john kiriakou – Courage Foundation

We’ve written a lot about how the current US administration has treated unauthorised disclosures of classified information. Whether those disclosures be matters of huge public significance or relatively trivial, the reaction has been to seek to prosecute those responsible under the 1917 Espionage Act.

As is well known, the Obama administration has initiated twice as many Espionage Act prosecutions than all previous US administrations combined. Denied the ability to put forward a public interest defence, Chelsea Manning was sentenced to 35 years’ imprisonment and CIA whistleblower John Kirakou is still the only person to have been prosecuted in relation to America’s state sanctioned torture programme. And, as last week’s Pentagon Inspector General’s Office report on the treatment of NSA whistleblower Thomas Drake shows, there’s no accountability for the wrongs inflicted on defendants during in Espionage Act investigation.

The emergence of former CIA director and general David Petraeus’ plea deal this week places this suffering into sharp relief. Petraeus shared eight “black books” with his biographer and mistress, containing information that included covert officers’ identities, classified notes and details about US intelligence. By his own admission, the top secret information in those Black Books was more sensitive than anything Chelsea Manning ever disclosed.

Nevertheless, under the terms of his plea bargain, Petraeus will plead guilty to a misdemeanour and serve no more than two year’s probation and a $40,000 fine. He was never indicted under the Espionage act and will not face repurcussions for lying to FBI agents.

As John Kirakou and Marcy Wheeler point out in a recent interview, there’s a glaring inequity here, with sufficient prominence acting as a safeguard against prosecution, even in matters which the US government appears to regard as priorities. More than that, it demonstrates, quite clearly, that Espionage Act prosecutions are explicitly political. As Jesselyn Radack notes in a piece which brings out this dynamic very clearly:

Now that the government has put forth a new model of how to deal appropriately with unauthorized disclosures, I suspect that Snowden would entertain returning to the United States for the kind of plea bargain that Petraeus received.

Too bad that kind of leniency is reserved for generals sharing information with their mistress-biographers — not normal Americans trying to expose government wrongdoing.

“If you blow the whistle, you should be thanked. You should be protected for doing the right thing. You shouldn’t be ignored and you certainly shouldn’t be punished.”

These were the surprising words of President Obama on 7 August 2014, as he signed a $16 billion bill to improve veterans’ access to medical care. The bill followed a report from the Department for Veterans’ Affairs, which confirmed many of the complaints whistleblowers had been making – waiting lists were indeed being manipulated to hide how long veterans were having to wait for medical appointments.

The White House again praised whistleblowers this week, responding to a letter sent by the Society of Professional Journalists and 37 other journalism and open government groups urging the Obama Administration to be more transparent. The letter from White House Press Secretary Josh Earnest claims that the Administration has “made important progress” in “protecting whistleblowers” and “disclosing previously classified information.” Earnest cites the 2012 Whistleblower Protection Enhancement Act as evidence that the Administration has “fought for and won better protections for whistleblowers.”

But the Whistleblower Protection Enhancement Act that the White House claims offers better protections for whistleblowers is limited. While the Act was recognised as a step forward by whistleblower organisations like the Government Accountability Project (GAP) and the National Whistleblowers Centre, GAP also recognised its limitations. Blowing the whistle within official channels does not guarantee public disclosure of the information and does little to facilitate what Yochai Benkler has called “accountability leaks… that challenge systemic practices.”

At any rate, it is not the Whistleblower Protection Enhancement Act for which this Presidency is likely to be remembered but the intelligence whistleblowers who have faced severe reprisals on its watch. The Obama Administration, famously, has initiated eight prosecutions under the Espionage Act – more uses of the 1917 Act than all previous US presidents combined. Former NSA employees Thomas Drake and Edward Snowden, who blew the whistle on mass surveillance; former US Army intelligence analyst Chelsea Manning, who blew the whistle on US torture and war crimes in Iraq and Afghanistan; and former CIA official John Kiriakou, who blew the whistle on US torture, are among the intelligence whistleblowers who have been charged with the Espionage Act during Obama’s Administration.

Ray McGovern, a former CIA senior analyst, founder of whistleblower group Sam Adams Associates for Integrity in Intelligence and co-founder of Veteran Intelligence Professionals for Sanity (VIPS), responded to Obama’s comments saying, “President Obama is giving hypocrisy a bad name.”

McGovern, who is also a member of Courage’s advisory board, said:

Obama’s record speaks for itself; he has prosecuted more than twice as many whistleblowers – for espionage, no less – than all former presidents combined. As for those whose crimes have been whistle-blown upon, like those who did the torture, Obama continues to call them ‘patriots’. Former CIA operative John Kiriakou, who opposed torture, sits in a Pennsylvania prison because he revealed the name of one of the torturers.

Too bad Kafka is dead.