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Holder Rationalizes Obama’s War on Whistleblowers

Attorney General Eric Holder

Attorney General Eric Holder

Attorney General Eric Holder delivered a luncheon speech on sentencing reform at the National Press Club on February 17. He then answered questions after his speech. One of the questions involved President Barack Obama and his administration’s unprecedented crackdown on leaks.

“The Obama administration has prosecuted eight alleged whistleblowers under the Espionage Act, more than all previous presidential administrations combined. What justifies this more aggressive posture toward leakers?” a person attending the speech asked.

Holder acknowledged that members of the press have been concerned “about these prosecutions.” He highlighted the “series of meetings at the Justice Department” that have taken place, where editors of major media organizations and various officials have discussed views about the cases brought against whistleblowers and how certain policies involving media might be changed.

Holder quibbled with the number in the question. He claimed the Justice Department prosecuted seven and inherited two of those. “I guess it has been more than other administrations,” he conceded. However, he added, “That leaves us with total of, I guess, five or six that the administration has brought over six years.”

“I don’t think as you look at those cases individually that there was anything inappropriate about the cases that were brought. You look at the case, the last case involving Mr. [James] Risen, the way in which that case was handled after the new policies were put in place was an example of how the Justice Department can proceed.”

Holder continued, “When you have people who are disclosing, for instance, identities of people who work in our intelligence agencies, that’s the kind of case that I think we have to bring.”

“I also think there is a question for you all, members of the press, as we have asked ourselves when it comes to national surveillance,” Holder stated. “Simply because we have the ability to do certain things, should we? Members of the press have to ask that same question.

“Simply because you have the ability to, because of a leaker or a source of information that you have, you have the ability to expose that to the public, should you? Doesn’t mean, I’m not saying, it’s for you to decide. It’s not for the government to decide. It’s for you to say.”

As Holder wrapped up his answer, he offered what he admitted was a possibly “extreme” and “unfair” to drive home his point:

…In World War II, if a reporter had found out about the existence of the Manhattan Project, is that something that should have been disclosed? We’re not in a time of war. I understand. And I said that is an extreme example, but I think that is a question the press should ask about whether or not the disclosure of information has a negative impact on the national security of the nation. We have tried to be appropriately sensitive in bringing cases that warranted prosecution. We’ve turned away substantially greater numbers of cases brought to us where prosecution was sought.

Holder’s comments are worthy of thorough deconstruction.

It is true that the Justice Department has decided not to prosecute a number of cases. A 2012 report from the Investigations Division of the Intelligence Community of the Office of the Inspector General (IC IG) indicated 375 unauthorized disclosure case files were being reviewed. The cases included closed cases, where the Justice Department declined to pursue criminal prosecution.

As Secrecy News reported, in 2010, US intelligence agencies “submitted 183 referrals of incidents of unauthorized disclosure of classified information to the Department of Justice during a five year period from 2005 to 2009. Those referrals resulted in 26 leak investigations.” The FBI subsequently identified 14 suspects.

But Holder’s answer only concerns criminal prosecutions. The number of government employees threatened with criminal prosecution for talking to reporters, who were then fired, goes unaddressed. The number of government employees, who are administratively sanctioned, as the IC IG recommended as part of a review of closed cases, is overlooked. Were imposed penalties justified and did they have the same chilling effect internally that criminal prosecutions have had?

The notion that the government has been “sensitive in bringing cases” and that there was nothing “inappropriate” about cases pursued is belied by the facts.

For example, consider former CIA officer Jeffrey Sterling, who was recently convicted of multiple Espionage Act offenses. Prosecutors convinced a jury, through largely circumstantial evidence, that Sterling leaked details to Risen about a top secret CIA operation called “Operation Merlin.” It involved a Russian asset, who provided flawed blueprints for nuclear weapons to Iran.

