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Friday, Apr 16, 2010 06:17 ET
What the whistleblower prosecution says about the Obama DOJ
(updated below)
The more I think and read about the Obama DOJ's prosecution of NSA whistleblower Thomas Drake, 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. During the Bush years, in the wake of the NSA scandal, I used to write post after post about how warped and dangerous it was that the Bush DOJ was protecting the people who criminally spied on Americans (Bush, Cheney Michael Hayden) while simultaneously threatening to prosecute the whistle-blowers who exposed misconduct. But the Bush DOJ never actually followed through on those menacing threats; no NSA whistle-blowers were indicted during Bush's term (though several were threatened). It took the election of Barack Obama for that to happen, as his handpicked Assistant Attorney General publicly boasted yesterday of the indictment against Drake.
Aside from the indefensible fact that only crimes committed by high-level Bush officials -- but nobody else -- enjoy the benefits of Obama's "Look Forward, Not Backward" decree, think about the interests being served by this prosecution. Most discussions yesterday suggested that Drake's leaks to The Baltimore Sun's Sibohan Gorman were about waste and mismanagement in the "Trailblazer" project rather than controversial NSA spying activities, but that's not entirely accurate.
Just consider this May 18, 2006, article by Gorman, describing how and why the NSA opted for the "Trailblazer" proposal over the privacy-protecting "Thin Thread" program, in the process discarding key privacy protections designed to ensure that the NSA would not eavesdrop on the domestic calls of U.S. citizens (h/t ondelette). In that article -- which really should be read to get a sense for the whistle-blowing that is being punished by the DOJ -- Gorman described at length how then-NSA head Michael Hayden rejected technologies that could "rapidly separate and encrypt U.S.-related communications to ensure privacy" and "that monitored potential abuse of the records." As she put it: "Once President Bush gave the go-ahead for the NSA to secretly gather and analyze domestic phone records -- an authorization that carried no stipulations about identity protection -- agency officials regarded the encryption as an unnecessary step and rejected it."
It's not hyperbole to say that Bush's decision to use the NSA to spy domestically on American citizens was one of the most significant stories of this generation. It was long recognized that turning the NSA inward was one of the greatest dangers to freedom, as Sen. Frank Church warned back in 1975, after he investigated America's secret surveillance apparatus: "That capability at any time could be turned around on the American people and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn't matter. There would be no place to hide." It was, of course, the December 16, 2005, New York Times article by Jim Risen and Eric Lichtblau which first disclosed that the Bush NSA was illegally eavesdropping on American citizens inside the U.S., but Gorman's articles regarding the Trailblazer program -- in the time period covered by the indictment, using NSA sources (almost certainly including Drake) -- provided crucial details about how and why the Bush NSA dispensed with key safeguards to protect innocent Americans from such invasive domestic surveillance.
And then there's the massive fraud and waste which Gorman also exposed as a result of Drake's whistle-blowing. The primary focus of her stories was that the Trailblazer project turned into a massive, billion-dollar "boondoggle" which vastly exceeded its original estimates, sucked up enormous amounts of the post-9/11 intelligence budget explosion, and produced very little of value. But look at the coalition of corporations which was contracted to develop this Trailblazer project, the familiar cast of Surveillance State interests who were the recipients of the "boondoggle" which Gorman and Drake exposed:
SAIC itself is, by its own description, an enormous defense contractor devoted to "customers in the U.S. Department of Defense, the intelligence community, the U.S. Department of Homeland Security, other U.S. Government civil agencies and selected commercial markets." Just like its Trailblazer partners -- Boeing, Booz Allen and Northrop Grumman -- SAIC feeds off the massive Pentagon and intelligence budgets. In other words, Drake's leaks to Gorman exposed serious wrongdoing on the part of (a) the NSA and its illegal domestic spying activities and (b) the vast private intelligence and defense industry that has all but formally merged with the CIA, NSA and Pentagon to become the public-private National Security and Surveillance State that exercises more power, by far, than any single faction in the country.
