The DOJ's intimidation efforts are proving to be legally baseless, but that does not mean they are failing
(updated below: w/reaction from Jim Risen)
The Obama administration’s unprecedented war on whistleblowers suffered two serious and well-deserved defeats. The first occurred in the prosecution of NSA whistleblower Thomas Drake, who was accused of multiple acts of espionage, only for the DOJ to drop virtually all of the charges right before the trial was to begin and enter into a plea agreement for one minor misdemeanor. Today, The Washington Post – under the headline ”Judge blasts prosecution of alleged NSA leaker” — reports that the federal judge presiding over the case “harshly criticized U.S. prosecutors’ treatment of a former spy agency official accused of leaking classified material.”
As the transcript of Drake’s sentencing hearing published by Secrecy News reflects, Judge Richard Bennett of the U.S. District Court for Maryland was infuriated by two aspects of the DOJ’s conduct: (1) after the Bush DOJ executed a search warrant of Drake’s home in 2007, the Obama DOJ – 2 1/2 years later — finally indicted him, meaning he had to live with that cloud of criminal uncertainty over his head for that outrageously lengthy period of time; and (2) despite dropping all of the serious charges right before the trial was about to begin, the DOJ demanded that Drake be forced to pay a $50,000 fine as “a deterrent” (on top of the tens of thousands of dollars he spent in legal fees until he had no money left and had to use public defenders, as well as the fact that he was five years away from earning a federal pension when he was fired and ended up working at an Apple Computer store to support his family); to justify the requested fine, the prosecutor cited a $10,000 whistleblowing prize Drake was awarded earlier this year.
As for the first issue, the court condemned what it called the “extraordinary position taken by the government, probably unprecedented in this courthouse” of dropping the whole case on the eve of trial after “an extraordinary period of delay.” Judge Bennett added: ”I find that unconscionable. Unconscionable. It is at the very root of what this country was founded on against general warrants of the British.” As for the second issue, the court reviewed the difficult circumstances of Drake’s childhood (he was raised in poverty and sent himself to school with risky military service), his complete lack of any prior criminal record, and — most of all — the multiple ways in which the failed prosecution destroyed his life (“the financial devastation wrought upon this defendant”), and flatly refused to impose any fine at all, explaining: ”I’m not going to add to that in any way.”
What is most notable about this hearing is that the prosecutor candidly described not only his reasons for wanting a substantial fine imposed on Drake, but (without his saying so) also the motive for the Obama DOJ’s broader war on whistleblowers: namely, an attempt to send a “message” of intimidation to future would-be whistleblowers (click on image to enlarge):
Yet Judge Bennett — who, as a Bush 43 appointee, is presumably not overly sympathetic either to criminal defendants generally or national security leaks in particular — was having none of that. He first explained that he had never seen prosecutorial delays as extreme as the one in this case (accounted for by the fact that the Bush DOJ had apparently decided not to prosecute Drake, but the Obama DOJ then proceeded):
Judge Bennett then eloquently explained that the DOJ already destroyed Drake’s life, even though it ended up convicting him of nothing other than a minor misdemeanor:
That, of course, is the real point here. Drake’s leak involved no conceivable harm to national security, but did expose serious waste, corruption and possible illegality. When Drake was indicted back in April, 2010, I wrote at the time: ”the more I think about this, the more I think this might actually be one of the worst steps the Obama administration has taken yet, if not the single worst step — and that’s obviously saying a lot.” The effect of prosecuting Drake with multiple “espionage” counts, threatening him with decades in prison, and financially ruining him is clear: to frighten future whistleblowers into silence, and thus enable the government and the National Security State to do whatever it wants free of one of the only true checks it has. That’s what makes Obama’s War on Whistleblowing so pernicious.
The second defeat Obama’s whistleblower war suffered occurred in the prosecution of former CIA officer Jeffrey Sterling, who — like Drake — allegedly leaked information that exposed serious ineptitude but entailed no national security harm. As I wrote about several times, the Obama DOJ was seeking to force New York Timees reporter James Risen (to whom Sterling is accused of leaking) to testify about his source. But yesterday, U.S. District Court Judge Leonie Brinkema quashed the DOJ’s subpoena, ruling in a decision (not yet public because it’s now undergoing a classification review) that Risen need only testify to affirm the accuracy of what he wrote (which he had long ago offered to do).
These events demonstrate how legally baseless are the Obama DOJ’s intimidation efforts, yet their rejection in court does not mean they have not succeeded. As I wrote about in the context of the Risen subpoena:
But for anyone who is engaged in meaningful dissent from and challenge to government officials — the Jim Risens and other real investigative reporters, the Thomas Drakes and other whistleblowers, the WikiLeaks supporters, the Midwest peace activists — these prosecutions and these ever-expanding surveillance, detention and even assassination powers are inevitably intimidating. Regardless of how those powers are used or even whether they are, they will, as Risen put it, have “a chilling effect” on the exercise of core freedoms.
Despite being largely vindicated, Thomas Drake’s life was all but destroyed, while Jim Risen spent years facing the prospect that he’d have to go to prison in order not to reveal his source. That climate of fear aimed at those who expose government wrongdoing is the prime outcome, if not the prime goal, of the Obama administration’s war on whistleblowers.
* * * * *
Here is an issue that needs a lot more scrutiny: Craig Murray, the former British Ambassador to the U.N., and Justin Raimondo, both superbly examine the potential help received by accused Oslo attacker Anders Behring Breivik from the network of Muslim-hating far-right activists. I summarized one aspect of their excellent arguments here (Geller’s deletion of the reference to “stockpiling weapons” in Norway described there occurred this month, apparently in the last 24 hours). In an age where Muslims are swept into intense law enforcement investigations and even prosecutions for even the most tenuous links to those who commit violence, the seemingly pervasive indifference to Breivik’s possible support network is revealing indeed.
UPDATE: Risen emailed me the following this morning about his sweeping victory:
This is an important victory for the First Amendment, and for the freedom of the press in the United States. Some people don’t seem to understand the connection between the ability of journalists to protect their confidential sources and a free press. But if whistleblowers in government, in corporations, and elsewhere in society can be hounded and persecuted, and if the Justice Department is able to use its power to turn reporters into informants, then investigative journalism in America will surely wither and die. The First Amendment will have lost its meaning.
That seems to be not a bug, but a feature — the primary one — of the Obama war on whistleblowers.
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