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When whistle-blowers suffer

Revealing government misconduct shouldn’t be a crime.

April 27, 2010|Jesselyn Radack

The case of Thomas A. Drake, a former National Security Agency official indicted last week on charges of providing classified information to a Baltimore Sun reporter, is painfully familiar. In 2002, I became the target of a leak investigation stemming from America's first post- 9/11 terrorism prosecution.


FOR THE RECORD:
Libby: An Op-Ed article on April 27 about whistle-blowers stated that I. Lewis "Scooter" Libby unmasked covert CIA operative Valerie Plame. Libby was convicted of obstruction of justice and perjury in the case, not for leaking her name. —

As a Justice Department ethics attorney, I had inadvertently learned of a court order for all copies of Justice's internal correspondence about the interrogation of the so-called American Taliban, John Walker Lindh. Although I had written more than a dozen e-mails on the subject, the Justice Department had turned over only two of them, neither of which reflected my conclusion that the FBI committed an ethics violation in its interrogation and that Lindh's confession might have to be sealed. I checked the hard-copy file, which had been a thick, stapled stack of paper. It had been reduced to three rather innocuous e-mails and fax cover sheets from my boss to senior Justice officials.

I resurrected the missing e-mails from the bowels of my computer archives, gave them to my boss and resigned. I also took home a copy of them in case they "disappeared" again. As a criminal case proceeded against Lindh — and the Justice Department, by all appearances, still had not turned over the e-mails — I decided to give them to the media.

The Justice Department then unleashed an investigation that had nothing to do with ascertaining why someone would divulge government documents, and everything to do with plugging the leak. Anonymous senior Justice officials smeared me in the media as a "traitor," "turncoat" and "terrorist sympathizer." They told my new employer, a private law firm, that I was a criminal and would steal client files. They leaned on the firm to fire me. The firm put me on unpaid, indefinite administrative leave instead. When I was awarded meager unemployment benefits, the government assisted the firm in contesting them.

As someone who has been the target of a ruthless leak investigation, I believe, and the Whistleblower Protection Act of 1989 says, that government employees should be protected, not retaliated against, when they disclose conduct evidencing illegality, fraud, waste or abuse.

The worst scandals of the past decade — including government torture and warrantless wiretapping — came to light because of whistle-blowers, derisively labeled "leakers." The bigger the crime, the more likely that the evidence of it was classified, privileged or subject to one of the more than 150 hybrid secrecy categories that ballooned during the George W. Bush years. Although a judge later deemed my e-mails nonclassified, their unclassified status didn't prevent the Justice Department from criminally investigating me, referring me to the state bars in which I'm licensed as a lawyer and putting me on the "no-fly" list.

I submit that Drake, the former NSA official, did not leak. He made valid disclosures revealing the failings of several major NSA programs that use computers to collect and sort electronic intelligence. These mistakes cost billions of dollars. He also described how the agency had rejected a program that would collect communications while protecting Americans' privacy — disclosures eerily similar to those made by Thomas M. Tamm, the former Justice Department lawyer who revealed the NSA's secret surveillance of Americans. Such disclosures are clearly in the public interest. They evidence a violation of law, a gross waste of funds and a patent abuse of authority — the very definition of a protected disclosure under the whistle-blower law.

Unfortunately, the terms "leaking" and "whistle-blowing" are often used synonymously to describe the public disclosure of information that is otherwise secret. Both acts have the effect of damaging the subject of the revelation. But leaking is quite different from blowing the whistle. The difference turns on the substance of the information disclosed. The Whistleblower Protection Act protects the disclosure of information that a government employee reasonably believes evidences fraud, waste, abuse or a danger to public health or safety. But far too often, whistle-blowers are retaliated against, with criminal prosecution being one of the sharpest weapons in the government's arsenal.

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