The Federal Government's Vindictive Legal Assault On NSA Warrantless Wiretapping Whistleblowers

from the this-is-not-the-country-we-believe-in dept

A bunch of folks have been linking to Jane Mayer's absolute must-read of an article about the federal government's prosecution of Thomas Drake for supposedly violating the Espionage Act in telling a reporter about some bureaucratic problems with the NSA's warrantless wiretapping program (details of which had already been leaked by others). The article goes through the history of warrantless wiretapping, including how aggressive the NSA and the federal government has been with the program, and how it avoided pretty much any and all oversight. It also talks to Bill Binney, a long-time NSA employee, who created the basic algorithm that's used to record pretty much all electronic communication. While he had originally put in important safeguards to keep it from following conversations in the US without a warrant, apparently, such safeguards were removed:

Binney expressed terrible remorse over the way some of his algorithms were used after 9/11. ThinThread, the "little program" that he invented to track enemies outside the U.S., "got twisted," and was used for both foreign and domestic spying: "I should apologize to the American people. It's violated everyone's rights. It can be used to eavesdrop on the whole world."

The story has many more details not just on the program itself, but also on the attempts by a few to make it legal and on the NSA's and the White House's resistance (under both Bush and Obama) to actually bring the program into agreement with the law. But the worst part is the excessive aggressiveness with which the feds then tried to bring charges against the various whistleblowers, attempting to reinterpret the Espionage Act in a way that was never intended. The people involved brought up serious concerns over both government law-breaking and over the massively wasteful spending of US taxpayer money in the process. These are classic whistleblower issues -- and not issues of state security. And yet, the whole thing gets twisted, in a clearly vindictive way, to make it out as if national secrets were revealed.

Morton Halperin, of the Open Society Institute, says that the reduced charges make the prosecution even more outlandish: "If Drake is convicted, it means the Espionage Law is an Official Secrets Act." Because reporters often retain unauthorized defense documents, Drake's conviction would establish a legal precedent making it possible to prosecute journalists as spies. "It poses a grave threat to the mechanism by which we learn most of what the government does," Halperin says.

The Espionage Act has rarely been used to prosecute leakers and whistle-blowers. Drake’s case is only the fourth in which the act has been used to indict someone for mishandling classified material. "It was meant to deal with classic espionage, not publication," Stephen Vladeck, a law professor at American University who is an expert on the statute, says.

And this is why you can see that this particular vindictive and ridiculous prosecution is so important: because if the feds get a ruling in their favor, they can go after all sorts of others who publish classified info. That is a massive restriction on the freedom of the press that we thought was established under the First Amendment.

Tragically, the article suggests that President Obama -- who has insisted repeatedly that he's in favor of transparency and whistleblowing -- has a blindspot on this matter. In his mind, he's built up an artificial separation between whistleblowing that is good and that which he doesn't like. If he doesn't like it, it somehow puts national security at risk. Yet the details of the Drake case, in particular, suggest that this is not about national security at all, but it's a pure whistleblower situation. Drake's revelations may have embarrassed the feds, but that's not supposed to be illegal.

Filed Under: free speech, nsa, thomas drake, warrantless wiretapping, whistleblowing

Court Seals Unclassified Document In Whistleblower Case... After Gov't Falsely Says It's Classified

from the attack-on-leakers dept

We've discussed how, despite all his talk of "transparency" and the importance of whistleblowers, President Obama has been the most aggressive president ever in terms of attacking any whistleblowers. The administration has brought more indictments for leaking than all other presidents combined. Think about that for a second.

In one such case, against former NSA employee Thomas Drake (accused of leaking NSA info to the press), the feds are now trying to falsely claim that unclassified documents are classified -- which is actually a key point in the legal fight. Slashdot points us to the latest news in which Drake's lawyers submitted some evidence to the court concerning how the NSA classifies documents. Drake's team is arguing that nothing he had in his home or which was sent to the press was "classified," and that the NSA is falsely claiming unclassified works were classified. So here's the issue: the feds asked to court to seal the exhibits, claiming they were classified:

"As grounds [for sealing the records], the information contained within the exhibits derives from NSA. As the holder of the privilege for this information, NSA has classified the documents as 'FOUO', which means 'For Official Use Only.' This means that the information is not for public dissemination. Until such time as NSA downgrades the information to 'Unclassified,' the exhibits should not be publicly filed,"

And, as seems to happen all too often, the judge immediately agreed, sealing the "official use only" filings. Except, here's the thing, contrary to the statement above, "FOUO" documents are, by definition, not classified. As the report linked above points out, under DoD regulation 5200.1-R (pdf) "By definition, information must be unclassified in order to be designated FOUO."

In fact, one "sealed" document, which is still available (pdf) on the Federation of American Scientists web site, quite clearly shows that the document itself is marked unclassified: And, in a way, this actually proves the whole point of Drake's defense team. The government wants to pretend that unclassified documents that he had were classified. And, apparently without any sense of irony at all, it demonstrated its own problem of falsely claiming unclassified documents were classified, by claiming an unclassified document about how the government classifies documents... was classified! (Say that three times fast). What's troubling, of course, is that the court seemed to just accept the claim that this clearly unclassified document was classified and ordered the seal.

Filed Under: classified, leaks, nsa, thomas drake, unclassified, whistleblowers