“If this is transparency, who needs it?”

“If this is transparency, who needs it?” Steven Aftergood, Director of the Project on Government Secrecy at the Federation of American Scientists, speaking of the Obama Administration’s White House visitor log policy, the results of which he labeled “very thin gruel” (Apr. 13, 2011).

“A White House official conceded the system has limitations, asserting it was designed not as an archive but ‘first and foremost to protect the first family, second family and White House staff while imposing the smallest administrative burden possible.'” POLITICO, “White House Visitor Logs Leave Out Many” (Apr. 15, 2011).

from the site “Quotes of the Month” hosted by American University’s Washington College of Law, Collaboration of Government secrecy.

One of the major Obama campaign promises was to bring more transparency to governing. The English/international version of   Speigel on line has a compelling series up this week called “Disingenuous Transparency”focusing on how government whistle blowers have suffered under the Obama administration.  The series is extremely relevant given that the U.S. government has finally “officially” released the Pentagon Papers on the Vietnam War as a show of ‘openness’. The article accuses Obama and the administration of stonewalling and basically ignoring court instructions.  The sad thing is that the compelling article filled with compelling examples will probably never reach a large audience.

I have been following the case of Thomas Drake–a former employee of NSA–who is accused of providing the Baltimore Sun with internal information on government wiretapping. Drake’s case predates the more famous case of Bradley Manning and Wikileaks.  There have been other cases.

In May 2010, a court convicted former FBI interpreter Shamai Leibowitz was sentenced to 20 months in prison for providing government information to a blogger.  Another prosecuted whistle blower of Stephen Kim who was  a North Korea expert at the State Department.  Kim supposedly supplied state secrets to Fox News. Another high profile case is that of former CIA agent Jeffrey Sterling who allegedly provided information to author James Risen a 2006 exposé entitled  “State of War.”    The Obama Justice Department has prosecuted these cases to the fullest extent possible.

The Drake case fell apart in a similar way that the charges of Oliver North fell apart during the Iran-Contra Scandal of the 1980s.  It was felt that the prosecution of Drake would expose too much national security information. Drake accepted a plea of misdemeanor charges for “exceeding his authorized use of a government computer”.  Again, the tie back to Daniel Ellsberg and the Pentagon Papers is relevant.

But the government withdrew the evidence supporting several of the central charges after a judge ruled Drake would not be able to defend himself unless the government revealed details about one of the National Security Agency’s telecommunications collection programs. On two other counts, documents the government had claimed were classified have either been shown to be labeled unclassified when Drake accessed them or have since been declassified. Faced with the prospect of trying to convict a man for leaking unclassified information, the government frantically crafted a plea deal in the last days before the case was due to go to trial.

The collapse of the case against Drake may have repercussions beyond just this one case.

This is the third time the government’s attempt to use the Espionage Act to criminalize ordinary leaking has failed in spectacular fashion. The first such example—against Pentagon Papers leaker Daniel Ellsberg—got dismissed when the government’s own spying on Ellsberg was exposed.

Spiegal characterizes this case as “an embarrassing setback for the White House”.  It seems that the candidate that promised translucency is fighting to keep secrets at a pace previously never experienced.  That says a lot given the paranoia of Nixon and the fierce defense of the so-called imperial presidency by the Bush/Cheney administration.

Under Obama, more whistleblowers are being held accountable than in all previous decades. Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, told the Associated Press that the US government is going after whistleblowers “very, very aggressively.”

Government whistle blowers are supposedly protected by an act of Congress passed in 1989 called The Whistle Blower’s Protection Act. It was designed to encourage government employees to step forward with instances of government abuse that they’ve witnessed. You’ll notice the date roughly corresponds to the time the Iran-Contra situation was fresh.   Since then, the law has been weakened.

“It is no surprise that honest citizens who witness waste, fraud and abuse in national security programs but lack legal protections are silenced or forced to turn to unauthorized methods to expose malfeasance, incompetence or negligence,” Stephen Kohn, the executive director of the National Whistleblowers Center wrote in an op-ed contribution to the New York Times on Monday.

He wrote that Congress and the executive branch would be well advised to follow the example of their predecessors. In fact, the first protective law in the US for “whistleblowers” is almost as old as the country itself — it originated in 1778.

Speigal characterizes the Obama administration as having an active policy of “stonewalling” and “blocking” any avenue that would provide a safe path for federal whistle blowers.

