Aletho News

War on whistle-blowers intensifies

By Glenn Greenwald | May 25, 2010

AP Photo/Charles Dharapak

In this March 19, 2010, file photo, President Barack Obama speaks at the Patriot Center at George Mason University in Fairfax, Va.

The Obama administration’s war on whistleblowers — whose disclosures are one of the very few remaining avenues for learning what our government actually does — continues to intensify.  Last month, the DOJ announced it had obtained an indictment against NSA whistleblower Thomas Drake, who exposed serious waste, abuse and possible illegality.  Then, the DOJ re-issued a Bush era subpoena to Jim Risen of The New York Times, demanding the identity of his source who revealed an extremely inept and damaging CIA effort to infiltrate the Iranian nuclear program.  And now, as Politico‘s Josh Gerstein reports, an FBI linguist who leaked what he believed to be evidence of lawbreaking is to receive a prison term that is “likely to become the longest ever served by a government employee accused of passing national security secrets to a member of the media.”  As Gerstein explains:

[I]t reflects a surprising development: President Barack Obama’s Justice Department has taken a hard line against leakers, and Obama himself has expressed anger about disclosures of national security deliberations in the press. . . .

“They’re going after this at every opportunity and with unmatched vigor,” said Steven Aftergood of the Federation of American Scientists, a critic of government classification policy. . . .

Some experts said the administration and the Justice Department may be trying to appease the intelligence community after angering many by releasing the so-called torture memos and by reopening inquiries into alleged torture by CIA personnel. Others said intelligence personnel are terrified by outlets like Wikileaks, on which classified information can be posted without any meaningful chance for officials to argue for the withholding of details that could damage U.S. intelligence efforts.

Notably (and unsurprisingly), the article quotes the neocon Gabriel Schoenfeld — who spent years demanding that the Bush DOJ criminally prosecute whistleblowers and even journalists responsible for stories such as the NYT‘s NSA eavesdropping revelation, and who then wrote a whole book arguing for greater government secrecy — heaping praise on the Obama DOJ:

“I think it’s remarkable,” said Gabriel Schoenfeld, a fellow at the conservative Hudson Institute who urged prosecution of The New York Times for publishing details of the Bush administration’s warrantless wiretapping program in 2005. “This is the administration that came in pledging maximum transparency. Plugging leaks is … traditionally not associated with openness”. . . .

“If Thomas Drake is convicted and sentenced to jail, this will be the first president to send two leakers to prison in his term in office. That’s never happened before,’ said Schoenfeld, author of the book “Necessary Secrets.” “You wouldn’t have expected the Holder Justice Department to be particularly hawkish in these matters.”

Schoenfeld was frequently critical of what he considered to be the Bush DOJ’s lackadaisical attitude toward punishing whistleblowers, but he is obviously pleased with the Obama administration’s aggression in that regard.

It isn’t hard to see why Obama despises leaks.  Just look at the front page of The New York Times today, which details a secret order from Gen. David Petraeus last fall ordering vastly increased Special Forces operations in a variety of Middle Eastern countries, including “allies” such as Saudi Arabia and Yemen, and “enemies” such as Iran and Syria.  As Iran experts Flynt Leverett and Hillary Mann Leverett contend, this constitutes, at the very least, “the intensification of America’s covert war against Iran.”  That is how we also learned of what is, in essence, a covert war in Yemen as well (not to mention the covert war in Pakistan).  Most of what our Government does of any real significance happens in the dark.  Whistleblowers are one of the very few avenues we have left for learning about any of that.  And politicians eager to preserve their own power and ability to operate in secret — such as Barack Obama — see whistleblowers as their Top Enemy.

Hence, we have a series of aggressive prosecutions from the Obama administration of Bush era exposures of abuse and illegality — acts that flagrantly violate Obama’s Look Forward, Not Backward decree used to protect high-level Bush administration criminals.  As John Cole has suggested, perhaps if these whistleblowers had tortured some people and illegally eavesdropped on others, they would receive the immunity that Obama has so magnanimously and selectively granted.  Instead, they merely exposed secret government corruption and illegality to the world, and thus must be punished.

