Obama Administration Promises Transparency but Vigorously Prosecutes Whistleblowers

by Matt Clarke

In 2009, President Barack Obama promised a more transparent, whistleblower-friendly government. Obama claims he delivered on that promise with his November 27, 2012 signing of the Whistleblower Protection Enhancement Act, especially since he issued a White House policy directive to executive branch agencies extending the Act to include security and intelligence workers, positions not included in the original legislation.

But what the Obama administration has done is just the opposite: vigorous prosecutions of at least eight whistleblowers or leakers under the 1917 Espionage Act, more than double that of all other presidents combined. According to American Civil Liberties Union legislative counsel Gabe Rottman, “The Obama administration has secured 526 months of prison time for national security leakers, versus only 24 months total jail time for everyone else since the American Revolution.”

Another aspect of the administration’s war on whistleblowers is a double standard – while all of the prison time has been imposed on lower-level employees, high-ranking and well-connected officials who have also leaked sensitive national security information have not faced jail time or had their reputations ruined.

Perhaps the most glaring example is the case of General David Petraeus, the celebrated Army officer and former CIA director who remains an advisor to the Obama administration on the war against the Islamic State. On March 3, 2015, Petraeus pleaded guilty to one misdemeanor count of disclosing classified information; the following month he was sentenced in federal court to two years’ probation and a $100,000 fine for disclosing information that included the names of covert operatives to his mistress, then lying about it to the FBI.

Then there’s Leon Panetta, the former Congressman, CIA director and Secretary of Defense, who’s spending his retirement on his walnut farm in California instead of in prison. Panetta was responsible for revealing secrets about the U.S. raid that killed al-Qaeda leader Osama bin Laden in 2011 to filmmaker Mark Boal, producer of the movie Zero Dark Thirty. Boal was allowed to attend a secret speech that Panetta gave at the CIA’s headquarters less than two months after the raid, in which the former director revealed “the unit that conducted the operation and identified the ground commander by name,” according to a report prepared by the Inspector General for the Department of Defense.

The Inspector General’s report also named a key figure who facilitated cooperation between the Obama administration and the filmmakers: Michael Vickers, who, as Under Secretary of Defense for Intelligence, was the Pentagon’s senior civilian intelligence official. Vickers also escaped prosecution for his role in meeting repeatedly with Boal and Kathryn Bigelow, the film’s director, and providing them with the name of a “special operations planner” who, he said, “can probably give you everything you would want” about the bin Laden raid.

 Critics have been quick to point out that the Whistleblower Protection Enhancement Act prohibits retaliation and prosecution of government employees only for reporting alleged waste, fraud or abuse through official channels. In practice, however, that can mean reporting the allegations to the very people involved in the alleged misdeeds. The law provides no protection for government officials who discuss their concerns with members of the media, and the Obama administration has gone after such whistleblowers with a vengeance.

Jesselyn Radack, national security and human rights director for the Government Accountability Project, called the Obama administration’s prosecutions under the Espionage Act “selective and vindictive.”

“He was elected on a platform of transparency and openness and a platform in which he praised whistleblowers,” said Radack. “Not only has he not carried through on whistleblower promises, but he’s gone one step further and is prosecuting.”

John Kiriakou became the first CIA agent ever convicted and imprisoned for disclosing information to the press when he was sentenced in January 2013 to 2½ years for blowing the whistle on the use of torture against terrorism suspects during the Bush administration, and for providing a freelance reporter with the name of an agent who used waterboarding to interrogate prisoners. That information was never published, but Kiriakou was sent to a federal prison in Loretto, Pennsylvania and spent the last three months of his sentence under house arrest.

“I would do it all over again,” Kiriakou told Democracy Now after torture was ostensibly outlawed by the U.S. government. “I regret giving out the name” of the agent, he stated just days before he was sentenced. “It was a momentary lapse in judgment. But I don’t regret whistleblowing on waterboarding.”

Kiriakou maintained that the culture of the CIA was not open to internal whistleblowing during the post-911 Bush administration.

“It was so militant,” he said. “If you weren’t part of the solution, you were part of the problem. It was unspoken, but clearly out there.”

Former senior National Security Agency employee Thomas Drake was also prosecuted by the Obama administration, for a disclosure to the press that occurred during the Bush presidency. He was charged with ten felony counts for allegedly sharing information about inefficiencies and cost overruns in a later-abandoned NSA surveillance program with a reporter for the Baltimore Sun. The government’s case collapsed just before trial and Drake agreed to plead guilty to a misdemeanor in exchange for the dismissal of all other charges.

Drake said the administration’s failed pursuit of his prosecution was deliberate, with the intent to “make me an object lesson and to send the most chilling message” to other potential whistleblowers. Adamant in his denial of disclosing classified information, Drake said the prosecution nonetheless “bankrupted, blacklisted and blackballed” him, turning him into “damaged goods.” He said defending against an Espionage Act prosecution can cost over a million dollars and is effectively career-ending, even if the defense is successful.

“It’s important to understand what is going on in this country – the government has criminalized whistleblowing,” said Drake, 55, formerly a $155,000-a-year NSA employee who now works at an Apple store.

“The two biggest scandals of the Bush administration in terms of constitutional violations [were] the use of torture and renditions, and secret surveillance – and the only two people to date who have been charged in connection with those scandals are myself and John Kiriakou,” Drake noted, pointing out that no one has ever been charged for torturing suspects or conducting illegal surveillance. “That should tell you something about how hard the Obama administration is going to protect those programs.”

