Don't Ask, Don't Tell

The Republicans in the House are having themselves a high old time. Rather than addressing serious issues, they've been play-acting: holding the Attorney General in contempt; passing a bill to repeal "Obamacare;" and, now, going after journalists who publish leaks from government whistle blowers.

Expressing outrage over national security leaks, Republicans on a House Judiciary subcommittee pressed legal experts Wednesday on whether it was possible to prosecute reporters for publishing classified information.

The response was a qualified yes.

"Under certain circumstances, you can see that if someone acting with impunity and knowledge of the consequences goes ahead and publishes it, that is something that I think would be worthy of prosecution and punishment," said Kenneth Wainstein, a partner at Cadwalader, Wickersham & Taft who specializes in national security.

The hearing of the crime, terrorism and homeland security subcommittee follows publication in recent weeks in the New York Times and other outlets of detailed accounts about cyber warfare, the slaying of Osama bin Laden and alleged "kill lists" maintained for targeting foreign terrorists. ...

Rep. Trey Gowdy (R-S.C.) suggested that the U.S. attorneys subpoena journalists to determine the names of sources who provide classified information.

"Put them in front of the grand jury," Gowdy said. "You either answer the question or you're going to be held in contempt and go to jail, which is what I thought all reporters aspire to do anyway. I thought that was the crown jewel of the reporter's resume to actually go to jail protecting a source." ...

Rep. Hank Johnson (D-Ga.) said that some leaks revealed abuses, such as the Abu Ghraib prison scandal. He questioned why Congress should be so concerned about the current leaks when leaks had occurred in every administration.

Instead of looking for ways to go after journalists, the government should be focused on updating outdated laws like the Espionage Act in a way that will protect journalists and government interests, said Bruce Brown, a partner at Baker & Hostetler law firm.

"What's unfortunate is that rather than grappling with this question in a measured, rationale [sic] way, whenever disclosures are in the headlines then lawmakers have a tendency to latch on to this area," Brown said.

What? Approach an issue in a rational way? Oh, please. We're talking Republicans and we're coming up on an election.

To be fair, it's not just Republicans. The administration is none too pleased with the published leaks and it has gone after whistle blowers with a vengeance. But it hasn't so far threatened the journalists who are the recipients of the leaks.

Apparently the message the Republicans are sending to the media is that journalists should stick to what they do best: covering missing white women, shark attacks, and unedited GOP talking points. Straying from those beats will cause problems for everyone.

In other words, "Don't Ask, Don't Tell."

Truth To Power

There's an astounding op-ed piece in today's Los Angeles Times, and, no, I am not talking about Jonah Goldberg's latest smarm. Written by Jesselyn Radack, herself the target of harassment by the Justice Department for releasing information to the press when she was a Justice Department ethics attorney, the piece reminds us that there is a crucial difference between "leaker" and "whistleblower."

What undoubtedly provoked Ms. Radack's column was news that Thomas A. Drake, the former NSA official, had been indicted for releasing "classified" information to the press. She freely admits that the news brought back some unpleasant memories of what happened to her during her stint with the Justice Department and after, right up to the present day (she is still the subject of a DOJ investigation).

Here's a brief summary of the crime Mr. Drake allegedly committed:

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. ...

The common denominator of whistle-blowers is the same: They disclose information of significant public importance that reveals illegal, unconstitutional or dangerous conduct, often at the highest levels of government. The government should not be allowed to hide illegal conduct under official-sounding labels such as "classified," "privileged" or "state secrets," which confer an aura of legitimacy on alleged crimes, and whistle-blowers should not be prosecuted. The billions of dollars wasted on modernizing the NSA's vast eavesdropping system is what needs to be investigated, not Drake. [Emphasis added]

Mr. Drake has been charged, essentially, with leaking "classified" information. Here is where Ms. Radack's steps in to note the profound difference between the terms "whistleblower" and "leaker, and she gives the perfect example of the latter:

In contrast, when I. Lewis "Scooter" Libby, Vice President Dick Cheney's chief of staff, unmasked covert CIA operative Valerie Plame, he was not trying to disclose evidence of wrongdoing; in fact, quite the opposite. He put at risk national security and people's lives to undermine a critic. He was trying to punish former Ambassador Joseph Wilson by outing his wife. Libby was leaking, not whistle-blowing. His disclosure to the media had no intrinsic public value whatsoever, and he was rightly prosecuted and convicted. [Emphasis added]

The federal Whistleblower Protection Act of 1989 was designed to protect whistleblowers from retaliation so that evidence of fraud, waste, or illegality can be brought to the public's attention. Instead of abiding by that law, the federal government continues to punish people for pointing out activities that harm the public interest, often in critical ways. The hope, obviously, is that people like Thomas Drake and Jesselyn Radack and, yes, Daniel Ellsberg will be frightened into silence.

What is so outrageous about the current case is that it was filed with President Barack Obama's implicit approval.

I guess we shouldn't expect too much change out of this guy.