While it’s true that leaks can be both damaging and illegal, these prosecutions are occurring without any showing whatsoever of harm to national security, and with ample evidence that they were undertaken to expose high-level wrongdoing.  Some secrets are legitimate, but the balance has swung so far in the direction of excess secrecy that it’s extraordinary to watch the Obama administration move the anti-whistleblower persecution far beyond what the Bush administration did.  And as Hilary Bok argued back in 2008 when the Right was demanding that NSA whistleblower Thomas Tamm be prosecuted: while it is generally preferable for whistleblowers to invoke the internal systems that exist rather than leak to the media, such an expectation is misguided under the circumstances that have prevailed for the last decade:

But there’s one big exception to this rule: when the system has itself been corrupted. When you’re operating within a system in which whistle-blowers’ concerns are not addressed — where the likelihood that any complaint you make within the system will be addressed is near zero, while the likelihood that you will be targeted for reprisals is high — then no sane person who is motivated by a desire to have his or her concern addressed will work within that system.

What makes this trend of escalated anti-whistleblower activity particularly notable is that Obama, during his career in the Senate and when running for President, feigned serious support for whistleblowers.  Today, Bush DOJ whistleblower Jesselyn Raddack — while pointing out that “Bush harassed whistleblowers mercilessly, but Obama is prosecuting them and sending them to jail” — notes that Obama previously made commitments like this one (click on image to enlarge):

All of that led to the widespread perception that the vital act of whistleblowing would, under an Obama administration, be protected rather than persecuted.  This Washington Post article from December, 2008, was typical and reflects what Obama led people to believe:

As the Post article summarized:  “there is plenty of evidence to make whistleblower advocates think the future for their issue will be better than its past.”  I think they have now been decisively disabused of such expectations.  The Most Transparent Administration Ever seems to despise nobody quite as much as those who exposed Bush era corruption and lawbreaking, all with an eye towards deterring anyone who might do the same during this administration.

May 26, 2010 Posted by aletho | Civil Liberties, Full Spectrum Dominance, Progressive Hypocrite | Leave a comment

Obama wins the right to detain people with no habeas review

By Glenn Greenwald | May 21, 2010

Few issues highlight Barack Obama’s extreme hypocrisy the way that Bagram does. As everyone knows, one of George Bush’s most extreme policies was abducting people from all over the world — far away from any battlefield — and then detaining them at Guantanamo with no legal rights of any kind, not even the most minimal right to a habeas review in a federal court.  Back in the day, this was called “Bush’s legal black hole.”  In 2006, Congress codified that policy by enacting the Military Commissions Act, but in 2008, the Supreme Court, in Boumediene v. Bush, ruled that provision unconstitutional, holding that the Constitution grants habeas corpus rights even to foreign nationals held at Guantanamo.  Since then, detainees have won 35 out of 48 habeas hearings brought pursuant to Boumediene, on the ground that there was insufficient evidence to justify their detention.

Immediately following Boumediene, the Bush administration argued that the decision was inapplicable to detainees at Bagram — including even those detained outside of Afghanistan but then flown to Afghanistan to be imprisoned.  Amazingly, the Bush DOJ — in a lawsuit brought by Bagram detainees seeking habeas review of their detention — contended that if they abduct someone and ship them to Guantanamo, then that person (under Boumediene) has the right to a habeas hearing, but if they instead ship them to Bagram, then the detainee has no rights of any kind.  In other words, the detainee’s Constitutional rights depends on where the Government decides to drop them off to be encaged.  One of the first acts undertaken by the Obama DOJ that actually shocked civil libertarians was when, last February, as The New York Times put it, Obama lawyers “told a federal judge that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush’s legal team.”

But last April, John Bates, the Bush-43-appointed, right-wing judge overseeing the case, rejected the Bush/Obama position and held that Boumediene applies to detainees picked up outside of Afghanistan and then shipped to Bagram.  I reviewed that ruling here, in which Judge Bates explained that the Bagram detainees are “virtually identical to the detainees in Boumediene,” and that the Constitutional issue was exactly the same: namely, “the concern that the President could move detainees physically beyond the reach of the Constitution and detain them indefinitely.”

But the Obama administration was undeterred by this loss.  They quickly appealed Judge Bates’ ruling.  As the NYT put it about that appeal:  “The decision signaled that the administration was not backing down in its effort to maintain the power to imprison terrorism suspects for extended periods without judicial oversight.”  Today, a three-judge panel of the D.C. Circuit Court of Appeals adopted the Bush/Obama position, holding that even detainees abducted outside of Afghanistan and then shipped to Bagram have no right to contest the legitimacy of their detention in a U.S. federal court, because Boumediene does not apply to prisons located within war zones (such as Afghanistan).

