More Obama DOJ attacks on whistle-blowers

A Bush subpoena to a New York Times reporter in 2008 caused great controversy; the same one was just issued

Published April 29, 2010 7:30PM (EDT)

(updated below - Update II)

In February, 2008, the Bush DOJ issued a subpoena to The New York Times' James Risen, demanding the identity of his source(s) for one chapter in Risen's best-selling book, State of War.  The chapter in question described a painfully inept and counter-productive CIA effort to infiltrate the Iranian nuclear program, but which ended up instead passing on valuable information to the Iranians about how to build a bomb.  At the time that subpoena was issued, I wrote that it was a serious and "dangerous" escalation of the ongoing effort by Bush officials to intimidate journalists and their sources in order to choke off whistle-blowing disclosures, "the sole remaining avenue for a country plagued by a supine, slothful, vapid press and an indescribably submissive Congress."  I don't recall a single progressive or Democrat -- not one -- defending that subpoena.

It should surprise absolutely nobody that, as Charlie Savage reports, the Obama DOJ has now re-issued the same subpoena to Risen.  As DOJ rules require [see Section III(A)(2)(l)], any such subpoenas (to journalists) require the personal approval of the Attorney General, and Savage reports that this subpoena was approved by Eric Holder.  The reason such subpoenas are so dangerous is because journalists are duty-bound to their sources to refuse to comply, and will likely end up in prison if they don't.  Few things, if anything, are greater threats to the journalist-source relationship than DOJ subpoenas of this type.  And the idea that this particular leak jeopardized national security is nothing short of a joke, as Harper's Scott Horton makes clear:

A 1960 congressional committee looking into the nation's security classifications called secrecy "the first refuge of incompetents." It was obvious even then that national-security classifications are often used to protect government officials from having their stupidities exposed. There may be cases when it serves the public interest in national security to keep mistakes under wraps. But mistakes that are kept secret are more likely to be repeated, and those who commit them are more likely to advance to positions in which they can do more costly damage. The passages of the Risen book that are now being scrutinized by prosecutor Welch expose just that sort of embarrassingly inept behavior. The public's security was in this case plainly served by disclosure, and the prosecution that is apparently being mounted is another gallant defense of the government's right to keep its inept conduct secret not from foreign enemies but from the American public. Such steps make us dumber, weaker, and less safe.

This subpoena is being issued in the wake of the Obama DOJ's disgusting indictment of NSA whistle-blower Thomas Drake, who also exposed serious official ineptitude (along with corruption and illegality).  Indeed, Holder has assigned the same Prosecutor in charge of that prosecution to Risen's Subpoena.  Many of the key points write themselves.  As John Cole says, this is yet another instance clarifying that Obama's Look Forward, Not Backward protective decree applies only to lawbreaking Bush officials, not to those who expose government wrongdoing or to anyone else (as Cole asks:  "can't Risen just claim he tortured someone to get the information, but destroyed the tapes?"; he'd surely be granted immunity then).

Just as was true with the Drake prosecution, this highlights the real priorities of the Obama administration.  I'm not convinced that the real motive, as Horton suggests, is to conceal ineptitude.  I think it's broader than that:  to send a signal that the Greatest Crime one can commit is allowing breaches in the Absolute Wall of Secrecy that surrounds the public/private Surveillance and National Security State.  If Obama has definitively demonstrated anything, it's his commitment to preserving and even fortifying this wall (that's what the promiscuous assertions of the State Secret privilege are about).  One of the very few ways we learn about anything that happens in that realm is through conscientious whistle-blowers leaking what they know to journalists and others.  Hence, the Obama DOJ wants to snuff out the possibility that any light will be shined on what is done through this method. 

For any Democrat or progressive who wants to defend the issuance of this Subpoena, I have a question for you:  when this controversy first arose in early 2008, did you defend the issuance of the very similar subpoena to Risen by the Gonzalez/Mukasey DOJ?  If not, why not?  What's the difference?  "Pragmatism" is not an answer.

* * * * * 

On a related note, there was a disruption today in the military commission of Omar Khadr, the Guantanamo detainee first detained when he was 15-years-old.  Khadr refused to attend the hearing because GITMO guards tried to force him wear "blacked out ski goggles and sound-deafening earmuffs" while in transit to the commission room.  Khadr insiste that those devices -- which prevent the detainee from seeing or hearing anything -- were designed to "humiliate" him.  Andrew Sullivan recalls the controversial video of Jose Padilla being forced to wear the same goggles and earphones, which numerous Bush critics vehemently objected to at the time as gratuitous sadism designed to drive someone insane (as it helped to do to Padilla).  As Sullivan writes today:  "The Cheney sadism endures. To Obama's shame."

Obama defenders looking to justify this might want to turn to how Bush followers did so.  Here, for instance, was Law Professor Ann Althouse explaining how such goggles might be necessary to prevent the detainee from blinking coded messages to his Terrorist Brothers around the world. 


UPDATE:  Here are several items I've been meaning to highlight which relate to all of this:  (1) this Los Angeles Times Op-Ed, in which former Bush DOJ whistle-blower Jeselyn Raddack compares the persecution she suffered to the vindictive pursuit of whistle-blowers by the Obama DOJ; (2) this Op-Ed, also in the LA Times, by Vicki Divoll, former CIA and Senate Intelligence Committee lawyer and current Professor at the U.S. Naval Academy, who argues that Obama's assassination program is unconstitutional and otherwise illegal; and (3) this letter, sent yesterday by the ACLU's Anthony Romero to President Obama, objecting to Obama's assassination program.


UPDATE II:  Read this report on what's happening with the military commission of Omar Khadr (based on substantial reporting from Spencer Ackerman, who is present in Guantanamo) and decide for yourself if you're proud of how the Obama administration is handling these issues.  More here from Spencer on the goggles issue and Khadr's condition.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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