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The Washington Post reported on possible candidates to replace long-time FBI Director Robert Mueller. Three of those candidates share a troubling enthusiasm for prosecuting so-called leakers, who are usually whistleblowers.  

It's bad enough the Central Intelligence Agency (CIA) is being run by the former Rendition, Detention and Interrogation (RDI - read: torture) team. FBI Director candidates Lisa Monaco, Brennan replacement as counterterrorism adviser and former head of the National Security Division at the Justice Department; Patrick J. Fitzgerald, former U.S. attorney in Chicago; and Neil MacBride, U.S. attorney for the Eastern District of Virginia all have "leak" baggage that should give the public pause about them heading the FBI.

Monaco touted the Obama administration's aggressive policy and record-breaking number of Espionage Act prosecutions against whistleblowers when testifying before Congress in 2011.

While Fitzgerald handled the investigation into the leak of Valerie Plame's name (a disclosure that was not whistleblowing, as I explained here), he also headed the years-long investigation into the ACLU and National Association of Criminal Defense Lawyers (NACDL) attorneys defending Guantanamo prisoners. That investigation eventually landed on CIA whistleblower John Kiriakou, who is the only CIA official to go to jail in relation to the Bush-era torture program despite the facts that Kiriakou refused to participate in torture and helped expose it. (Read Steve Coll's New Yorker article for details on the disconcerting way the investigation developed).

When Fitzgerald spontaneously abandoned the Kiriakou case, MacBride picked it up with renewed vigor, using the Kiriakou case to complete a duo of Espionage Act prosecutions. MacBride also prosecuted CIA officer Jeffery Sterling (and in the process has been fighting to compel New York Times reporter and author Jim Risen to testify about his sources).

The concerns about the candidates are even greater considering that the new Director will follow Mueller, whose in his 12-year term (extended beyond the 10-year limit by special congressional authorization) transformed the FBI from a domestic law enforcement organization - as is its mandate - to an intelligence organization and "worldwide counterterrorism operation," often at the cost of privacy and individual liberty. (See e.g. John Walker Lindh, countless surveillance tactics that failed to respect privacy, FBI infiltration of mosques, investigations of peace groups, etc.)

Better choices would be Merrick B. Garland, chief judge of the U.S. Court of Appeals for the D.C. Circuit, who at least has had to account for his actions in public and published court opinions or James B. Comey, deputy attorney general in the George W. Bush administration, who showed some resistance to the surveillance state when acting as attorney general during the dramatic showdown at former Attorney General John Ashcroft's hospital bed, he refused to reauthorize Stellar Wind, the NSA's unconstitutional domestic spying program.

The new FBI Director should steer nation's law enforcement agency toward enforcing the law rather than stretching it to give the Executive the most power, and toward using statutes like the Espionage Act as they were intended - to prosecute spies - and not to persecute whistleblowers like former National Security Agency senior executive Thomas Drake and John Kiriakou.

As a post script - one task for the new FBI Director should be to resolve an issue I blew the whistle on over 10 years ago while working as a Justice Department ethics adviser: whether the FBI could prosecute terrorist suspects after having held and interrogated (and sometimes tortured) them for days, weeks or years without constitutional protections like access to counsel and Miranda warnings.

Recent reports about the case of terrorist suspect Ahmed Abdulkadir Warsame indicate that the Justice Department and FBI are still engaged in hand-wringing over whether terrorist suspects should be read Miranda warnings out of some unrealistic fear that Mirandizing the suspects will prevent intelligence gathering. Warsame's case actually demonstrates the opposite: that giving Miranda warnings and a suspect's cooperation are not mutually exclusive. The government interrogated Warsame for months before reading him his rights, and after he heard them, he kept cooperating. If interrogators had Mirandized Warsame from the start, they could have used all of that intelligence against him at trial - as well as to stop future attacks - instead of having to bring in a "clean team" (a.k.a. taint team) to seal off the information collected before the Miranda warnings. Setting aside the most persuasive argument that the Constitution guarantees that criminal suspects have the right to remain silent and the right to counsel, advising suspects of their rights enables the government to prosecute them in federal court - a venue with a track record of terrorist convictions that far surpasses that of the constitutionally-inferior and ineffective Gitmo military commissions. Giving Miranda warnings makes sense from both a constitutional and a law enforcement perspective.

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