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When Thomas A. Drake, a former National Security Agency offical, was indicted a few weeks ago, there was a deafening silence from the small group of people most qualified to speak about it: those of us who've been criminally investigated for leaking.  That's because many of us are still under a cloud.

Today I have an Op-Ed in the L.A. Times on this subject, which hits really close to home.

Here's a news flash: Leaking is different than whistleblowing.  Whistleblowers have brought you the biggest stories of the past decade: Abu Ghraib, warrantless wiretapping, torture, black sites. Whistleblowing make public information of significant public importance, which reveals illegal, unconstitutional and dangerous conduct, often at the highest levels of government.  Leaking is cowardly, often vengefuly, and and of no public value.

In 2002, I became the arget of a pretextual leak investigation stemming from American's first terrorism prosecution after 9/11.  

I was an ethics attorney at the Justice Department.  The prosecutor in the case of "American Taliban" John Walker Lindh conacted me.  He said:

As you know, there's a discovery order for all Justice Department correspondence related to the Lindh interrogation.  I have to of your e-mails and wanted to make sure I had everything.

I was concerned because 1) I had no idea there was a discovery order (such information is usely widely disseminated to anyone who might possibly have responsive documents), and 2) I knew I had written way more than two e-mails.

When I went to check the hard-copy file, it had been purged.  What had once been a thick stack of paper was reduced to a few innocuous pages and a fax cover sheet from my boss to senior Department officials. Glaringly absent were my e-mails finding that the FBI had committed an ethics violation in its interrogation of Lindh.

I painstakingly resurrected the e-mails, gave them to my boss, and resigned.  As Lindh's prosecution barrelled rapidly towards trial, and it appeared from what the Justice Department was saying that my e-mails still had not been turned over to the court, I gave them to the media.

This unleashed a brutal "leak investigation" that had nothing to do with ascertaining why someone would disclose government documents, and everything to do with plugging the leak.

The bigger the crime, the more likely that the evidence of it will be "classified," "privileged," or subject to one of the more-than-150 hybrid secrecy categories that ballooned during he George W. Bush administstration.  Although a judge later deemed my e-mails non-classified, their unclassified status didn't prevent the Justice Department from criminally investigating me, referring me to the state bars in which I'm licensed and putting me on the "No-Fly" List.

I hate the word "leak." I did not leak.  Mr. Drake did not leak.  He made valid disclosures revealing the failings of several major NSA programs taht use computers to collect and sort intelligence.  The mistakes cost billions of dollars.  He also described how the agency had rejeced a program that would collect communications while protecting American's privacy--allegations very similar to those made by Thomas M. Tamm, the forer Justice Department lawyer who revealed the NSA's secret surveillance of Americans.

Tamm's disclosures were clearly in the public intererk interest.  He wond the Ridenhour Prize for Truth-Telling and the New York Times reporters who broke the story won the Pulitzer Prize.  My disclosures and Tamm's disclosures evidenced a violation of law, fraud, waste and abuse--the very definiton of a protected disclosure under the Whistleblower Protection Act.

Too often, the terms "leaking" and "whistleblowing" are used synonymously to denote the public disclosure of information hat is otherwise secret.  Both acts have the effect of damaging the subject of the revelation--often the government.  Supposedly the whistleblower law protect the disclosure of information that a government employee reasonably believes shows fraud, waste and abuse, but far too often whistleblowers are retaliated against, with criminal prosecutions fast becoming the sharpest weaponse in the government's arsenal.

In contrast, when Lewis "Scooter" Libby, Dick Cheney's Chief of Staff, unmasked voert CIA operative Valerie Plame, he was not trying to disclose evidence fo wrongdoing.  Quite the opposite.  He put at risk national security and people's lives to undermine a critic.  He was trying to punish Joe Wilson by outing his wife.  Libby was leaking, not whistleblowing.  His disclosure had no intrinsic public value and he was rightly prosecuted and convicted.

The billions of dollars wasted on modernizing the NSA's vast, secret, and too often illegal eavesdropping system is what needs to be investigated, not Mr. Drake.

Originally posted to Jesselyn Radack on Tue Apr 27, 2010 at 04:23 AM PDT.

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