Sterling’s defense has filed a post-trial motion [PDF] requesting that he be acquitted on all charges. The motion compellingly argues, “None of the witnesses could testify that Mr. Sterling communicated national defense information” about the classified program at issue or the human asset the government claimed he exposed to “anybody not authorized to receive it, much less to Mr. Risen. Nor did the government present any documentary evidence establishing such conduct.”

Sterling did talk to Risen about a discrimination lawsuit against the CIA. It was unfolding during the time period when he called and emailed Risen. The former CIA officer also filed a lawsuit against the CIA over his memoirs. Risen did write a story about his discrimination lawsuit, which was thrown out after the government successfully invoked “state secrets.”

There was no evidence at trial that Sterling communicated about the top-secret operation against Iran with Risen. As it stands, the government’s prosecution of Sterling effectively criminalized government employees, who talk to reporters about public lawsuits they have brought against their bosses or other government officials.

Criticism of Holder’s cavalier statements should not be limited to Sterling’s case.

Former State Department adviser Stephen Kim had his life destroyed by the government for talking to a reporter about information in a classified intelligence report on North Korea that was largely insignificant. The problem for the Obama administration, however, was that Kim talked about the contents with Fox News’ James Rosen just hours after it began to circulate. Officials were upset and felt the need to hold someone responsible. Kim was charged and eventually pled guilty to violating the Espionage Act to avoid a potentially lengthy sentence in prison.

Then, there are the cases of former NSA senior officer Thomas Drake, former CIA officer John Kiriakou and former FBI linguist Shamai Leibowitz, which each have their own set of improprieties.

Leibowitz pled guilty to violating the Espionage Act and Kiriakou pled guilty to violating the Intelligence Identities Protection Act. Both sought to avoid long prison sentences. Both men had their lives wrecked by the government’s relentless pursuit against them. And, while the case against Drake eventually collapsed, the government still ruined his livelihood and maintained enough leverage to convince him to plead guilty to a misdemeanor of improper misuse of a government computer.

The need to distinguish between cases inherited and cases launched by the Obama administration is remarkable, as if it really matters. The Justice Department still pursued these whistleblowers when they could have dissolved the cases.

In 2012, unnamed aides told the New York Times that Obama “never ordered investigations.” Holder has “no desire for leak prosecutions to be his legacy.” The record number of prosecutions was “unplanned” and “resulted from several leftover investigations from the Bush administration, a proliferation of e-mail and computer audit trails that increasingly can pinpoint reporters’ sources, bipartisan support in Congress for a tougher approach, and a push by the director of national intelligence in 2009 that sharpened the system for tracking disclosures.”

Former director of public affairs for former Attorney General John Ashcroft, Mark Corrallo, did not accept this argument. The Obama administration was still at fault for “allowing so many leak cases to go forward.” He said, “Sometimes the interests of the prosecutor in the field are at odds with the overall health of our republic,” and added “Holder and his top aides had not been ‘doing their job, which is to make serious judgments about the overall effects of a leak investigation.’”

It is disingenuous for Holder to pose the question, “Simply because you have a leaker or source, should you disclose certain information?” Journalists are not obligated to ask this question, which government officials have supposedly asked themselves when reviewing domestic surveillance. Exercising freedom of the press is not analogous to intrusive spying, which the Obama administration has refused to let a judge review by invoking “state secrets” to have lawsuits dismissed.

More importantly, journalists do ask this question regularly. It almost always forms part of the calculus in coverage of national security matters.

Holder neglected to acknowledge how the press has refused to name key CIA agents involved in torture and the agency’s cover-up of detainee abuse, like Alfreda Bikowsky. Outlets have kept the names of agents who go missing secret at the request of government, as in the case of Robert Levinson, who has been missing in Iran and worked for the CIA.

At the request of government, US media outlets would not publish the location of a secret drone base in Saudi Arabia. Outlets declined to identify Raymond Davis, who shot and killed two men in Pakistan, as a CIA asset. The New York Times infamously delayed publication of a story on warrantless wiretapping when President George W. Bush was up for re-election. The Times also refused to publish any of Risen’s reporting on Operation Merlin at the request of Bush and expose the existence of a secret CIA prison in Thailand where torture was taking place.

