society suffers.”

For employees who know about illegal government action, the media is sometimes the only recourse they have to reveal a problem to the public. There are federally sanctioned avenues for reporting corrupt behavior, such as speaking with an inspector general or congressional representative, but these don’t always work.

“It is the position of agencies that it is completely unnecessary to go to the media. Most whistle-blowers will disagree,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press.

The public can push for change only if they know that a corrupt practice exists, and reporters are able to get that information to them when no one else can.

When dealing with whistle-blowers, reporters who promise confidentiality are expected to honor their sources’ requests for anonymity.

If a journalist reveals a source after agreeing to keep his or her identity a secret, other people may be hesitant to share information with that reporter or news outlet.

While ethical journalists are expected to keep their promises, the government doesn’t always respect such confidentiality agreements. The Justice Department has subpoenaed New York Times reporter James Risen three times regarding a court case against ex-CIA officer Jeffrey Sterling, who is accused of giving Risen information on a botched operation that targeted Iran’s nuclear program. The initial subpoena occurred during the Bush administration, while the other two were filed during Obama’s presidency.

In his motion to quash the most recent subpoena, which was filed in June, Risen and his attorneys argued that his work is protected by the New York state reporter’s privilege to withhold source identities and related information. Several court decisions have upheld this privilege, which isn’t officially recognized by a federal law.

The journalist’s motion to quash stated that the most recent subpoena was “part of a continuing pattern of government harassment of and retaliation against Mr. Risen for reporting important stories that exposed excessive wrongdoing during the Bush administration.”

In addition to the information on the CIA operation that Risen published in his 2006 book “State of War: The Secret History of the CIA and the Bush Administration,” he also wrote a New York Times article in 2005 with fellow reporter Eric Lichtblau that revealed the National Security Agency’s Bush-authorized use of warrantless wiretapping. This piece was damaging to the administration’s reputation, and the motion argued that such work had made Risen a target for government oppression.

The Justice Department argued in its response to the motion that the 2010 and 2011 subpoenas have no connection to the articles cited as having upset the government during the Bush administration.

Regardless of whether Risen’s repeated subpoenas represent government harassment, they do demonstrate the bond between source and reporter — and in the Sterling case and many others, the bond between whistle-blower and journalist.

While Risen may be willing to risk jail time to protect his sources, that promise of confidentiality for whistle-blowers is getting harder for reporters to keep as technology continues to advance.

Although reporters like Risen still face subpoenas, Dalglish said the practice will probably taper off because technology now lets the government access reporters’ credit cards, phone records, airplane ticket purchases and other documents that can point toward people who may be the anonymous whistle-blowers mentioned in articles.

These electronic trails can be used to build circumstantial cases against alleged whistle-blowers.

For example, the government can access reporters’ phone records as long as it notifies them afterward within a specified time frame, Dalglish said. There is no such notification requirement for government employees, however, so the government could pull a suspected leaker’s information and see if he or she has called any reporters.

“The advice we’ve been giving reporters is: Do not use anything that can be electronically tracked,” Dalglish said. “Use manila envelopes. Meet sources on park benches.”

It’s as though secure methods for interviewing confidential sources have backtracked to the tried-and-true techniques used years before the Internet came along.

While Horvit agrees that the government’s ability to access phone records and other information could discourage whistle-blowers from approaching journalists, the practice of subpoenaing reporters will probably have a more immediate chilling effect.

“If the government has the ability to simply subpoena, sue, demand and get that information, and potential sources see this, it will have a huge dampening effect on information being given to the press,” he said.

There may also be a chilling effect on news organizations, which could be discouraged from pursuing controversial stories that could lead to costly legal proceedings.

“There still are many news organizations that are willing to go to court and fight the battle,” he said. “But there are fewer that can do that without giving it a thought.”

WIKILEAKS, OF COURSE

Pvt. Bradley Manning was arrested in July 2010, accused of leaking classified national security information to WikiLeaks, headed by Julian Assange. The information leaked included thousands of U.S. State Department cables and a “Collateral Murder” video that showed a 2007 Afghanistan shooting incident that left several dead, including two Reuters employees.

Media outlets reported that Manning was harshly treated in prison in the months following his arrest. He was reportedly kept in solitary confinement for 23 hours a day and was regularly forced to strip naked. This treatment was widely protested by advocacy groups, and Manning is no longer kept in solitary.

The government has also pursued a grand jury investigation of WikiLeaks.

“There is already a chilling effect created by what’s happened,” Brian said. “I think it’s really important for the journalism community and advocacy world … to really push back against the idea that a legitimate response to WikiLeaks is to crack down on whistle-blowers. It’s not.”

The WikiLeaks scandal emboldened intelligence agencies to push the Obama administration toward a tougher policy on national security leaks, she said.

