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The latest in the Justice Department's war on whistleblowers again demonstrates the government's vast overreaching and unending animus toward employees who bring to light waste, fraud, abuse, and illegality.

Politico reports on the latest in the prosecution against former State Department employee Stephen Kim, accused of leaking information to Fox News reporter Jim Rosen:

Kim's lawyers also claim that the FBI set a "perjury trap" by asking Kim about meetings with a journalist, apparently Rosen, when the FBI already knew about the meetings.

This is more evidence of the retaliatory motives behind the recent spate of "leak" prosecutions under the Espionage Act. Even when the government already knows who "leakers" are, the Justice Department employs underhanded, entrapment-like tactics to bolster weak cases against them. With striking and disturbing consistency, the government overreaches when using the criminal justice system to attack and silence whistleblowers.  

Like Kim, the Justice Department continued to take rare - and ethically questionable - steps to go after former CIA employee Jeffery Sterling, accused of leaking to Pulitzer-Prize-winning journalist Jim Risen.  Overzealous "leak prosecutor" William Welch (already disgraced from the botched prosecution of late-Senator Ted Stevens), used entrapment tactics eerily similar to those used in Kim's case and obviously not designed to determine the identity of a leaker.  Welch subpoenaed Jim Risen to reveal his source (the subpoena was quashed), and subpoenaed Sterling's former attorney to testify before the grand jury despite the fact that the government already suspected Sterling had leaked to Risen. Welch's overkill continued when he argued (unsuccessfully) for Sterling's continued detention, claiming that Sterling was "more dangerous" than a spy selling secrets to a foreign country, despite the fact that Sterling had been free for years after the alleged leak occurred.

Former NSA official Thomas Drake suffered the same sort of government overkill. Drake was targeted as part of the years-long (and fruitless) investigation into the sources for the  December 2005 New York Times article that revealed the Bush warrantless wiretapping scandal.  Yet, while two admitted sources for the article (Thomas Tamm and Russell Tice) have not been indicted, Drake - who had nothing to do with the New York Times article, and has never been accused of being a source - is the only person indicted as a result of the multi-million dollar investigation.  Drake's reporting massive NSA waste to the Department of Defense Inspector General was enough to make him a target of the leak investigation.  There's nothing more sinister than the government using Drake's legitimate whistleblowing disclosures as an excuse to target and prosecute him.

Criminalizing and detaining whistleblowers and subpoenaing attorneys and journalists are the devices of dictatorships, not free societies, especially those with a First Amendment and especially those with a President who so likes to preach values of openness and transparency.

Though they are all charged under the Espionage Age, none of these defendants engaged in espionage.  The Justice Department's priorities are disastrously out of whack.  Perhaps the FBI should spend less time hunting down and prosecuting whistleblowers, and more time focusing on how to prevent violent tragedies like the Ft. Hood shooting.

Originally posted to Jesselyn Radack on Fri Feb 04, 2011 at 06:33 AM PST.

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Comment Preferences

  •  This is a Serious Question (0+ / 0-)
    Don't investigators frequently ask questions that they already know the answers to?  I admit my experience with actual FBI investigations is mostly limited to television, but they always talk about how they want to get someone "on the record" saying something...

    I mean... they frequently ask your name at the beginning of the interview.  Is that a "perjury trap" if you lie about your name?

    Seriously: "They caught me in a sneaky perjury trap by asking a question they knew I was going to lie about the answer to?"  Doesn't that sound like someone setting a "Shoplifting Trap" by leaving stuff lying around they knew you were going to steal?

    •  They do, but the difference is (3+ / 0-)

      with Kim, the purpose was not to solve a crime.  The government used the interview to pile on the charges.
      Kim's attorneys clarify the difference in recent court filings:

      Congress did not enact the statute to criminalize suspects' false denials of wrongdoing in the course of informal interviews initiated by government agents. . . . Where the government asks a suspect a question about a known fact and then prosecutes that suspect for mere denial of the fact-in contravention of the Justice Department's own policy-it creates a presumption that there was such a "premeditated design to entrap the suspect in a lie. Such conduct is contrary to a system of criminal justice that is "accusatorial and not an inquisitorial system-a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth. Rogers v. Richmond 365 US. 534 541 (1961).

      The Canary in the Coalmine is available for purchase at

      by Jesselyn Radack on Fri Feb 04, 2011 at 06:52:37 AM PST

      [ Parent ]

      •  Thanks for the Clarification (1+ / 0-)
        Recommended by:
        Caoimhin Laochdha
        That does make sense... the article said there were two charges against him... perjury plus the actual leak related charge.  If the meeting they were asking about wasn't related to the other charge, it does seem pretty cut and dried that it meets the definition you describe.
  •  thanks for staying on this Jesselyn (1+ / 0-)
    Recommended by:
    Caoimhin Laochdha

    This will turn out to perhaps be the worst legacy of the Obama Administration.

    Either a) the "loyal bushies" have metastasized in the DOJ or b) Holder/Obamba are down with these prosecutions.

    If it is a, it shows that Holder is incompetent, if is b then Holder/Obama are worse than Alberto Gonzales/Bush, at least with regard to whistleblowing.

    The next Republican Administration will do worse things, then they will defend it by saying, "well, even the ultra-liberal Obama Administration prosecuted whistleblowers with zeal..."

    And that is my biggest complaint.  On so many fronts, including this one, President Obama is legitimizing the worst aspects of rightwing bullshit.  Things like prosecuting whistlblowers while ignoring actual war crimes has become the new normal.

    I'm not sure what can be done to stop it.  Very disappointing.

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