A surprising war on leaks under Obama

By Thomas Drake

and Jesselyn Radack

When President Obama took office, federal employees who had exposed wrongdoing or were considering doing so had reason for hope. Eight years of the Bush administration's relentless retaliation against whistle-blowers had ended, and Obama spoke encouragingly of transparency and due process.

Since then, the administration has taken some positive steps for whistle-blowers, most notably in (unsuccessfully) advocating legislation to protect them and in loosening the government's grip on public information. However, its treatment of national-security and intelligence whistle-blowers - arguably the ones we need most - has been brutal. It has pursued multiple prosecutions of such whistle-blowers on espionage charges.

As prominent whistle-blowers on matters of national security, we have experienced the crackdown firsthand.

Each of our cases began shortly after 9/11. One of us (Radack) warned the Justice Department against interrogating "American Taliban" John Walker Lindh without an attorney. She later exposed the FBI's ethics violations in deciding to proceed, its barbaric treatment of him, and the mysterious disappearance of evidence of the warning from DOJ files.

The other (Drake) exposed billions of dollars in waste, mismanagement, and malfeasance at the National Security Agency, epitomized by an expensive surveillance program that was ultimately canceled.

Neither of us knew we had stumbled on and disrupted the embryonic stages of two of the most controversial policies of George W. Bush's administration: torture and secret surveillance. The government attempted to justify both through a theory of expansive presidential power, enabled by a state-secrets doctrine that was used to evade judicial review.

We both complained through internal channels - our supervisors and respective inspectors general - and, when that failed, made the difficult choice to go to the press. Then we became targets of federal criminal investigations into the leaks. In effect, for exercising our First Amendment right to speak to reporters about issues of public concern - revealing only unclassified information - we were designated traitors and enemies of the state.

Our "crimes" amounted to embarrassing the government by exposing high-level corruption, incompetence, and illegality. Neither of us was ever even alleged to have harmed national security.

When the Obama administration took office, each of us hoped that reason would prevail and the persecution would stop. This wasn't from reading too much into Obama's statements. His transition office's website specifically addressed whistle-blowing, saying: "Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled."

Obama's actions have not matched those words. His administration's reaction to national-security and intelligence whistle-blowers has been even harsher than the Bush administration's was.

So what changed in our particular cases under Obama? For Radack, nothing: She's still twisting in the wind as to a referral to the District of Columbia Bar and her placement on the no-fly list.

For Drake, things got worse: He was indicted under the Espionage Act some 15 months after Obama was sworn in. The charges - 10 felony counts entailing up to 35 years in jail - ultimately crumbled just days before the trial was set to start. After pleading guilty to a minor misdemeanor, Drake was sentenced last month to community service and a year of probation.

The case is seen in the legal community as a bellwether of the DOJ's novel use of the Espionage Act against "leakers." At least four other whistle-blowers have been similarly charged.

For a president who vowed to look forward and not backward when it came to investigating torture and warrantless wiretapping, it is rank hypocrisy to resuscitate such stale Bush-era cases against disclosures that served the public interest and did not harm national security.

The Espionage Act was meant to help the government go after spies, not whistle-blowers. Using it to silence public servants who reveal government malfeasance is chilling at best and tyrannical at worst.

This administration's attack on national-security whistle-blowers expands Bush's secrecy regime and cripples the free press by silencing its most important sources. It's a recipe for the slow poisoning of a democracy.