The Obama administration also uses other avenues for stonewalling and blocking. At times, those efforts take on grotesque dimensions, as in the case the Pentagon’s September order to pulp the entire first printing run of “Operation Dark Heart.” The memoir by army officer Anthony Shaffer over his time in the Afghanistan war contained what were alleged to be military secrets. The destruction of the 9,500 books cost taxpayers an estimated $47,300. When the second edition was released, 250 passages were blacked out.

This pressure clashes with the increasing openness of the Internet age. Four decades ago, Daniel Ellsberg had to photocopy selected passages from the “Pentagon Papers.” Today, WikiLeaks indiscriminately places tens of thousands of documents on the Web. “It revels in the revelation of ‘secrets’ simply because they are secret,” well-regarded attorney Floyd Abrams, who represented the New York Times in its “Pentagon Papers” case against the government, wrote six months ago in the Wall Street Journal.

So, the NSA has dumped  some historical documents–including the already published Pentagon Papers–as a show of transparency while still vigorously perusing a case against Julian Assange, Bradley Manning, and others.  WAPO (via AP) argues that the collapse of the Drake case is unlikely to stop the aggressive pursuit of any and all whistle blowers by this administration.

“It’s not likely the administration will back off,” said David Sobel, senior counsel at the Washington office of the Electronic Frontier Foundation. “The Drake prosecution will, unfortunately, serve its purpose of creating a real disincentive for government insiders who feel that they should reveal misconduct in their agencies.”

Justice Department spokesman Matthew Miller said that there are available avenues for whistleblowers to report wrongdoing, even in classified matters, “and we encourage people to use them. But people cannot make unilateral decisions to publicly release information that jeopardizes national security. When that happens, the government has an obligation to act.”

Obama’s administration has pursued cases against five government leakers under espionage statutes, more than any of his recent predecessors. James Bamford, the author of two books on the NSA, called the Drake prosecution “a very important case” because it could set a precedent for similar Espionage Act trials to follow.

It would seem that this area is one particular policy area where the Obama administration has not only continued Bush/Cheney policy, but placed the policy on steroids.   This is quite different from the philosophy offered in this quote from 2009 when the President welcomed his incoming administration.

“Going forward, anytime the American people want to know something that I or a former president wants to withhold, we will have to consult with the Attorney General and the white house counsel, whose business it is to ensure compliance with the rule of law. Information will not be withheld just because I say so; it will be withheld because a separate authority believes my request is well-grounded in the Constitution. Let me say it as simply as I can: transparency and the rule of law will be the touchstones of this presidency,“

While I know that this topic does not create a media feeding frenzy like naked photos sent to Vegas black jack dealers or derive tacit media complicity as we see with the inability of the press to fact check Republican talking points, I believe it is a defining issue for our country. If a citizen of this country cannot call shenanigans on its government without protection from the checks and balances ensured by The Constitution, then we are in a very sorry state affairs indeed.

Whistle blowing is a long time American enterprise.  In fact, the first  law in the US designed to protect “whistle blowers” originated in 1778. You can read about the act in an op-ed in the NYT called “The Whistle Blowers of 1777” written by Stephen Kohn.

In the winter of 1777, months after the signing of the Declaration of Independence, the American warship Warren was anchored outside of Providence, R.I. On board, 10 revolutionary sailors and marines met in secret — not to plot against the king’s armies, but to discuss their concerns about the commander of the Continental Navy, Commodore Esek Hopkins. They knew the risks: Hopkins came from a powerful family; his brother was a former governor of Rhode Island and a signer of the declaration.

Hopkins had participated in the torture of captured British sailors; he “treated prisoners in the most inhuman and barbarous manner,” his subordinates wrote in a petition.

One whistle-blower, a Marine captain named John Grannis, was selected to present the petition to the Continental Congress, which voted on March 26, 1777, to suspend Hopkins from his post.

The case did not end there. Hopkins, infuriated, immediately retaliated. He filed a criminal libel suit in Rhode Island against the whistle-blowers. Two of them who happened to be in Rhode Island — Samuel Shaw, a midshipman, and Richard Marven, a third lieutenant — were jailed. In a petition read to Congress on July 23, 1778, they pleaded that they had been “arrested for doing what they then believed and still believe was nothing but their duty.”

Later that month, without any recorded dissent, Congress enacted America’s first whistle-blower-protection law: “That it is the duty of all persons in the service of the United States, as well as all other inhabitants thereof, to give the earliest information to Congress or any other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge.”

Maybe if the Tea Party could get over its obsession with Paul Revere riding to inform the British that Obamey Care was coming, they could look at some real constitutional issues and history.