Privacy SOS

Is there something in the White House water?

How can a President who vowed to strive for “an unprecedented level of openness in Government” and ordered the CIA to make sure it followed the Army Field Manual interrogation guidelines on his first day in office become so totally obsessed with stopping leaks at the expense of achieving transparency and accountability?

On April 3, 2012 the Obama Administration brought its first indictment against a CIA official involved in the torture morass carried out by the Bush Administration. Trouble is, John Kiriakou wasn’t personally responsible for the coercive techniques used on a captured al Qaeda suspect, Abu Zubaydah. Rather, he exposed what the CIA was doing in an ABC News interview and gave waterboarding its proper name: torture.

Kiriakou was arrested in January and accused of under the 1917 Espionage Act and the Intelligence Identities Act of leaking to the New York Times the name of the CIA agent who tortured Abu Zubaydah, a charge he strongly denied. He is the sixth whistleblower to be indicted under the 1917 Espionage Act brought by the Obama Administration. The full roster is here.   

You would have thought the Administration would have learned something from its case against former NSA executive Thomas Drake, another whistleblower who sought “transparency” to reform NSA waste, mismanagement and abuse of power.  A former Air Force pilot and CIA analyst, Drake favored a 3 million dollar terrorist hunting, data sifting project named ThinThread over the considerably more expensive $1.2 billion program called Trailblazer which did not include ThinThread’s privacy protections. Then-NSA head Michael Hayden opted for Trailblazer, which later had to be abandoned as a failure that was hundreds of millions of dollars over budget.   

Drake had taken his concerns to senior agency officials but got nowhere. He had also testified before two Congressional inquiries about NSA shortcomings that contributed to the 9/11 attacks. In 2006, according to the prosecution, he sent classified documents to Siobhan Gorman, a reporter for the Baltimore Sun, who wrote articles critical of NSA mismanagement, including one in May 2006 headlined, “NSA rejected system that sifted phone data legally; Dropping of privacy safeguards after 9/11, turf battles blamed.”  

The Obama Administration’s Espionage Act prosecution of Drake melted down after federal judge Richard Bennett ruled that the government would have to show to the jury some of the allegedly classified documents that Drake was accused of holding at home. This led prosecutors to withdraw four of the documents and redact information from another two about “NSA’s targeting of a particular telecommunications technology.” 

Drake had faced up to 35 years in prison.  He was then offered a plea deal which he was originally reluctant to take as he did not want to admit he had committed a crime. He finally agreed to plead guilty to a misdemeanor of misusing the agency’s computer system by providing information to a Baltimore Sun reporter.   

Although journalists haven’t (yet) been charged under the Espionage Act they are feeling the heat. New York Times journalist James Risen was served with a subpoena ordering him to testify at the trial of former CIA officer Jeffrey Sterling, who is suspected of leaking information about the Agency’s failed attempt to sabotage Iran’s nuclear program under the Clinton Administration.  

Risen, who wrote about the sabotage attempt in his book State of War, has said he would fight the subpoena: “I will always protect my sources, and I think this is a fight about the First Amendment and the freedom of the press.”  He wrote in a June 2011 affidavit sent to the US District Court in the Eastern District of Virginia that “I have learned from an individual who testified before a grand jury in this District that was examining my reporting about the domestic wiretapping program that the Government had shown this individual copies of telephone records relating to calls made to and from me." 

Waiting in the wings but yet to be charged is a former CIA acting general counsel, John Rizzo. The Justice Department is investigating whether he released classified information when he told Newsweek how CIA officials chose suspects for their drone strikes  (“ready for prime time”) and the protocol followed when he signed off on their death sentences. 

Wouldn’t it be something if “the most influential career lawyer in CIA history” were to find himself indicted under the Espionage Act? At one point that would have seemed just about as unlikely as the about face on so many Constitutional issues carried out by the Obama Administration.  

© 2021 ACLU of Massachusetts.