For every story containing information the government has not wanted published, there are countless stories where unnamed officials succeeded in convincing media to change a story, report it in a different manner or withhold certain details. (There are also numerous instances, where anonymous officials leaked information they wanted in the public domain to make them look good too. )

Risen appropriately reacted to Holder’s remarks. “Holder has been the nation’s top censorship officer, not the top law enforcement officer.” He has “done the bidding of the intelligence community and the White House.” It has damaged press freedom in the United States.

He offensively maintains that Risen is an example of how the Justice Department eventually got it right, but that seemingly excuses all that happened prior. The Justice Department has wielded a legal process and used grand jury subpoenas against journalists to pressure them into revealing their confidential sources.

This tactic has been primarily used in leak investigations, which is why journalists are so concerned. The Justice Department also continues to have a grand jury investigation into WikiLeaks—something far too much of the press has ignored when taking issue with the government’s record on press freedom.

“Eric Holder has sent a message to dictators around the world that it is okay to crack down on the press and jail journalists,” Risen declared. “Eric Holder leaves behind a wrecked First Amendment.”

Holder oversaw a Justice Department, which fought to maintain the discretion to subpoena and force any journalist to violate his sources through compelled testimony. He will leave his position as Attorney General knowing full well he helped the national security state defend authorities useful in pursuing whistleblowers and investigative journalists, who dare to expose secrets.

CommunityFDL Main BlogThe Dissenter

Holder Rationalizes Obama’s War on Whistleblowers

Attorney General Eric Holder

Attorney General Eric Holder

Attorney General Eric Holder delivered a luncheon speech on sentencing reform at the National Press Club on February 17. He then answered questions after his speech. One of the questions involved President Barack Obama and his administration’s unprecedented crackdown on leaks.

“The Obama administration has prosecuted eight alleged whistleblowers under the Espionage Act, more than all previous presidential administrations combined. What justifies this more aggressive posture toward leakers?” a person attending the speech asked.

Holder acknowledged that members of the press have been concerned “about these prosecutions.” He highlighted the “series of meetings at the Justice Department” that have taken place, where editors of major media organizations and various officials have discussed views about the cases brought against whistleblowers and how certain policies involving media might be changed.

Holder quibbled with the number in the question. He claimed the Justice Department prosecuted seven and inherited two of those. “I guess it has been more than other administrations,” he conceded. However, he added, “That leaves us with total of, I guess, five or six that the administration has brought over six years.”

“I don’t think as you look at those cases individually that there was anything inappropriate about the cases that were brought. You look at the case, the last case involving Mr. [James] Risen, the way in which that case was handled after the new policies were put in place was an example of how the Justice Department can proceed.”

Holder continued, “When you have people who are disclosing, for instance, identities of people who work in our intelligence agencies, that’s the kind of case that I think we have to bring.”

“I also think there is a question for you all, members of the press, as we have asked ourselves when it comes to national surveillance,” Holder stated. “Simply because we have the ability to do certain things, should we? Members of the press have to ask that same question.

“Simply because you have the ability to, because of a leaker or a source of information that you have, you have the ability to expose that to the public, should you? Doesn’t mean, I’m not saying, it’s for you to decide. It’s not for the government to decide. It’s for you to say.”

As Holder wrapped up his answer, he offered what he admitted was a possibly “extreme” and “unfair” to drive home his point:

…In World War II, if a reporter had found out about the existence of the Manhattan Project, is that something that should have been disclosed? We’re not in a time of war. I understand. And I said that is an extreme example, but I think that is a question the press should ask about whether or not the disclosure of information has a negative impact on the national security of the nation. We have tried to be appropriately sensitive in bringing cases that warranted prosecution. We’ve turned away substantially greater numbers of cases brought to us where prosecution was sought.

Holder’s comments are worthy of thorough deconstruction. (more…)

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."

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