What the Whistleblower Prosecution Says About the Obama DOJ

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Salon.com

What the Whistleblower Prosecution Says About the Obama DOJ

The more I think and read about the Obama DOJ's prosecution of NSA whistleblower Thomas Drake, the more I think this might actually be one of the worst steps the Obama administration has taken yet, if not the single worst step -- and that's obviously saying a lot.  During the Bush years, in the wake of the NSA scandal, I used to write post after post about how warped and dangerous it was that the Bush DOJ was protecting the people who criminally spied on Americans (Bush, Cheney Michael Hayden) while simultaneously threatening to prosecute the whistle-blowers who exposed misconduct.  But the Bush DOJ never actually followed through on those menacing threats; no NSA whistle-blowers were indicted during Bush's term (though several were threatened).  It took the election of Barack Obama for that to happen, as his handpicked Assistant Attorney General publicly boasted yesterday of the indictment against Drake.

Aside from the indefensible fact that only crimes committed by high-level Bush officials -- but nobody else -- enjoy the benefits of Obama's "Look Forward, Not Backward" decree, think about the interests being served by this prosecution.  Most discussions yesterday suggested that Drake's leaks to The Baltimore Sun's Sibohan Gorman were about waste and mismanagement in the "Trailblazer" project rather than controversial NSA spying activities, but that's not entirely accurate.  

Just consider this May 18, 2006, article by Gorman, describing how and why the NSA opted for the "Trailblazer" proposal over the privacy-protecting "Thin Thread" program, in the process discarding key privacy protections designed to ensure that the NSA would not eavesdrop on the domestic calls of U.S. citizens (h/t ondelette).  In that article -- which really should be read to get a sense for the whistle-blowing that is being punished by the DOJ -- Gorman described at length how then-NSA head Michael Hayden rejected technologies that could "rapidly separate and encrypt U.S.-related communications to ensure privacy" and "that monitored potential abuse of the records."  As she put it: "Once President Bush gave the go-ahead for the NSA to secretly gather and analyze domestic phone records -- an authorization that carried no stipulations about identity protection -- agency officials regarded the encryption as an unnecessary step and rejected it."

It's not hyperbole to say that Bush's decision to use the NSA to spy domestically on American citizens was one of the most significant stories of this generation.  It was long recognized that turning the NSA inward was one of the greatest dangers to freedom, as Sen. Frank Church warned back in 1975, after he investigated America's secret surveillance apparatus:   "That capability at any time could be turned around on the American people and no American would have any privacy left, such is the capability to monitor everything:  telephone conversations, telegrams, it doesn't matter. There would be no place to hide."  It was, of course, the December 16, 2005, New York Times article by Jim Risen and Eric Lichtblau which first disclosed that the Bush NSA was illegally eavesdropping on American citizens inside the U.S., but Gorman's articles regarding the Trailblazer program -- in the time period covered by the indictment, using NSA sources (almost certainly including Drake) -- provided crucial details about how and why the Bush NSA dispensed with key safeguards to protect innocent Americans from such invasive domestic surveillance.

And then there's the massive fraud and waste which Gorman also exposed as a result of Drake's whistle-blowing.  The primary focus of her stories was that the Trailblazer project turned into a massive, billion-dollar "boondoggle" which vastly exceeded its original estimates, sucked up enormous amounts of the post-9/11 intelligence budget explosion, and produced very little of value.  But look at the coalition of corporations which was contracted to develop this Trailblazer project, the familiar cast of Surveillance State interests who were the recipients of the "boondoggle" which Gorman and Drake exposed:

Science Applications International Corporation (SAIC) today announced a contract award from the National Security Agency to be the provider of the technology demonstration platform phase of the TRAILBLAZER program.

The TDP phase of the TRAILBLAZER program is currently estimated at $280 million and will be performed over a period of 26 months.

