On Saturday the 10th of March 2012, Matthew Miller, the ex-Director of the Office of Public Affairs for the Justice Department and Attorney General Holder's former spokesperson, posted an article on the Daily Beast asserting that the Obama Administration is right to go after 'leakers' who are not whistleblowers.

The difference between a leaker and a whistle-blower is important. Leaks of classified information can endanger American soldiers and intelligence officers and expose sensitive national-security programs to our enemies. Whistle-blowers expose violations of law, abuse of authority, or a substantial and specific threat to public health or safety.
I agree that the difference is important. As the former NSA senior executive who blew the whistle on massive fraud, waste, abuse and illegalities at NSA, I find Miller's statement eerily Orwellian in its duplicity, doublespeak and deceit regarding the truth of the matter. But exposing violations of law and abuse of authority put me (and several other whistleblowers) in the cross hairs of a multi-year, multi-million dollar ''leak'  investigation that led to a 10 felony count criminal indictment issued against me.

The government even tried to eliminate as admissible or relevant in my case anything related to my whistleblowing before the Court.

During the pendency of my trial, before the government's Espionage Act case against me collapsed in spectacular fashion and all 10 felony counts were dropped - the chief prosecutor, William Welch, even publicly stated for the record that my alleged activity had endangered the lives of soldiers. Nothing could be further from the truth.

And I find the omission of any reference to my case by Miller in his article quite revealing.

He goes on to state:

Furthermore, the Justice Department has the ability to utilize prosecutorial discretion in cases that involve true whistle-blowing. Leaks exposed the previous administration’s warrantless-wiretapping program, which Bush officials argued was an essential national-security tool but many legal scholars saw as a clear violation of law. To this day, no one has been prosecuted for those disclosures, despite one former official confessing on the cover of Newsweek that he was a source.

I was prosecuted for making those disclosures both within and without the government!

They chose to criminalize my exposure and disclosure of government wrongdoing and illegalities (including the NSA completing violating the 4th Amendment when it turned the US into the equivalent of a foreign nation through blanket driftnet electronic surveillance), and then turned the truth of my whistleblowing into treason and marked me as a traitor to my country.

However, the last time I checked the Administration is not above the law and the unitary executive theory of national security in conducting itself behind the veil of secrecy through the illegal abuse of power and policy does not trump the Constitution.

And yet in a followup to Josh Gerstein's Politico blog, Miller reluctantly acknowledges that my case was different.

I think the Drake case raises much harder questions. Unlike the other cases I wrote about, in which I don’t believe legitimate claims of whistleblowing can be made, Drake did seem to be trying to expose actual government waste.  I think the outcome of the case probably shows that it was an ill-considered choice for prosecution, given some of the mitigating factors.  But the solution in such cases can’t be to allow anyone to leak classified secrets to the press.  If so, any employee who believes they have a claim to waste, fraud or abuse could expose any national security program, no matter how important the program and no matter how frivolous the claim.

What prosecutorial discretion?

I was the object lesson case the Obama Administration chose to prosecute and indict very publicly and a case specifically designed to set the floor for imposing the equivalent of an Official Secrets Act in this country and putting me away in prison for many years for blowing the whistle on government wrongdoing and criminality.

In fact, I remain the only one prosecuted and indicted to date for having revealed as a whistleblower the illegal NSA warrantless wiretapping and dragnet data mining program approved by the White House, and for disclosing that there were legal alternatives and superior intelligence means to find legitimate threats after 9/11, but rejected by NSA, precisely because they wanted to violate the law in secret and get away with it with no accountability or adherence to the Foreign Intelligence Surveillance Act.

Thomas Tamm had an indictment hanging over his head until about a year ago, when the government decided he was no longer a target and dropped their case against him.

There have been six prosecutions using the Espionage Act under this Administration by the Department of Justice.

And now an indictment is apparently soon coming down on another whistleblower, John Kiriakou, for having disclosed the US's illegal torture (called enhanced interrogation techniques) program as state policy.

That puts Kiriakou and myself in a very small 'club' - the only two prosecuted to date for having blown the whistle and revealing government illegalities and criminal wrongdoing by the government - conducted under the color and cover of secrecy - for allegedly retaining and disclosing classified state 'secrets' regarding torture and electronic surveillance.

Right after a plea deal was struck in my case back in June 2011, Miller issued the government spin on their case against me in a New York Times piece by Scott Shane.

Matthew A. Miller, a spokesman for the Justice Department, declined to comment on the Drake case but said the prosecutions were based strictly on facts uncovered in investigations, some of which have lasted for several years.