So congratulations to the United States and Barack Obama for winning the power to abduct people anywhere in the world and then imprison them for as long as they want with no judicial review of any kind.  When the Boumediene decision was issued in the middle of the 2008 presidential campaign, John McCain called it “one of the worst decisions in the history of this country.”  But Obama hailed it as “a rejection of the Bush Administration’s attempt to create a legal black hole at Guantanamo,” and he praised the Court for “rejecting a false choice between fighting terrorism and respecting habeas corpus.”  Even worse, when Obama went to the Senate floor in September, 2006, to speak against the habeas-denying provisions of the Military Commissions Act, this is what he melodramatically intoned:

As a parent, I can also imagine the terror I would feel if one of my family members were rounded up in the middle of the night and sent to Guantanamo without even getting one chance to ask why they were being held and being able to prove their innocence. . . .

By giving suspects a chance — even one chance — to challenge the terms of their detention in court, to have a judge confirm that the Government has detained the right person for the right suspicions, we could solve this problem without harming our efforts in the war on terror one bit. . . .

Most of us have been willing to make some sacrifices because we know that, in the end, it helps to make us safer.  But restricting somebody’s right to challenge their imprisonment indefinitely is not going to make us safer. In fact, recent evidence shows it is probably making us less safe.

Can you smell the hypocrisy?  How could anyone miss its pungent, suffocating odor?  Apparently, what Obama called “a legal black hole at Guantanamo” is a heinous injustice, but “a legal black hole at Bagram” is the Embodiment of Hope.  And evidently, Obama would only feel “terror” if his child were abducted and taken to Guantanamo and imprisoned “without even getting one chance to ask why and prove their innocence.”  But if the very same child were instead taken to Bagram and treated exactly the same way, that would be called Justice — or, to use his jargon, Pragmatism.  And what kind of person hails a Supreme Court decision as “protecting our core values” — as Obama said of Boumediene — only to then turn around and make a complete mockery of that ruling by insisting that the Cherished, Sacred Rights it recognized are purely a function of where the President orders a detainee-carrying military plane to land?

Independently, what happened to Obama’s eloquent insistence that “restricting somebody’s right to challenge their imprisonment indefinitely is not going to make us safer; in fact, recent evidence shows it is probably making us less safe“?  How does our policy of invading Afghanistan and then putting people at Bagram with no charges of any kind dispose people in that country, and the broader Muslim world, to the United States?  If a country invaded the U.S. and set up prisons where Americans from around the world where detained indefinitely and denied all rights to have their detention reviewed, how would it dispose you to the country which was doing that?

One other point:  this decision is likely to be appealed to the Supreme Court, which serves to further highlight how important the Kagan-for-Stevens replacement could be.  If the Court were to accept the appeal, Kagan would be required to recuse herself (since it was her Solicitor General’s office that argued the administration’s position here), which means that a 4-4 ruling would be likely, thus leaving this appellate decision undisturbed.  More broadly, though, if Kagan were as sympathetic to Obama’s executive power claims as her colleagues in the Obama administration are, then her confirmation could easily convert decisions on these types of questions from a 5-4 victory (which is what Boumediene was, with Stevens in the majority) into a 5-4 defeat.  Maybe we should try to find out what her views are before putting her on that Court for the next 40 years?

This is what Barack Obama has done to the habeas clause of the Constitution:  if you are in Thailand (as one of the petitioners in this case was) and the U.S. abducts you and flies you to Guantanamo, then you have the right to have a federal court determine if there is sufficient evidence to hold you.  If, however, President Obama orders that you be taken to from Thailand to Bagram rather than to Guantanamo, then you will have no rights of any kind, and he can order you detained there indefinitely without any right to a habeas review.  That type of change is so very inspiring — almost an exact replica of his vow to close Guantanamo . . . all in order to move its core attributes (including indefinite detention) a few thousand miles North to Thompson, Illinois.

May 22, 2010 Posted by aletho | Civil Liberties, Full Spectrum Dominance, Progressive Hypocrite | Leave a comment