Feds Ridiculous Prosecution Of Whistleblower Thomas Drake Falling Apart

White House Ramps Up Efforts To Criminalize Wikileaks, As Witnesses Refuse To 'Cooperate'

from the this-is-the-new-transparency? dept

Thu, Jun 9th 2011 1:25pm — Mike Masnick

We've discussed a few times how, despite all the promises of transparency and protection for whistleblowers from President Obama, the Obama administration has been by far the most aggressive presidential administration in going after leakers and trying to charge them with crimes. So it was little surprise that the feds were putting tremendous pressure on folks like Bradley Manning to admit to a "conspiracy" involving Wikileaks. Manning refused to play along, so now the feds are broadly widening their investigation, issuing all sorts of random subpoenas on people with very, very distant relations to Wikileaks, seeking something (anything!) that can be used to bring charges under the Espionage Act.

Meanwhile, many who are being called as witnesses are refusing to participate, and may face jailtime themselves:

But it also highlights a very important potential controversy: the refusal of numerous witnesses to cooperate in any way with this pernicious investigation. One witness who has appeared before the Grand Jury has already refused to answer any questions beyond the most basic biographical ones (name and address), invoking the Fifth Amendment right against self-incrimination to do so, and other witnesses are highly likely to follow suit.

One option for federal prosecutors when facing a witness who refuses to answer questions on this basis is to offer them immunity, meaning that nothing they say when testifying can be used to prosecute them (they can still be prosecuted, just not with the aid of anything they say while testifying). Such an offer then precludes further invocations of the self-incrimination privilege as a grounds for refusing to answer questions, as it means there is no longer any danger that the witness could incriminate themselves by testifying. In the event the government makes such an offer, the court would almost certainly compel the witness to answer questions. But at least some of those witnesses -- ones who have already been subpoenaed or are likely to be -- intend to refuse to answer questions anyway, risking an almost-certain finding of contempt of court, which typically carries jail terms as a means of forcing testimony.

One witness or potential witness who is considering that form of civil disobedience told me they view the attempt to criminalize WikiLeaks as such a profound assault on basic freedoms, including press freedoms -- one motivated by a desire to conceal government wrongdoing and illegality -- that they would rather be imprisoned than cooperate in any way with those efforts. That is the mindset of true principled heroism, and if it actually comes to that, anyone committed to transparency and preservation of press freedoms should do everything possible to support such persons in any way they can...

This whole thing seems like a massive waste of resources by the Administration, seeking to punish whistleblowers and the press for revealing information that wasn't sensitive, but merely embarrassing.

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Filed Under: espionage, fifth amendment, first amendment, wikileaks
Companies: wikileaks

34 Comments

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Anonymous Coward, 9 Jun 2011 @ 1:40pm

We've discussed a few times how, despite all the promises of transparency and protection for whistleblowers from President Obama, the Obama administration has been by far the most aggressive presidential administration in going after leakers and trying to charge them with crimes.

>implying politicians(especially liberal ones) aren't the cause of all woe in modern america
>2011

seriously though, who didn't see this coming? besides all the hippie college kids who couldn't see past his skin color when they voted for him.
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Anonymous Coward, 9 Jun 2011 @ 1:46pm

Obama, Bush, Clinton... all puppets of shadow government.
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Anonymous Coward, 9 Jun 2011 @ 1:48pm

Re:
shadow government sounds very tin foil hat, better to call it what it is, corporatocracy
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weneedhelp (profile), 9 Jun 2011 @ 1:53pm

Re:
At least with the Neoconservative Republican think tanks, they had the balls to be open about it. See The Project for a New American Century, Rebuilding Americas Defenses pdf. The definition of change Barry had was completely different than ours.
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rubberpants (profile), 9 Jun 2011 @ 1:57pm

I think they are pushing so hard on this because they want to try to discourage individuals from leaking information in the future. Imagine if all the back-room deals, violations of the law, and instances of blatant self-enrichment weren't kept secret. The whole system would implode.
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Joe Publius (profile), 9 Jun 2011 @ 2:03pm

Re: Re:
I gotta agree, there aren't a lot of shadows surrounding the folks who like to pull the strings.