“These are tough cases by their nature,” Mr. Miller said. “But it’s an important principle that people who have access to classified information follow the law and the agreements they have signed to protect that information.” He denied that the prosecutions were designed to deter legitimate whistle-blowing.

Miller was also quoted in a 11 June 2011 New York Times article.
A spokesman for the Justice Department, Matthew A. Miller, said the Drake case was not intended to deter government employees from reporting problems. “Whistle-blowers are the key to many, many department investigations — we don’t retaliate against them, we encourage them,” Mr. Miller said. “This indictment was brought on the merits, and nothing else.”

A case brought against me based strictly on the facts because I was a whistleblower revealing very uncomfortable facts about the government and then was retaliated against on the merits for doing so?

Miller wants to serve as the fawning apologist for the Administration when it comes to leaking, but deflects when the government tried and failed to prosecute me as a whistleblower, while calling it espionage for the purposes of leaking.

Miller goes on to say in his response to Gerstein that

I think the real solution to the questions raised by the Drake case lies in expanding protections under the Whistleblower Protection Act, as the White House has endorsed, so there are more ways for whistleblowers working in the national security field to report any claims and better protections against retaliation.  The White House has said that if legislation fails again, as it did in the last Congress, it will consider administrative actions.

I agree with expanding the protections, but my whistleblower disclosures were already protected communications with the House and Senate Intelligence Committees as well as the Department of Defense Inspector General and other government officials under the Intelligence Community Whistleblower Protection Act of 1998. The government clearly violated my protected communications under the 1st Amendment and instead chose to prosecute me out of sheer retaliation, retribution and reprisal for revealing government wrongdoing.

In addition, it is not a crime to reveal government wrongdoing to a reporter, and then have the government conveniently charge you under the Espionage Act for 'leaking' allegedly classified information. In fact, it is against the law and regulation for the government to use the mantle of national security and secrecy to hide and conceal government wrongdoing and malfeasance, and then wear the cloak of 'classified' to protect themselves from disclosures of the same.

Who is not wearing the clothes here?

The fact remains that the Obama Administration is engaged in an unprecedented war against whistleblowers and the 1st Amendment and using the Espionage Act (a World War I era statute designed to go after spies and not whistleblowers), as a bludgeon to target, investigate, prosecute and indict those revealing government war crimes, abuses of power, illegalities and wrongdoing - both within and without the government.

It has become criminal under this Administration to reveal government wrongdoing and convenient to hide behind the fig leaf of national security and secrecy to conceal the wrongdoing and then claim it is classified and a state secret.

Reminds me of the famous Catch-22 novel by Joseph Heller and the Cathcart defense where the government has the right to do anything and get away with it, when there is nobody to stop them from doing it.

Miller is sending the message that using the 1st Amendment to reveal government wrongdoing - even when you are a whistleblower - is illegal.

This puts the press and their sources firmly in the cross hairs of the government and is a direct assault against one of the foundational freedoms as encapsulated and enshrined by the 1st Amendment.

One could argue that Matthew Miller responded to Gerstein the way he did, because I am the only case to date under the Obama Administration where the government lost - and lost decisively.

So under the Miller theory, if a defendant wins, they are a whistleblower, but until the government loses they are 'leakers' endangering the lives of soldiers and national security?

Going after whistleblowers sends the most chilling of messages by the government - we will hammer you and hammer you good if you speak up or out against us, even when we violate the Constitution - whether it's illegal electronic surveillance or torture or other crimes and wrongdoing we want to conceal behind the fig leaf of classification, while subverting and sabotaging the Constitution in the name of national security.

Is this the country we want to keep??

UPDATE: Ellen Nakashima from the Washington Post just posted an article about Matthew Miller's exchange with Josh Gerstein from Politico and acknowledging the "ill-considered" choice the government made in prosecuting me.

If the government's case was so "ill-considered" (and so deceitfully and maliciously ill-conceived as well, I might add), will they do the proper due process amends under the 1st Amendment in terms of redress of grievances and restore my name, integrity, expenses that made me indigent, lost salary, pension, and also the good name and substance of the other whistleblowers related to my case (Bill Binney, Kirk Wiebe, Ed Loomis and Diane Roark)?

What about the many other government employees and contractors, you don't hear about at all, who were harassed, intimidated, threatened, investigated, coerced, interrogated and even in some cases had their personal effects taken without warrants, or even lost their clearances because of the government's case against me and their personal or professional association with me?

How far is far enough? And when the government goes so far beyond the law with such a travesty of justice, how do you reign them in?

Originally posted to Thomas Drake on Mon Mar 12, 2012 at 04:41 AM PDT.

Also republished by Whistleblowers Round Table.

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