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Prosecuting Whistleblowers Instead of Criminals

Speak No Evil

by MICHAEL McKEE

Long the disclaimer of those bearing bad news, the phrase “don’t shoot the messenger” may soon become a rallying cry of the American public.

Under an ostensibly liberal, Democratic president, government prosecutors have ushered in a new era of targeting whistleblowers. Prosecuting those responsible for the wrongdoings, meanwhile, has been made no such priority. The recent sentencing of former CIA officer John Kiriakou represents the latest example in the crackdown on leaks to the media and public.

So, the “good news” is, someone has finally gone to jail in connection to the U.S.’s policy of torture in the War on Terror. The bad news? It’s someone who helped bring the abhorrent practice to national attention, not any of the people who conducted or green-lighted that torture. As journalist Kevin Gosztola observed, “The only CIA officer to go to jail for torture is now officially an officer who never tortured anybody.” It’s probably not worth holding your breath (emphatically not a pun) waiting to see any of the waterboarding perpetrators brought to justice. Because when we’re dealing with war crimes, the law has come down hardest on those individuals bringing them to light.

Take the case of the headline-fetching “kill team” in Afghanistan’s Kandahar region throughout 2009. Here, a former Staff Sergeant Calvin Gibbs encouraged fellow soldiers to murder unarmed civilians as young as 15 without provocation and assist him in collecting body parts as trophies. At a spry 26, he became the highest-ranking official charged in the murders. His life sentence affords him eligibility for a generously early parole. While a handful of his subordinates have been dealt sentences ranging from three to 24 years, it is likely each of them, along with Gibbs, will be free within 10 years.

Then there’s the 2005 Haditha massacre where soldiers under the direction of former Staff Sergeant Frank Wuterich slaughtered 24 unarmed civilians in response to an IED detonation earlier that day. Despite testifying to giving a “negligent verbal order” and failing to identify targets or maintain “adequate tactical control” of his troops, Wuterich was discharged from the Marines under honorable conditions. He returned to his family and Connecticut home where he was celebrated with a fundraising golf tournament and awards of recognition from community groups.

More recently, in March of this year, the world learned of Staff Sergeant Robert Bales, who strolled out of his Afghanistan outpost to fatally shoot and stab families in two separate villages just before dawn. Of the 16 unarmed civilians he is accused of killing, nine were children. Although he faces the possibility of the death penalty at his upcoming court martial, Bales has complained of no ill treatment and has seamlessly integrated into the general, pre-trial population at Fort Leavenworth—a state-of-the-art military facility with private cells offering 35 square feet of unencumbered living space, along with windows and natural light.

Compare the three examples above with some of the individuals hounded for merely exposing government and military abuses. In addition to public disgrace and loss of livelihood, whistleblowers in some cases face life in prison, 150-year sentences with no chance of parole, and members of congress clamoring for their blood.

Former ethics adviser Jesselyn Radack paid for her critique of the violations in the John Walker Lindh case with her career at the Department of Justice—who really could use another ethics adviser, it seems. State Department official Peter Van Buren was stripped of his security clearances after two decades of service and assigned to menial telecommuting work after publishing a book critical of reconstruction efforts in Iraq.

In other cases, mainstream news outlets have been threatened with subpoena. Less mainstream ones, like WikiLeaks, have faced financial blockade and the threat of a U.S. sealed indictment for founder Julian Assange. For a picture of how this sort of persecution permeates the cultural landscape, one needn’t look farther than the tragic passing of Reddit co-founder Aaron Schwartz, who took his own life for sharing information restricted not for national security but for a subscription-based profit.

The most glaring example of the Obama administration’s prosecution of its critics, however, can be found in its unprecedented penchant for the archaic, WWI-era Espionage Act. In the past, the act was used to stifle and intimidate reformers, such as Eugene Debs, Emma Goldman and radical fringe publications like the New York Times. Those joining the club today are individuals accused of passing information not to enemy forces but to trusted media outlets read by the American public. All six of them say they are whistleblowers, not traitors.

Of the six Americans charged under the Espionage Act since 2009, Shamai Leibowitz, Stephen Jin-Woo Kim, Jeffrey Sterling, Thomas Drake and John Kiriakou may not be household names exactly. The sixth however, is well on his way to becoming one—if he’s not already.

Army private Bradley Manning, accused of passing government files to the media outlet WikiLeaks, approaches his 1,000th day behind bars awaiting trial in the most high-profile case the administration has pursued against its critics.

While already rife with human rights and procedural violations, the Manning trial threatens to set as dangerous a precedent for those serving in the military as the other five do for civilians. The prosecution contends Manning is guilty of “aiding the enemy” simply because he passed sensitive materials to WikiLeaks, knowing, once published, the material could in theory be accessed by any super villain clever enough to get his hands on an internet connection. Should the military court rule in their favor, soldiers in a unique position to speak out about mismanagement, abuses of power and atrocities would have serious cause to second-guess any thoughts about coming forward.

Within the past four years, the Obama Administration has brought charges against more whistleblowers than all other presidential administrations to date. Its special preference for the Espionage Act effectively erases the differentiation between whistleblowers and those committing treason. While the espionage charges were dropped in Kiriakou’s case as part of a plea bargain, its frivolous invocation has led journalists and activists from all stripes (it’s not every day Jerry Falwell and Noam Chomsky stand in the same camp) to raise concerns about the chill factor this policy invariably has on a free press and the informed public prerequisite to the democratic process.

In just four years, Attorney General Eric Holder set the dubious milestone of prosecuting more of his colleagues under the Espionage Act than all of his predecessors combined. Even Edwin Meese (whose approach to the office could be summed up with his 1985 quote, “If a person is innocent of a crime, then he is not a suspect”) knew better than to open this Pandora’s Box.

Prosecuting individuals of good standing who selectively disclose illuminative information with such apoplectic charges threatens free speech and public debate. The Los Angeles Times had picked up on the unsettling trend by 2010, describing “a quiet but malicious campaign against the news media and their sources.” Its editorial continues, noting, “It is one thing to protect information that might put Americans in danger or undermine national security; it is another to bring cases against whistleblowers and others who divulge information to spur debate and raise questions about public policy.

In all of the recent cases against whistleblowers, Americans are afforded a good look at just how the government has re-calibrated its measure of espionage and treason. After all, if offering background interviews with journalists is legally indistinguishable from palming microfilm for Lex Luther, it’s best to keep quiet, no matter what’s going on around you.

Although alarming, this trend doesn’t call for conspiracy theories, or even limiting criticism to one administration over another. After all, public opinion varies in all of these cases, while Americans as a group are wary of granting the label of whistleblower too freely. What the precedent set in the last four years does demand is some deep reflection about the rule of law, its application and whether we as a nation want to punish criminals or merely the outspoken witnesses of their crimes.

Michael McKee is a member of the Bradley Manning Support Network.