Daniel Ellsberg was the first in modern times prosecuted under the Espionage Act, he said, followed by two others. But Obama has prosecuted 10 and “set the precedent for successors.”

Daniel Ellsberg was the first in modern times prosecuted under the Espionage Act, he said, followed by two others. But Obama has prosecuted 10 and “set the precedent for successors.” Susan Walsh/AP file photo

All-Stars of Government Whistleblowing Blast Obama Prosecutions

NSA, FBI and Justice veterans decry Gen. Petraeus' sentence as comparatively lenient.

The landscape for whistleblowing “changed drastically” on April 23 when Gen. David Patraeus received two years’ probation and a $100,000 fine for divulging classified information, according to a panel of some of government’s most famous disclosers of secrets.

“We all owe one debt of gratitude to [former CIA Director] Petraeus for showing what a legal farce” the government’s policy has become, said Jesselyn Radack, a whistleblower and former Justice Department trial attorney now director of national security and human rights at the Government Accountability Project. Whistleblowers and journalists who recently exposed illegal domestic surveillance were jailed, bankrupted and prosecuted under the rarely used 1917 Espionage Act, which has become the Obama administration’s “weapon of choice except for with Petraeus,” she said.

Radack and six other long-recognized whistleblowers appeared on a National Press Club panel organized by the nonprofit Institute for Public Accuracy, during which nearly all speakers praised National Security Agency contractor-turned-leaker Edward Snowden and imprisoned WikiLeaks leaker Chelsea Manning.

All seven, including famed Pentagon Papers discloser Daniel Ellsberg, called for an end to the NSA’s “unconstitutional” domestic surveillance program and backed the Surveillance State Repeal Act (H.R. 1466), introduced in March by Rep. Mark Pocan, D-Wis. It would eliminate the USA Patriot Act and the 2008 amendments to the Foreign Intelligence Surveillance Act.

Ray McGovern, a retired CIA analyst who co-founded Veteran Intelligence Professionals for Sanity, called the punishment given Petraeus a “slap on the wrist, an amount that is only three-fourths of what he gets for a lecture.” He noted that the sentencing of Jeffrey Sterling, the former CIA agent convicted of sharing classified information with an author, was postponed from April 24—the day after Patraeus’ court date—to May “showing that there’s not much embarrassment left in this government.”

McGovern has published frequently on what he regards as a cover-up of mistakes agencies made in not sharing information that might have prevented the September 11, 2001, terrorist attacks, landing hard this Monday on former NSA Director Michael Hayden for “suppressing information” about al Qaeda hijacking planners in Yemen and San Diego.

Hayden “lied” in saying the domestic surveillance program didn’t focus on content, only metadata, echoed William Binney, a former NSA intelligence official who, after retiring in 2001, exposed NSA access to telecom companies’ billing records. “The U.S. is violating the rights of everyone in the country, and it’s still going,” he said. The domestic surveillance program was a “covert project that was kept from [most of] Congress and the judiciary using fear mongering, manipulation and co-optation to keep all three branches of government in agreement,” he said.

Beginning under President George W. Bush, the program was called “legal” but never “constitutional,” Binney added, in order to avoid a challenge on Fourth Amendment grounds at the Supreme Court. “The entire electorate was uninformed, and we would never know about it without whistleblowers.”

(Government Executive’s efforts to reach Hayden for comment were unsuccessful.)

Thomas Drake, former senior executive at NSA who was also prosecuted for exposing classified information, said, “Whistleblowers are the canaries in the constitutional coal mine, speaking truth to power. I was told, ‘What you don’t understand, Mr. Drake, is that we live in exigent circumstances.’ That means that after 9/11, with no legal basis, everything became unchained from constitutional government, and now our government is an alien form I don’t recognize.”

Colleen Rowley, an attorney and former FBI special agent who exposed the bureau’s pre- 9/11 failures to follow up on information on terrorists in the United States, referenced President Obama’s recent apology for inadvertent killings of two U.S. hostages in a drone attack on an al Qaeda hideout, in which he said, “This is what sets America apart, that we squarely confront our imperfections and learn from our mistakes.”

“I wish it were true,” Rowley said. Eight months after 9/11, there was a “short moment when people realized we need to know the truth,” she said. “But if the government suppresses truth [by whistleblowers] at the bottom, then the people at the top will make decisions and come up with intelligence to justify the decision. It’s completely upside down.”

J. Kirk Wiebe, who spent 32 years at NSA and won awards for tracking foreign strategic weapons systems, said 9/11 completely changed the mindset at NSA where for years “many excellent people were doing good work.” Suddenly, it was decided “we need a new path, with shortcuts, to collect all information we can on Americans,” he said. “I’m entering the phase of becoming frightened. I’m no longer afraid of a police state, it’s happening. It’s here. And both parties and the Americans society own the issue. Let’s take a time-out and hold people accountable.”

Ellsberg described his evolution, while at the Pentagon and RAND Corp. as the controversial Vietnam war raged in the late 60s and early 70s,  from the view that “we-don’t-want-to-embarrass-colleagues was the only ethic to discovering that this not the best way to serve the country.” Ellsberg was the first in modern times prosecuted under the Espionage Act, he said, followed by two others. But Obama has prosecuted 10 and “set the precedent for successors.”

Calling for a “Pulitzer Prize” for whistleblowers, Ellsberg noted that most disclosures, such as the material Petraeus shared with his biographer, are done to make an individual look good, to make a budgetary opponent look bad or to make money. Only a small percentage the government goes after are whistleblower-public activists, and there ought to be a new statute to accommodate such idealistic disclosers, Ellsberg said.

Prosecutions under the Espionage Act, echoed Radack, are done in secret, with no opportunity for those charged to discuss their motive, whether it’s for money or ideology. Its use under Obama to “silence journalists and activists has been disaster for all my clients,” she said. Though the 2012 Whistleblower Protection Enhancement Act was a step forward, she said, what’s needed is broader, “real whistleblower protection reforms such as those once called for by candidate Barack Obama.”