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Recent news coverage of prosecutor William Welch's leadership of the Justice Department's war on whistleblowers reveals that his overzealous and shady tactics were not restricted to his handling of  the botched prosecution of late-Senator Ted Stevens, a case that landed Welch and his team in a pile of -- still ongoing -- criminal investigations.  

Welch's tactics, at best idiosyncratic and ineffective and at worst unethical, expose the government's retaliatory motive in pursuing criminal convictions for whistleblowers, and betray weaknesses in the government's cases.

Welch's behavior in two recent so-called "leak" prosecutions belie the government's ulterior motives.

Prosecution of former CIA Officer Jeffery Sterling

First, Welch renewed the Bush-era grand jury subpoena against Pulitzer Prize-winning journalist Jim Risen to reveal a source, a dubious step the government is only supposed to take if there is no other way to get the information.  Risen fought the subpoena, and U.S. District Judge Leonie M. Brinkema quashed it in November 2010 because the Justice Department already knew that Sterling was Risen's source.

Again side-stepping the U.S. Attorney's Manual and his own state bar ethics Rule 3.8(e), as the Washington Post and St. Louis Beacon reported, Welch also subpoenaed Sterling's former attorney, who testified before the grand jury.  

The chicanery in Sterling's case did not stop with subpoenas. Politico reported that Welch more recently put forth an argument in support of Sterling's detention (that Sterling's defense called "laughable") contending that Sterling's alleged revelations to Jim Risen made Sterling "more dangerous" than spies selling secrets to hostile foreign nations. Judge Brinkema again spanked Welch, and released Sterling on bond:

Brinkema said she doubted the danger of release was as great as the government suggested, given that Sterling has been free since the time of the most recent alleged leak, in 2005 or 2006. . . .
"If the government had a real concern, the government could have indicted this case much sooner than it did," Brinkema said from the bench.

Prosecution of former NSA Official Thomas Drake

Welch's shenanigans continued in the case of NSA whistleblower Thomas Drake, in which Welch presented the unprecedented argument that for national security and "trustworthiness" reasons, Welch was entitled to see the names of the defense team's experts long before the rules required the defense to reveal them.  The defense rightly identified Welch's attempt as "a transparent attempt to gain a tactical advantage of the defense."  And, Welch received another smack down from another federal Judge, who told Welch he was on "shaky ground" when Welch could not name a single federal judge that agreed with him.

More disturbing are the recent revelations in The Washingtonian that a draft indictment of Drake mentions four unindicted co-conspirators not mentioned in the actual indictment. The four just happen to be the signatories on a letter to the Department of Defense Inspector General [DoD IG] complaining that senior NSA leaders had "defrauded the American taxpayer of hundreds and hundreds of millions".

The Washingtonian notes that

Drake didn’t formally sign on to the letter [to the DoD IG], but he provided information to the investigation while he was still an NSA employee.


According to sources familiar with the case, the FBI thought Drake might be a source for a December 2005 article in the New York Times that revealed a possibly illegal program of electronic surveillance in the United States . . . Drake has never been accused of being a source for the Times article. At least one former government official, Thomas Tamm, has said publicly that he talked about the secret NSA program with two Times reporters. Tamm hasn’t been indicted.

Even more suspicious than the draft indictment is the actual indictment of Drake, in which,

The government accuses Drake of storing classified information about NSA intelligence programs on his home computer. And while the indictment spells out in detail how Drake allegedly gave that information to the reporter, he’s not charged with doing so.

There is a reason Drake's is not a normal prosecution: it is retaliatory.

If the government had strong cases against whistleblowers for actual criminal activity, we would not see the Justice Department presenting bizarre unsupported arguments, draft indictments revealing wild attempts pursue weak cases, and laughable accusations about how "dangerous" whistleblowers are.

Originally posted to Jesselyn Radack on Wed Jan 26, 2011 at 06:26 AM PST.

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