Think about to whose interests the Obama DOJ is devoted given that -- while they protect the most profound Bush crimes based on the Presidential decree of "Look Forward, Not Backward" -- they chose this whistle-blower to prosecute (and Drake, incidentally, is apparently impoverished, as he's been assigned a Public Defender to represent him). In the process, of course, the Obama DOJ also intimidates and deters future whistle-blowers from exposing what they know, thus further suffocating one of the very few remaining mechanisms Americans have to learn about what takes place behind the virtually impenetrable Wall of Secrecy surrounding the Surveillance State -- a Wall of Secrecy which the Obama administration, through its promiscuous use of "state secrets" and immunity claims, has relentlessly fortified and expanded. Anyone who doubts that whistle-blower prosecutions like this are intended to prevent any further disclosures of wrongdoing should simply review the 2008 Pentagon report which identified WikiLeaks as a major threat to the U.S. and proposed that exposure and prosecution of their sources would crush their ability to obtain further leaks.
It's true that leaking classified information is a crime. That's what makes whistleblowers like Drake so courageous. That's why Daniel Ellsberg -- who literally risked his liberty in an effort to help end the Vietnam War -- is one of the 20th Century's genuine American heroes. And if political-related crimes were punished equally, one could accept whistle-blower prosecutions even while questioning the motives behind them and the priorities they reflect. But that's not the situation that prevails.
Instead, here you have the Obama DOJ in all its glory: no prosecutions (but rather full-scale immunity extended) for war crimes, torture, and illegal spying. For those crimes, we must Look Forward, Not Backward. But for those poor individuals who courageously blow the whistle on oozing corruption, waste and illegal surveillance by the omnipotent public-private Surveillance State: the full weight of the "justice system" comes crashing down upon them with threats of many years in prison.
UPDATE: John Cole, proving once again that one can be an enthusiastic Obama admirer without reflexively excusing and justifying everything he does, writes today:
Cole is referring to the revelation today that, once he learned it was done, then-CIA-Director Porter Goss approved of the destruction of CIA interrogation videos (an act which the co-Chairs of the 9/11 Commission said constituted obstruction of justice); the message Cole describes is exactly the one being sent by the Drake prosecution.
The more I think and read about the Obama DOJ's prosecution of NSA whistleblower Thomas Drake, 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. During the Bush years, in the wake of the NSA scandal, I used to write post after post about how warped and dangerous it was that the Bush DOJ was protecting the people who criminally spied on Americans (Bush, Cheney Michael Hayden) while simultaneously threatening to prosecute the whistle-blowers who exposed misconduct. But the Bush DOJ never actually followed through on those menacing threats; no NSA whistle-blowers were indicted during Bush's term (though several were threatened). It took the election of Barack Obama for that to happen, as his handpicked Assistant Attorney General publicly boasted yesterday of the indictment against Drake.
Aside from the indefensible fact that only crimes committed by high-level Bush officials -- but nobody else -- enjoy the benefits of Obama's "Look Forward, Not Backward" decree, think about the interests being served by this prosecution. Most discussions yesterday suggested that Drake's leaks to The Baltimore Sun's Sibohan Gorman were about waste and mismanagement in the "Trailblazer" project rather than controversial NSA spying activities, but that's not entirely accurate.
Just consider this May 18, 2006, article by Gorman, describing how and why the NSA opted for the "Trailblazer" proposal over the privacy-protecting "Thin Thread" program, in the process discarding key privacy protections designed to ensure that the NSA would not eavesdrop on the domestic calls of U.S. citizens (h/t ondelette). In that article -- which really should be read to get a sense for the whistle-blowing that is being punished by the DOJ -- Gorman described at length how then-NSA head Michael Hayden rejected technologies that could "rapidly separate and encrypt U.S.-related communications to ensure privacy" and "that monitored potential abuse of the records." As she put it: "Once President Bush gave the go-ahead for the NSA to secretly gather and analyze domestic phone records -- an authorization that carried no stipulations about identity protection -- agency officials regarded the encryption as an unnecessary step and rejected it."
