[Glenn Greenwald is on vacation this week and three writers will be filling in for him]

By Jesselyn Radack

Today, I’m not writing about the Espionage Act being used to chill journalists and whistleblowers, but something equally as troubling: the assault on whistleblowers’ First Amendment rights, illustrated by the creepy case of Peter Van Buren.

Van Buren is a Foreign Service Officer with the State Department who wrote a book critical of U.S. reconstruction projects in Iraq, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People (Metropolitan Books 2011). He also maintains a personal blog at www.wemeantwell.com. A 23-year veteran of the State Department, Mr. Van Buren began to experience a series of adverse personnel actions a month before the publication of his book, which are ongoing today. These actions include suspension of his security clearance, confiscation of his Diplomatic Passport, being placed on administrative leave, being banned from the State Department building, losing access to his State Department computer, and being reassigned to a makeshift telework position better suited for a high schooler.

The State Department cleared Mr. Van Buren’s book by default because State exceeded its own 30-day deadline by nearly a year. Now the State Department is retaliating against him viciously for his book by taking adverse personnel actions — ostensibly based on not seeking pre-publication review for his blogs and live media appearances, done on his personal time — which are being used as a pretext to punish him for his book.

Even more disturbingly, the State Department admits that it is actively monitoring Mr. Van Buren’s blogs, Tweets and Facebook updates that he posts during his private time on his personal home computer.

Read that sentence again to absorb its full impact.

All government employees should be alarmed by this. Peter Van Buren’s book dovetailed with WikiLeaks’ bursting onto the world scene, and the government’s assault on whistleblowers with the full force of the entire Executive branch.

The WikiLeaks Edicts Transmogrify into Censorship

This slippery slope, which has now turned into a sheet of ice, began with the State Department announcement on November 26, 2010, that Department officials are authorized to view WikiLeaks documents for “legitimate work reasons . . . using either the Department’s unclassified computer network (OpenNet) and associated peripheral devices or home computers.” No problem there.

But less than three weeks later, State almost completely reversed itself, instructing the Directors of the Bureau of Consular Affairs/Passport Services (CA/PPT)—whose self-described mission is to “contribute significantly to the USG goal of promoting international exchange and understanding . . . [and] to help American citizens engage the world”—that “PPT employees shall not access any classified documents, including ‘Wikileaks documents’, during business hours or on their personal time.” (Scare quotes in original.)

A year later, Mr. Van Buren received his very own, personalized Orwellian directive from the State Department: “[Y]ou must comply fully with applicable policies and regulations regarding official clearance of public speeches, writings and teaching materials, including blogs, Tweets and other communications via social media, on matters of official concern, whether prepared in an official or private capacity.”

As a former government employee who was subject to horrible surveillance and monitoring for blowing the whistle (described in my new book for which Glenn Greenwald wrote the Foreword, I find it outrageous that a public servant is being told that his personal blogs, Tweets, and Facebook updates done on his own time in his personal capacity must go through pre-publication review. Moreover, in Mr. Van Buren’s case, this special pre-clearance requirement is being applied only to him and to things not capable of pre-publication review, such as live radio broadcasts.

These actions are a transparent attempt to retaliate against Mr. Van Buren for his book—by trying to impose bureaucratic and constitutionally-questionable prior restraints on his blogs and media interviews (even though the latter have been live), evidenced by the facts that 1) Mr. Van Buren is being subject to disparate treatment (hundreds of State Department blogs flow out onto the Internet uncleared); 2) the State Department links to uncleared blogs it likes; 3) none of Mr. Van Buren’s writing or speaking has contained classified orpersonally identifiable information; 4) all his written works (including his book) contain the State Department disclaimer that they do not represent the views of the government; and 5) he has never misrepresented himself as an official spokesman for the State Department (instead, he speaks in the first person and uses bland designators such as “Author”). Mr. Van Buren’s style of writing and speaking is clearly identifiable as in his own “voice” and is dramatically dissimilar to the official, wooden style used by the State Department in its own messaging. Moreover, Mr. Van Buren does not use other official symbols that might potentially confuse an audience. Finalloy, the State Department never argued, until after Mr. Van Buren went to the U.S. Office of Special Counsel, which adjudicates whistleblower complaints, that Mr. Van Buren’s book or writings have disrupted normal State Department operations or affected the agency’s operational efficiency, the legal standard for when an employee has crossed the First Amendment line.

Death by a Thousand Paper Cuts: The Slow Immolation of a Whistleblower

On September 7, 2010, Mr. Van Buren submitted his book manuscript for pre-publication review. It disclosed numerous examples of rampant reconstruction fraud in Iraq. Mr. Van Buren submitted his manuscript to the State Department’s Bureau of Public Affairs (PA) in accordance with 3 Foreign Affairs Manual (“FAM”) 4170, which governs official clearance of speaking, writing, and teaching. It specifically requires pre-clearance for any speech or writing on “matters of official concern.” The Supreme Court held that an earlier version of the State Department’s pre-publication review scheme was valid in a case called Weaver. However, the current regulation is outdated, vague and overbroad, defining “matters of official concern” as matters that “relate to any policy, program, or operation of the employee’s agency or to current U.S. foreign policies, or reasonably may be expected to affect the foreign relations of the United States.” Matters that relate to U.S. foreign policies can be just about anything.  Also, Weaver was decided years prior to the advent of social media, and such a requirement on new media is more constitutionally-questionable than when applied to traditional publications.