The NSA selected the SAIC-led Digital Network Intelligence Enterprise team that includes Northrop Grumman, Booz Allen Hamilton, The Boeing Company, Computer Sciences Corporation and SAIC wholly-owned subsidiary Telcordia Technologies to contribute to the modernization of the NSA's signals intelligence capabilities.

SAIC itself is, by its own description, an enormous defense contractor devoted to "customers in the U.S. Department of Defense, the intelligence community, the U.S. Department of Homeland Security, other U.S. Government civil agencies and selected commercial markets."  Just like its Trailblazer partners -- Boeing, Booz Allen and Northrop Grumman -- SAIC feeds off the massive Pentagon and intelligence budgets.  In other words, Drake's leaks to Gorman exposed serious wrongdoing on the part of (a) the NSA and its illegal domestic spying activities and (b) the vast private intelligence and defense industry that has all but formally merged with the CIA, NSA and Pentagon to become the public-private National Security and Surveillance State that exercises more power, by far, than any single faction in the country. 

Think about to whose interests the Obama DOJ is devoted given that -- while they protect the most profound Bush crimes based on the Presidential decree of "Look Forward, Not Backward" -- they chose this whistle-blower to prosecute (and Drake, incidentally, is apparently impoverished, as he's been assigned a Public Defender to represent him).  In the process, of course, the Obama DOJ also intimidates and deters future whistle-blowers from exposing what they know, thus further suffocating one of the very few remaining mechanisms Americans have to learn about what takes place behind the virtually impenetrable Wall of Secrecy surrounding the Surveillance State -- a Wall of Secrecy which the Obama administration, through its promiscuous use of "state secrets" and immunity claims, has relentlessly fortified and expanded.  Anyone who doubts that whistle-blower prosecutions like this are intended to prevent any further disclosures of wrongdoing should simply review the 2008 Pentagon report which identified WikiLeaks as a major threat to the U.S. and proposed that exposure and prosecution of their sources would crush their ability to obtain further leaks.

It's true that leaking classified information is a crime.  That's what makes whistleblowers like Drake so courageous.  That's why Daniel Ellsberg -- who literally risked his liberty in an effort to help end the Vietnam War -- is one of the 20th Century's genuine American heroes.  And if political-related crimes were punished equally, one could accept whistle-blower prosecutions even while questioning the motives behind them and the priorities they reflect.  But that's not the situation that prevails.

Instead, here you have the Obama DOJ in all its glory:  no prosecutions (but rather full-scale immunity extended) for war crimes, torture, and illegal spying.  For those crimes, we must Look Forward, Not Backward.  But for those poor individuals who courageously blow the whistle on oozing corruption, waste and illegal surveillance by the omnipotent public-private Surveillance State: the full weight of the "justice system" comes crashing down upon them with threats of many years in prison. 

UPDATE:  John Cole, proving once again that one can be an enthusiastic Obama admirer without reflexively excusing and justifying everything he does, writes today:

The message is clear- you torture people and then destroy the evidence, and you get off without so much as a sternly worded letter.

If you are a whistle blower outlining criminal behavior by the government, [] you get prosecuted.

Cole is referring to the revelation today that, once he learned it was done, then-CIA-Director Porter Goss approved of the destruction of CIA interrogation videos (an act which the co-Chair of the 9/11 Commissions said constituted an obstruction of justice), and the message Cole describes is exactly the one being sent by the Drake prosecution.

Glenn Greenwald

Glenn Greenwald is a Pulitzer Prize-winning journalist, constitutional lawyer, commentator, author of three New York Times best-selling books on politics and law, and a staff writer and editor at First Look media. His fifth and latest book is, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State, about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world. Prior to his collaboration with Pierre Omidyar, Glenn’s column was featured at Guardian US and Salon.  His previous books include: With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the PowerfulGreat American Hypocrites: Toppling the Big Myths of Republican PoliticsA Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency, and How Would a Patriot Act? Defending American Values from a President Run Amok. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, a George Polk Award, and was on The Guardian team that won the Pulitzer Prize for public interest journalism in 2014.

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