Open-government groups, like my own (the Government Accountability Project), are aghast by Obama's recent crack down on whistleblowers--coming from a President who pledged maximum transparency. In the past 6 weeks, people being subpoenaed, arrested, indicted or convicted include:
Thomas Drake (former National Security Agency official)- Indicted for allegedly retaining classified information that led to a series of newspaper articles on NSA's billion-dollar mismanagement of a program to conduct secret surveillance with maximum privacy intrusion.
James Risen (New York Times repoter)- Justice Department reissued Bush-era grand jury subpoena for his sources for a chapter of his 2006 book, State of War, which focuses on a CIA-led ruse to disrupt Iranian nuclear weapons research.
Shamai Leibowitz (FBI linguist)- sentenced to 20 months in prison for giving classified information to a blogger.
Bradley Manning (Army Intelligence Analyst)- arrested for allegedly disclosing to Wikileaks classified video footage of a controversial helicopter attack that killed unarmed Iraqi civilians, including two Reuters reporters, and injured two children.
President Obama is fast on his way to sending a record number of whistleblowers to prison.
Both Bush and Obama, and any Administration for that matter, will justify criminal action because the material at issue is CLASSIFIED NATIONAL SECURITY INFORMATION. But what no one is talking about is the 800-pound gorilla in the room: what if "classified" information (which skyrocketed during the Bush administration) evidences illegality?
The government can smear the whistleblowers all they want as being a) vindictive, b) unstable, c) disgruntled, or d) all of the above. But under whistleblower protection laws, the motives--pure, impure, indifferent--don't matter. (By the way, Liebowitz stated, "I worked at the FBI and saw things that I considered a violation of the law." Tamm explained
I thought this [secret program] was something the other branches of the government--and the public--ought to know about . . . If somebody were to say, who am I to do that? I would say, 'I had taken an oath to uphold the Constitution.' It's stunning that somebody higher up the chain of command didn't speak up
when he finally outed himself as one of the New York Times' sources after being under criminal investigation for years. Manning reportedly said that he came across material that
contained incredible things, awful things . . . that belonged in the public domain, and not on some server stored in a dark room in Washington, D.C.
Big mistake, kiddo.)
What matters is that the whistleblower has a reasonable belief that the government is engaging in fraud, waste, abuse or illegality. I would also argue the public has an interest in such information. I also submit that there needs to be a clear, workable and meaningful process for making whistleblower disclosures of information that has been deemed classified.
The more incendiary the information, the more likely it is going to be classified or otherwise cloaked in secrecy. Joe Darby "leaked" the explosive photos of clearly illegal torture at Abu Ghraib. Tom Tamm was one of the "leakers" of Bush's clearly classified and clearly illegal warrantless wiretapping program. Mary McCarthy "leaked" information to a reporter about clearly classified and clearly illegal "black site" secret prisons in Eastern Europe.
What was the public interest value? Extremely high. These stories sparked national, and often worldwide debate. The reporters of the warrantelss wiretapping story (Eric Lichtblau and Jim Risen) and the secret prison story (Dana Priest) all won Pulitzer Prizes for their reporting.
What was the harm to national security? Embarrassment to the United States does not count.
Some things are properly secret. I do not think nuclear weapon codes, troop movements, or the identities of undercover CIA agents should be public. But if Obama has a pet-peeve about leaks, that's a personality trait. If he is trying to curry favor with the intelligence community, that's political. But these justifications certainly should not be disguised as any kind of "justice." And there's something fundamentally flawed with Obama's "look forward, not backwards" Justice Department criminally investigating and prosecuting people who have exposed massive government wrongdoing, and NOT prosecuting people who committed massive government wrongdoing.