Just gold. Lots of shiny-shiny gold.
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HothMonster, 9 Jun 2011 @ 2:13pm

Re:
oh well in that case, more power to them
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Steven (profile), 9 Jun 2011 @ 2:16pm

All I want from the next president is two things.

Freeze total government spending at current levels (Yes I know the president doesn't set the budget, but a promise to veto anything over current levels would be enough).

Provide easy access to all non-secret government information.

Two simple things that would go a loooong way to fixing this crap. No presidential candidate will even dare say it, much less do it.
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Bengie, 9 Jun 2011 @ 2:27pm

Jury
They have a right to go before a jury of their peers. I want to see an actually jury convict them of anything.
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Capitalist Lion Tamer (profile), 9 Jun 2011 @ 2:29pm

Re:
All I want is massive, decades-long gridlock.
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iamtheky (profile), 9 Jun 2011 @ 2:58pm

punish whistleblowers and the press for revealing information that wasn't sensitive, but merely embarrassing.

while i am wholly on the side of the resistance... some of the info leaked was most certainly sensitive, classified even. siprnet is not just for the embarrasing stuff.
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MrWilson, 9 Jun 2011 @ 3:01pm

Re: Jury
Oh the irony of arresting people for not providing information about the people who provided information that the government wouldn't provide.
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Anonymous Coward, 9 Jun 2011 @ 3:07pm

And if someone were to stand up to a villainous government in the name of the freedoms promised by the constitution, that person would be a patriot and hero...even if that government was our own.
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Dave, 9 Jun 2011 @ 3:22pm

Re: Re:
My idea is to take away congresses power to pass laws and only let them repeal existing ones. That'd be awesome.
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FuzzyDuck, 9 Jun 2011 @ 3:25pm

Re:
Or as a wise person once said:

"A true patriot must always be ready to defend his country against his government."
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FuzzyDuck, 9 Jun 2011 @ 3:33pm

Re:
Indeed, releasing classified evidence of crimes committed by the US govt and branches thereof, is more than a little embarrassing.

However what has done most damage to the reputation of the US govt aren't those leaks but the way the US govt has reacted to them. That is what is truly deeply shameful.
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FuzzyDuck, 9 Jun 2011 @ 3:38pm

Re: Re: Re:
I had a similar idea once:

A maximum to the number of words in the law, so that whenever they have to make new laws they have to repeal old ones, to make some space.

Ideally they would be required to remove a little more than they add so that over time the number of laws diminish.
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Anonymous Coward, 9 Jun 2011 @ 4:02pm

but merely embarrassing

They embarrass themselves on a daily basis. Why would it change now? Obama is a joke, more so than Bush was... and no one thought that possible. Imagine what's next...
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Not That Anonymous Coward, 9 Jun 2011 @ 6:11pm

What might be going on...
It just occurred to me, while reading the Salon article, that the Government is just trying to change the subject. After all, who is asking the Government about stuff revealed from the leaks? I somehow think they Do Not want to be talking about that.
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Anonymous Coward, 9 Jun 2011 @ 6:53pm

Re: Re: Re: Re:
My thoughts went along the lines of a sixth grade reading comprehension test, 250 words or less, one line item per bill. One test out of committee, one test for each House and Senate versions, and a final test for the combined final bill. No slipping stuff in.
Rotate the testing between all sixth grades randomly. Congress is verbose enough that every one of those classrooms will get a crack at some bill.
Oh, and an added benefit, guess what will happen to sixth grade reading comprehension due to Congressional action?
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Chargone (profile), 9 Jun 2011 @ 7:03pm

Re:
well, given the rabid partisanship and rampant stupidity involved in american politics at the 'average voter' level, i'm betting on 'a depressingly large number of the people who voted for him'
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Chargone (profile), 9 Jun 2011 @ 7:09pm

Re: Re: Re:
glare's almost as good as transparancy for making things impossible to see. certainly better than simple shadows.
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xenomancer (profile), 9 Jun 2011 @ 8:04pm

Re: Re: Re: Re: Re:
"Oh, and an added benefit, guess what will happen to sixth grade reading comprehension due to Congressional action?"

