Tuesday, December 17, 2013

Obama's Dubious Legacy: Intimidation of Whistle-Blowers using the Espionage Act?

Obey- Uncle Samby Nomad

It's a sad fact of political reality. Candidates' views change once they enter into office and many of their noble aspirations seem to be left at the door once they take charge. It is related, no doubt, to practicalities of modern politics. Until one is actually in the hot seat, it is easy to be idealistic and pedantic. 

The Promise of Open-Sourced Government
Unfortunately, looking over Obama's record, it is hard not to be more than a little disappointed, with the president's own turnaround, especially in regards to his approach to whistle-blowers. One might have expected people like Cheney and all his cronies to go after "enemies of the state" with a sinister vindictiveness. (He was after all the closest Darth Vader ever got to being president.)
But Obama? This was the candidate that promised a change.

Back in November 2007, at a speech on the Google campus, Obama said what geeky Google-ites wanted to hear, that he would use technology to make government more accessible to the public. He would, he told the crowds as president he would insure that government information became more freely available.

And as a senator, Obama also pushed for and co-sponsored legislation in late 2007 that strenghten the Freedom of Information Act, initiated under Carter, and practically destroyed under Bush.
As outline in his campaign speeches, Obama planned to embrace cutting edge tech so that Americans could have access to administration records.
Among Obama’s proposals are the creation of internet databases for lobbying reports, ethics records and campaign finance filings as well as a “contracts and influence” database to track federal contractors’ spending and lobby efforts.
 What we got was Citizens United.
There will also be a readily available online database of corporate tax breaks, the posting of non-emergency legislation on the White House web site for public view and comment and cabinet-level town hall meetings on broadband.
I suppose, it is fair to ask, is open-sourced government even possible? It's never been tried but that's not to say, some aspects can't be applied.
In any case, such revolutionary solutions were certainly vote-catching after long and painful years in which, under the Bush/Cheney regime, politically-damaging information could easily be classified and never see the light of day.
As Charles Davis, executive director of the National Freedom of Information Coalition, said at that time:
“The openness community will expect a complete repudiation of the Ashcroft doctrine.” 
The Ashcroft Doctrine allowed the Bush administration to withhold information requested through FOIA whenever legally possible. (Ironic, isn't it? that the link to Department of Justice web site explaining the Ashcroft doctrine leads nowhere? We can't see what it was so we can't compare it to what has replaced it.)

It didn't take long for Obama to go into secrecy mode soon after becoming president. It might have been dismissed as the usual campaign promises or of a politician biting off quite a bit more than he could chew regarding what he could actually do if elected.
However, things were worse than that. Change might have happened but it was not quite the change the voters had been promised.

A Zeal in Silencing
The administration's record of punishing anybody who revealed politically damaging information was shameful. Its use of the Espionage Act, which has long been a subject of dubious constitutionality -even in times of imminent threat to the nation- has been unprecedented.

Mother Jones states the case against the Obama administration like this:
The Obama administration has been cruelly and unusually punishing in its use of the 1917 Espionage Act to stomp on governmental leakers, truth-tellers, and whistleblowers whose disclosures do not support the president's political ambitions. As Thomas Drake, himself a victim of Obama's crusade against whistleblowers, told me, "This makes a mockery of the entire classification system, where political gain is now incentive for leaking and whistleblowing is incentive for prosecution."
The Obama administration has charged more people (six) under the Espionage Act for the alleged mishandling of classified information than all past presidencies combined. (Prior to Obama, there were only three such cases in American history, one being Daniel Ellsberg, of Nixon-era Pentagon Papers fame.) The most recent Espionage Act case is that of former CIA officer John Kiriakou, charged for allegedly disclosing classified information to journalists about the horrors of waterboarding. Meanwhile, his evil twin, former CIA officer Jose Rodriguez, has a best-selling book out bragging about the success of waterboarding and his own hand in the dirty work.
Obama's zeal in silencing leaks that don't make him look like a superhero extends beyond the deployment of the Espionage Act into a complex legal tangle of retaliatory practices, life-destroying threats, on-the-job harassment, and firings.
classified spying
That's a harsh judgment and perhaps less than fair, since in most of the cases, the target of whistle-blower punishments were people who revealed things about the previous administrations. For example, former CIA employee Jeffrey Sterling, charged in December 2010 for releasing information about the failed Project Merlin from the Clinton administration. Stephen Jin-Woo Kim, also charged under the Espionage Act also in 2010 revealed to a reporter that North Korea might test a nuclear bomb
But is this news- as distressing as it is- all that (no pun intended) explosive or earth-shattering? So outside of the personal ambitions of individuals in the Justice Department, what's the fuss all about?

A Punitive Strategy
Reviewing the cases of the six individuals charged under the Espionage Act, the pattern is clear. The purpose of the indictments and arrests was not to restrict information vital to our national defense or even ongoing covert operations. The prosecutions did not save lives, as far as can be determined. 

The reason for this heavy-handedness seems to have been quite different.

It was to send a message to anybody who had taken candidate Obama's promises about open government seriously. In a word, it was about intimidation. And with threats of long-term imprisonment, public humiliation (with the help of friendlies in the press corp), and the expense of long court proceedings, intimidation by government prosecutors could indeed be extraordinarily "chilling." 

In effect, the message was: Obey the rules and not your conscience.

As Shamai Leibowitz, who pled guilty to leaking information about a possible Israeli strike on Iran, told one source:
“The ink was not even dry on my plea agreement before they ran to the media with a press release, announcing to the whole world how the 20-month prison sentence will teach me – and any future whistle-blowers – a great lesson.”
Prosecutors seem to be saying to potential whistle-blowers, "Forget openness. Speak to reporters at your own risk. If you do so, we will come after you and we will punish you." 

But that's not the message that Candidate Obama was promoting during the campaign of 2008. And, still worse, it bore no resemblance to the advice he was giving other nations like Iran and China when it came to openness and human rights.

Journalism OrwellThis new message was also for the crusading journalists - your habit of criticizing American policies, both past and present- has come to an end. Journalism must have government approval for now on. (Some would say that it had already required corporate approval.)

If Obama did not personally signed off on this policy, he has allowed the Justice Department to proceed without any apparent hindrance. The use of the Espionage Act was attack on the freedom of the press and free speech itself.

As Leibowitz noted:
“This punitive strategy, this desire to demonize and imprison people at all costs, is so wrong and misguided that it backfired.”
If that was the strategy, then in the case of Snowden it has backfired rather spectacularly. (State Department officials are still fumbling and indecisive about exactly how to handle the matter.) 
And in the case of Bradley Manning, this questionable treatment of the accused was seen, by many of Obama's core supporters, as a betrayal of all that he supposedly stood for. It was something we had expected to see from the previous administration, not this one.

As  Robert Naiman, writing for TruthOut points out, this type of abuse of the Espionage Act 
allows the government and its media apologists to poison public debate by throwing around words like "traitor."
True, instead of discussing the material Snowden divulged- the rights or wrongs of world wide surveillance in an age of weapons of mass destruction, we are debating whether Snowden is a hero or traitor.

Ultimately this overzealous desire to punish and silence individuals who have acted on their conscience - at great risk- has brought only shame and disrepute to an administration that had come to power with a promise of a revolutionary change and openness. 

Will this be Obama's sad legacy? Let's hope not. He still has time left to change that possibility but the question is whether he has the backbone to do so.