It's not hyperbole to say that Bush's decision to use the NSA to spy domestically on American citizens was one of the most significant stories of this generation. It was long recognized that turning the NSA inward was one of the greatest dangers to freedom, as Sen. Frank Church warned back in 1975, after he investigated America's secret surveillance apparatus: "That capability at any time could be turned around on the American people and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn't matter. There would be no place to hide." It was, of course, the December 16, 2005, New York Times article by Jim Risen and Eric Lichtblau which first disclosed that the Bush NSA was illegally eavesdropping on American citizens inside the U.S., but Gorman's articles regarding the Trailblazer program -- in the time period covered by the indictment, using NSA sources (almost certainly including Drake) -- provided crucial details about how and why the Bush NSA dispensed with key safeguards to protect innocent Americans from such invasive domestic surveillance.
And then there's the massive fraud and waste which Gorman also exposed as a result of Drake's whistle-blowing. The primary focus of her stories was that the Trailblazer project turned into a massive, billion-dollar "boondoggle" which vastly exceeded its original estimates, sucked up enormous amounts of the post-9/11 intelligence budget explosion, and produced very little of value. But look at the coalition of corporations which was contracted to develop this Trailblazer project, the familiar cast of Surveillance State interests who were the recipients of the "boondoggle" which Gorman and Drake exposed:
Science Applications International Corporation (SAIC) today announced a contract award from the National Security Agency to be the provider of the technology demonstration platform phase of the TRAILBLAZER program.
The TDP phase of the TRAILBLAZER program is currently estimated at $280 million and will be performed over a period of 26 months.
The NSA selected the SAIC-led Digital Network Intelligence Enterprise team that includes Northrop Grumman, Booz Allen Hamilton, The Boeing Company, Computer Sciences Corporation and SAIC wholly-owned subsidiary Telcordia Technologies to contribute to the modernization of the NSA's signals intelligence capabilities.
SAIC itself is, by its own description, an enormous defense contractor devoted to "customers in the U.S. Department of Defense, the intelligence community, the U.S. Department of Homeland Security, other U.S. Government civil agencies and selected commercial markets." Just like its Trailblazer partners -- Boeing, Booz Allen and Northrop Grumman -- SAIC feeds off the massive Pentagon and intelligence budgets. In other words, Drake's leaks to Gorman exposed serious wrongdoing on the part of (a) the NSA and its illegal domestic spying activities and (b) the vast private intelligence and defense industry that has all but formally merged with the CIA, NSA and Pentagon to become the public-private National Security and Surveillance State that exercises more power, by far, than any single faction in the country.
Think about to whose interests the Obama DOJ is devoted given that -- while they protect the most profound Bush crimes based on the Presidential decree of "Look Forward, Not Backward" -- they chose this whistle-blower to prosecute (and Drake, incidentally, is apparently impoverished, as he's been assigned a Public Defender to represent him). In the process, of course, the Obama DOJ also intimidates and deters future whistle-blowers from exposing what they know, thus further suffocating one of the very few remaining mechanisms Americans have to learn about what takes place behind the virtually impenetrable Wall of Secrecy surrounding the Surveillance State -- a Wall of Secrecy which the Obama administration, through its promiscuous use of "state secrets" and immunity claims, has relentlessly fortified and expanded. Anyone who doubts that whistle-blower prosecutions like this are intended to prevent any further disclosures of wrongdoing should simply review the 2008 Pentagon report which identified WikiLeaks as a major threat to the U.S. and proposed that exposure and prosecution of their sources would crush their ability to obtain further leaks.
It's true that leaking classified information is a crime. That's what makes whistleblowers like Drake so courageous. That's why Daniel Ellsberg -- who literally risked his liberty in an effort to help end the Vietnam War -- is one of the 20th Century's genuine American heroes. And if political-related crimes were punished equally, one could accept whistle-blower prosecutions even while questioning the motives behind them and the priorities they reflect. But that's not the situation that prevails.
Instead, here you have the Obama DOJ in all its glory: no prosecutions (but rather full-scale immunity extended) for war crimes, torture, and illegal spying. For those crimes, we must Look Forward, Not Backward. But for those poor individuals who courageously blow the whistle on oozing corruption, waste and illegal surveillance by the omnipotent public-private Surveillance State: the full weight of the "justice system" comes crashing down upon them with threats of many years in prison.
