What happened to "look forward, not backward"?

The DOJ's aggressive prosecution of an NSA whistleblower is the opposite of its refusal to prosecute Bush crimes

Published April 15, 2010 7:16PM (EDT)

(updated below - Update II)

The Obama Justice Department today announced that it has secured a ten-felony-count indictment against Thomas Drake, an official with the National Security Agency during the Bush years.  Drake's indictment, of course, has nothing to do with the criminal surveillance undertaken by the NSA.  Rather, the DOJ alleges "that between approximately February 2006 and November 2007, a newspaper reporter published a series of articles about the NSA," and it claims "Drake served as a source for many of those articles, including articles that contained classified information."  In other words, he's being subjected to what The New York Times' Scott Shane calls a "highly unusual" prosecution for being a whistle-blower on the Bush era's sprawling and secretive Surveillance State.  Although the indictment does not specify Drake's leaks, it is highly likely (as Shane also suggests) that it is based on Drake's bringing to the public's attention major failures and cost over-runs with the NSA's spying programs via leaks to The Baltimore Sun.

Let's spend just a moment thinking about what this means.  We've known since December, 2005, that Bush officials, including at the NSA, committed felonies by eavesdropping on Americans without the warrants required by law -- crimes punishable by a five-year prison term and$10,000 fine for each offense.  All three federal judges to rule on the question have found those actions to be in violation of the law.  Yet there have been no criminal investigations, let alone indictments, for those crimes, and there won't be any, due to Barack Obama's dictate that we "Look Forward, Not Backward."  Thus, the high-level political officials who committed crimes while running the NSA will be completely immunized for their serious crimes.

By stark contrast, an NSA official who brought to the public's attention towering failures and waste at the NSA -- revelations that led to exposés that, as Shane put it, were "honored with a top prize from the Society for Professional Journalists" -- is now being prosecuted for crimes that could lead to a lengthy prison term.  Why doesn't Obama's dictate that we "Look Forward, Not Backward," protect this NSA whistle-blower from prosecution at least as much as the high-level Bush officials who criminally spied on American citizens?  Isn't the DOJ's prosecution of Drake the classic case of "Looking Backward," by digging into Bush-era crimes, controversies and disclosures?

Interestingly, the Bush DOJ long threatened to prosecute not only NSA whistle-blowers but also The New York Times for revealing its illegal spying.  It never did so, however, likely because, as Shane speculates, prosecutions for those leaks would cause light to be shined on what the NSA actually did when eavesdropping on Americans.  Yet here is the Obama DOJ prosecuting a whistleblower, a prosecution that is certain to intimidate and deter other whistle-blowers, thus choking off one of the very few avenues which Americans have left for learning about what this sprawling, obsessively secret Surveillance State does.  As Lucy Dalglish, Executive Director of the Reporters Committee for Freedom of the Presss, told the NYT today:  "The whole point of the prosecution is to have a chilling effect on reporters and sources, and it will."

For that reason, the DOJ's aggressive prosecution of someone who exposed serious waste and mismanagement at the NSA could, as the NYT's Shane put it, "raise questions about whether the government is merely moving to protect itself from public scrutiny."  Whatever else is true, decreeing that we must "Look Forward, not Backward" -- and then bestowing that Imperial Generosity only to the crimes of the President and his aides but not to courageous whistle-blowers (or, for that matter, anyone else) -- is anything but "Justice."

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UPDATE:  The Atlantic's Marc Ambinder summarizes The Baltimore Sun revelations which are almost certainly what Drake is accused of leaking:

In 2006 and 2007, Siobahn Gorman, a highly regarded intelligence reporter for the Baltimore Sun, wrote a series of articles about how the National Security Agency was (mis)managing a highly sensitive, very expensive collection program known as Trailblazer. Relying on interviews with current and former senior intelligence officials as well as internal documents, Gorman was able to show that the NSA's "state-of-the art tool for sifting through an ocean of modern-day digital communications" was a boondoggle of sorts -- and that the agency had removed several of the privacy safeguards that were put in place to protect domestic conversations and e-mails from being stored and monitored.

Under the Obama DOJ's two-tiered justice system (and it's an Obama political appointee, Lanny Breuer, trumpeting the indictment), engaging in serious wrongdoing entitles you to immunity (Look Forward, Not Backward), whereas exposing it to the public merits a lengthy prison term.


UPDATE II:  More on all of this here.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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