In 2009, former FBI contractor and attorney Shamai Leibowitz, who ran a personal blog called “Pursuing Justice,” pleaded guilty to providing classified information to another blogger; he was sentenced to 20 months in federal prison.

“During the course of my work I came across wrongdoings that led me to conclude this is an abuse of power and a violation of the law,” he said. “I reported these violations to my superiors at the FBI who did nothing about them. Thereafter, to my great regret, I disclosed the violations to a member of the media.”

Former State Department intelligence analyst Stephen J. Kim was sentenced to 13 months in prison after pleading guilty to charges that he leaked details about North Korea’s nuclear program to Fox News reporter James Rosen in June 2009. The Obama administration alleged that Kim spoke with Rosen about how North Korea might react to a UN resolution condemning its nuclear tests, then lied to the FBI when asked about the conversation and whether he had a continuing relationship with Rosen.

“To be accused of doing something harmful to the U.S. national interest is something I can’t comprehend,” said Kim, 45, who met Rosen at a press briefing that Kim’s superiors had him host. “Your reputation is shot and there is such a sense of shame brought on the family.” Kim insisted he had revealed details of North Korea’s nuclear program to make the American public aware of the nature of the threat posed by the South Asian nation.

Former U.S Army intelligence analyst Chelsea Manning, formerly known as Bradley Manning, is serving a 35-year prison sentence for uploading confidential files to which she had access at a military base in Iraq to WikiLeaks, an Internet site for whistleblowers. “When I chose to disclose classified information, I did so out of a love for my country and a sense of duty to others,” Manning said at her sentencing. Supporters have argued that the disclosures actually helped inspire democratic uprisings in the Arab world.

In November 2013, Donald Sachtleben, 55, a former FBI agent, was sentenced to over three years in federal prison for disclosing confidential information to a reporter with the Associated Press. The AP ran a story using the information, concerning a U.S. operation in Yemen, which resulted in an investigation and charges filed against Sachtleben. Prosecutors denied that he had acted “as any kind of ‘whistleblower.’”

Ex-CIA officer Jeffrey Sterling was sentenced on May 11, 2015 to 42 months in prison following his conviction on nine felony charges, including seven counts of espionage. The Obama administration accused Sterling of leaking details about a botched CIA operation to feed false information about nuclear technology to Iran to Pulitzer Prize-winning New York Times reporter James Risen, who wrote about the failed gambit in his book State of War. The only proof that prosecutors presented was metadata which showed Sterling and Risen had spoken on the phone, but did not demonstrate the content of their conversations.

One of the few well-known whistleblowers who leaked sensitive government information but has not been convicted is Edward Snowden, a former CIA employee who in 2013 released documents related to surveillance programs conducted by the National Security Agency. But the lack of a conviction is only because Snowden fled the U.S. and was granted asylum in Russia; he faces charges of violating the Espionage Act and theft of government property if he returns.

According to Radack, government employees are rebelling against excessive and unnecessary classification of information that is considered embarrassing but is not a matter of national security.

“They see war crimes, crimes against humanity, illegal domestic surveillance of Americans, and it’s all being protected under the guise of secrecy and classification when, in reality, that stuff should totally be in the public domain,” she said.

Supporters of the Obama administration’s prosecution of Espionage Act cases have argued the leaks caused harm to national security interests, but critics question that claim.

“In all these cases the government has claimed that the U.S. has been harmed in some way, though they never articulated how,” Radack observed. “It’s purely a lot of fear mongering that we see in these cases. No identifiable harm has ever been claimed by the government as a result of these ... disclosures.”

Complicating the equation is the frequent use by the White House of authorized leakers who plant stories in the press disclosing classified information with the Obama administration’s approval.

“All whistleblowers might be considered leakers, but all leakers aren’t whistleblowers,” according to Joe Newman, spokesman for the Project on Government Oversight (POGO), an organization that worked 13 years for the passage of the Whistleblower Protection Enhancement Act. “Prosecutors will label someone a leaker to frame them in a bad light when in fact that person should be considered a whistleblower and deserves protection under the law.”

“The government is going after the messenger when they should be concerned about what these people are saying,” Newman continued. “The overreaction to WikiLeaks has influenced what we’ve seen ... under the Obama administration, which has been a little heavy-handed in the use of the Espionage Act.”

“There’s a problem with prosecutions that don’t distinguish between bad people – people who spy for other governments, people who sell secrets for money – and people who are accused of having conversations and discussions,” added attorney Abba Lowell, who represented Stephen Kim and maintains that Kim falls into the latter group.

John Kiriakou summed up his view of the Obama administration’s attitude towards whistleblowers in a May 23, 2015 article he penned for Foreign Policy in Focus.

“The message is clear: If you go public with evidence of government malfeasance, you must prepare yourself for the worst. The Justice Department will spend millions of taxpayer dollars to ruin you financially, personally, and professionally – and to make an example of you in the media.”

Kiriakou, author of The Reluctant Spy: My Secret Life in the CIA’s War on Terror, was the keynote speaker at Prison Legal News’ 25th Anniversary celebrations held in Seattle, Washington on November 9, 2015 and in New York City on December 1.

Sources: Associated Press, www.abcnews.go.com, www.bloomberg.com, www.theguardian.com, www.washingtonsblog.com, www.democracynow.org, www.juancole.com, www.americanbar.org, www.fas.org

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