UPDATE: John Cole, proving once again that one can be an enthusiastic Obama admirer without reflexively excusing and justifying everything he does, writes today:
The message is clear- you torture people and then destroy the evidence, and you get off without so much as a sternly worded letter.
If you are a whistle blower outlining criminal behavior by the government, [] you get prosecuted.
Cole is referring to the revelation today that, once he learned it was done, then-CIA-Director Porter Goss approved of the destruction of CIA interrogation videos (an act which the co-Chairs of the 9/11 Commission said constituted obstruction of justice); the message Cole describes is exactly the one being sent by the Drake prosecution.
Open Salon
Obama, 9/11, and the Perceived Threat from al Qaeda 
The Trial of John Yoo
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I was previously a constitutional law and civil rights litigator in New York. I am the author of two New York Times Bestselling books: "How Would a Patriot Act?" (May, 2006), a critique of the Bush administration's use of executive power, and "A Tragic Legacy" (June, 2007), which examines the Bush legacy. My most recent book, "Great American Hypocrites", examines the manipulative electoral tactics used by the GOP and propagated by the establishment press, and was released in April, 2008, by Random House/Crown.Twitter: @ggreenwald
E-mail: GGreenwald@salon.com
ggreenwald @MikeDrewWhat No, you misread that (Twitter doesn't provide clarity) - MOST would be cheering if it happened to Hannity - not me 2 hours ago reply
ggreenwald I have huge respect for Chris Hayes' decision not to host in Olbermann's place 2 hours ago reply
chrislhayes My not hosting tonight has *nothing* to do with several donations I made to two friends *before* I ever signed an MSNBC contract <2/2> 6 hours ago reply
chrislhayes OK: I'm not filling in on Countdown tonight because I didn't feel comfortable doing it given the circumstances. <1/2> 6 hours ago reply
ggreenwald @TeresaKopec most, definitely: "would be cheering if we lived in alt universe where Hannity got canned for same thing" 6 hours ago reply
ggreenwald @TeresaKopec Also, I think it was clear to everyone that Olbermann was a liberal - by contrast, nobody knew who paid Wolffe - but fair point 6 hours ago reply
ggreenwald @TeresaKopec You make a fair point about disclosure, but there's a big difference between getting secretly paid (Wolffe) and donating 6 hours ago reply
ggreenwald This stupidity from Phil Griffin is unfathomable - it's OK to be a NATION editor, but not if he gives $ to a Democrat http://is.gd/gL9TQ 7 hours ago reply
ggreenwald If someone knows where to find a full video - or even better, a transcript - of MSNBC's election night coverage, I'd really appreciate it. 7 hours ago reply
ggreenwald Why are @KeithOlbermann's donations bad, but GE's $2 million in contributions are OK? http://is.gd/gL8BM 7 hours ago reply
ggreenwald Oh - I've been traveling - in an airport - just see the Olbermann/MSNBC controversy now: wasn't aware of it during my last tweet 7 hours ago reply
ggreenwald Going on Lawrence O'Donnell's show on Monday night to continue our "discussion" - assuming the logistics can be worked out. 7 hours ago reply
ggreenwald @CNG I linked to your article twice - and made clear it was your video by naming your paper - would else would you have liked? 8 hours ago reply
ggreenwald While pretending he doesn't, Joe Klein embraces the long-standing anti-Blue-Dog view of the Left http://is.gd/gK9GO 17 hours ago reply
ggreenwald @WBDass Understood - but I don't think it's in dispute that Democratic turnout was low - way lower than 2006. yesterday reply
ggreenwald Totally - send them to GITMO: RT @paulbeard "the Professional Left is the enemy of the nation." yesterday reply
ggreenwald @paulbeard If I didn't read for myself people saying Jane Hamsher played a bigger role in the election than Obama, I wouldn't believe it yesterday reply
ggreenwald One of the funniest Kos diaries ever (top-rated!) - the first sentence of the third paragraph is especially amusing: http://is.gd/gJjZY yesterday reply
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