It will go down as they pander to future voters.
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Anonymous Coward, 9 Jun 2011 @ 9:18pm

Re:
Sarah Palin?
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Anon, 9 Jun 2011 @ 9:20pm

Re: Jury
Unfortunately, contempt of court is not decided by a jury. A judge can conceivably keep a person in jail for a very long time if they find a person in contempt.
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G Thompson (profile), 9 Jun 2011 @ 11:11pm

There is an easy answer to their predicament which should (I empahsise should) work in any democratic country that works with the rule of law.

When you give evidence in front of a judicial panel you are asked a specific question under either oath or affirmation, which basically states "do you hereby state that all answers you shall provide to questions will be the truth as you have witnessed and understood it"

Stating yes to this and then NOT answering questions by evoking the Fifth (which is wholly a USA phenomenon/priviledge) or simply not answering, can make you open to contempt because of the Yes answer to oath/affirmation

In other words to not be contemptuous to the court, answer in the negative to the actual oath/affirmation. Remember a subpoena compels you to hand over physical evidence or your personage (you) for the purpose of questioning after an oath/affirmation is sworn, nothing more.

If the court(or tribunal) does not want a negative question, don't ask the question in the first place. IF this is done we then fall into the realm of duress, harassment, and emotional,psychological, and/or physical (in the case of internment) torture.

It boils down to the actual oath/affirmation. Or do you Americans have a contempt of the court for refusing to actually answer a contractual situation in any other means than in the affirmative?

A lot of law makers will balk at this, mainly because it is an affront to their system we now know, but I ask them to think back to the original common law and its precursors, like the Magna Carta et.al or even your own Bill of Rights and then say why the above is theoretically bogus.
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Anonymous Coward, 10 Jun 2011 @ 1:14am

This whole thing seems like a massive waste of resources by the Administration...

Indeed. Imagine if they invested the resources in stopping piracy instead. We'd bee a pirate free world by now.
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Jeni (profile), 10 Jun 2011 @ 4:23am

Re:
"Imagine what's next...

Kind of scary, huh. We're either going to flip or we're going to flop.

Seems to me a quote from B.O. himself should resolve this - his own words about running a "transparent government".

Government should be transparent. Transparency promotes accountability and provides ..."
http://www.whitehouse.gov/the_press_office/TransparencyandOpenGovernment/

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Jesse (profile), 10 Jun 2011 @ 7:03am

Political prisoners in the US. Nice.

I'm starting a new tag: #ThirdWorldProblemsInTheFirstWorld
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Phillip Vector (profile), 10 Jun 2011 @ 8:41am

Re:
I wonder how this would fly.. Legally..

Can a Lawyer chime in and explain what would happen if someone actually tried this please?
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Anonymous Coward, 10 Jun 2011 @ 9:27am

Re: Re: Jury
Oh the irony of arresting people for not providing information about the people who provided information that the government wouldn't provide.

Kind of like the irony of the death penalty: We kill people who kill people because killing people is wrong.
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Anonymous Coward, 10 Jun 2011 @ 9:49am

Re:
It boils down to the actual oath/affirmation.

That oath says that your answers will be truthful. It does not say that you will provide answers. Big difference.
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Anonymous Coward, 10 Jun 2011 @ 9:51am

Re: Re:
Transparency promotes accountability and provides ..."

No wonder he's against it.
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Anonymous Coward, 10 Jun 2011 @ 11:59am

Re: Re:
Palin/Trump! Ugh.
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