The leaking of highly classified information to WikiLeaks raised security fears that are hard to ignore. One of the biggest questions is whether future leaks to the website can be stopped.

Creating a chilling effect may be one motivation for the strong stance the government has taken against WikiLeaks and the harsh treatment Manning received in jail, Kohn said. Although his prison conditions were eased in May, the message is clear: People should think twice before giving government information to WikiLeaks, because if they do, they risk becoming the next Bradley Manning — and enduring all the problems that come with that distinction.

THE SWINGING LEGACY

When it comes to whistle-blowing, the legacy of the Obama administration could swing either way. In the private sector, Obama has made strides in supporting whistle-blowers.

People with information on federal contractor malpractice now have better protection, thanks to the White House. The Obama administration supported the whistle-blower protection bill that almost missed becoming law in 2010, even though it did exempt national security employees from the measure’s protections.

While such actions show significant support for whistle-blowers, Obama’s track record is smudged by his prosecution of government employees who blow the whistle on agency corruption, especially within intelligence departments.

But the prosecution of whistle-blowers who leak information isn’t without some justification.

“I don’t think anyone’s arguing that every document, no matter how classified or sensitive, should be released to the media,” Horvit said.

Some information must be kept secret to protect U.S. national security. But although serious security matters are at stake in some cases, in others the government may be keeping information private simply because it might make a federal department or official look bad.

Government staffers need to feel safe enough to go to the media or another outlet to bring problems to the public’s attention without fear of retaliation, Horvit said.

Gabriel Schoenfeld, author of “Necessary Secrets: National Security, the Media, and the Rule of Law,” said government employees shouldn’t take it upon themselves to reveal classified information to the public.

“The word whistle-blower is a loaded word. It has approval of the phenomenon built into its meaning,” he said. “People elected by no one, chosen by no one shouldn’t get to make that decision (to leak information). People with security clearance alone shouldn’t be able to choose what’s in the public interest.”

Schoenfeld said the Obama administration’s so-called crackdown on whistle-blowers is likely a response to the problem of overleaking within the government. Obama may be committed to transparency, but leaks have become a government-wide problem that can’t be ignored.

The disparity between Obama’s rhetoric on transparency and his actions toward some whistle-blowers may be a result of a definition disagreement, he said.

The White House may see transparency as providing more information online at websites like Data.gov but consider whistle-blowing — especially in the national security sector — as another matter entirely. Kohn disagrees.

“Transparency is not accessing official government reports on the Internet. That’s just facilitating government PR,” Kohn said. “Transparency is the right of insiders with critical information to let the voters know what’s happening.

“Without the public’s right to know — not just the good news but the bad news, the scandals — democracy cannot function.”

The administration may leave behind a stellar legacy of making government information more easily accessible, but it could leave a darker mark on the status of the fourth estate in the U.S. if its punitive actions against whistle-blowers continue, according to Radack.

“The logical conclusion if you play this thing out is to scare off sources from going to journalists and scare off journalists from going after stories that expose government wrongdoing and illegality,” she said.

But taking a tough stance against government whistle-blowers probably won’t stop all employees from coming forward.

Jane Turner, a retired FBI special agent who was constructively discharged after speaking out against departmental misconduct, said whistle-blowers’ commitment to doing the right thing will, for some, trump fear.

Turner, who now serves as the director of the FBI oversight program at the National Whistleblowers Center, first spoke out against a practice among some FBI special agents in North Dakota who were mishandling child abuse cases to avoid having to properly investigate them.

She blew the whistle again after she was forced to transfer from Minot, N.D., to the FBI’s Minneapolis office. While there, she investigated a case involving a private Minnesota company’s theft of ground zero evidence.

After noticing a memento from ground zero sitting on a secretary’s desk at her FBI office, Turner investigated and discovered that FBI employees had illegally kept evidence from the Sept. 11 attacks in New York City as well. She also found that a retired FBI agent had provided information to the company she was investigating and that one or more agents had signed up people as informants without their knowledge.

After she voiced concerns to her superiors about these issues, she was fired from her job in 2001 after 25 years of service. While she prevailed in a Justice Department decision on her whistle-blower case, the FBI has appealed it. She and her lawyer, Kohn, have been dealing with the case for 10 years.

Despite the Obama administration’s prosecution of whistle-blowers, Turner believes people will continue to come forward with information — as she did — because of their sense of right and wrong.

“By trying to tighten the screws, they’re just going to embolden some whistle-blowers,” she said. “For a whistle-blower with ethics, their moral compass cannot take them down any other road than the road they’re on.”

Morgan Watkins was a summer 2011 Pulliam/Kilgore Freedom of Information intern for SPJ. She is a senior journalism major at the University of Florida.

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