Going After Whistleblowers

Investigation

Going After Whistleblowers

Thomas Drake with lawyer Jesselyn Radack
EavesdroppingFormer National Security Agency senior executive Thomas Drake (with lawyer Jesselyn Radack, above) first tried to address concerns internally about the government’s illegal monitoring of the public. Eventually, however, the FBI raided his home.

Thomas Drake served in the Air Force for 10 years and had been a software systems specialist before he started performing contract work for the Central Intelligence Agency and the National Security Agency. His first day as a full-time NSA employee was September 11, 2001, and he soon found himself embroiled in multiple controversies surrounding the fateful events of that day.

Drake complained through internal channels that the NSA was considering an expensive computer system that would violate civil liberties by monitoring more information than was legal, despite the fact that he and others had worked on a less expensive and more efficient program that kept civil liberties intact. Drake also told two congressional inquiries on the 9/11 attacks that the NSA had information that could have helped prevent the attacks had the information been shared with other agencies, yet he was not asked to testify before the 9/11 Commission.

Drake then found himself the target of a leak investigation into the NSA’s warrantless wiretapping scandal. After reaching out to intelligence community oversight entities to no effect, Drake made legal disclosures of unclassified information to a Baltimore Sun reporter in 2006 that led to a series of award-winning articles that exposed the NSA’s billion-dollar Trailblazer surveillance program. The FBI raided Drake’s house in 2007, and he lived under a cloud of suspicion thereafter.

Drake hoped for a clean slate when President Barack Obama’s administration took over in 2009, promising transparency in government, but he was indicted by Obama’s Department of Justice in 2010 under the Espionage Act for improper “retention” of classified material.

Drake was following in the patriotic footsteps of famed whistleblower Daniel Ellsberg, a RAND Corporation analyst who exposed the government’s fraudulent case for continuing the Vietnam War by leaking what became known as “The Pentagon Papers” to the New York Times in 1971. Ellsberg was indicted for theft and espionage but was ultimately exonerated when all charges were dismissed due to government misconduct.

Gen. David Petraeus
Who do you know?Despite recommendations by the FBI and the Department of Justice that he be charged with a felony, retired Gen. David Petraeus pleaded guilty to a misdemeanor after he was found to have leaked information to his biographer, Paula Broadwell, with whom he was having an affair.

Likely the most famous case of whistleblowing of all time involved a source known as Deep Throat (who turned out to be William Mark Felt Sr., an FBI official), who revealed to The Washington Post reporters Bob Woodward and Carl Bernstein crimes committed by Republican operatives. The resulting Watergate scandal caused President Nixon to resign and landed 25 conspirators in jail.

The Department of Justice eventually dropped its 10-count felony indictment against Drake in exchange for him pleading to a misdemeanor of “exceeding authorized use of a computer.” In an interview with the Real News Network, Drake hinted that the NSA targeted him because of his testimony about the agency’s culpability in the 9/11 attacks. He added, “There was actually an entire intelligence report that they had done prior—months and months. … [N]ot every single hijacker, but most of them, were known.”

Further concern about government overreach in Drake’s prosecution was revealed in March when the Office of Special Counsel (OSC)—a federal watchdog entity—concluded there was a “substantial likelihood” that the Pentagon’s Office of the Inspector General (OIG) had destroyed evidence during its handling of Drake’s case.

Sen. Chuck Grassley, a Republican from Iowa, has been one of Congress’ most sympathetic members to whistleblowers, co-founding and chairing the Senate Whistleblower Protection Caucus in February 2015. “These are very serious allegations against [Department of Defense] OIG senior leaders,” Grassley, the chairman of the Senate Judiciary Committee, said in a statement to McClatchy. “This kind of behavior isn’t just bad for the whistleblower. It’s also bad for the agency. If whistleblowers can’t get a fair shake, then they won’t make disclosures, and wrongdoing will just continue.”

“If whistleblowers can’t get a fair shake, then they won’t make disclosures, and wrongdoing will just continue.”

Senator Chuck Grassley

“The Obama administration has presided over the most draconian crackdown on national security and intelligence-community whistleblowers in U.S. history,” said former Department of Justice whistleblower and current human-rights attorney Jesselyn Radack at a February press conference at the National Press Club that called for Obama to pardon Central Intelligence Agency (CIA) whistleblower Jeffrey Sterling. “The Justice Department has used the antiquated Espionage Act as a bludgeon to threaten, silence and imprison whistleblowers for alleged mishandling of classified information,” she said. “Meanwhile, powerful, politically connected individuals accused of the same conduct receive a slap on the wrist, or no punishment at all. Some even run for president of the U.S.”

Radack’s comment about the politically connected was a thinly veiled reference to Gen. David Petraeus, who did not receive jail time for disclosing classified information, and to former secretary of state and current Democratic presidential front-runner Hillary Clinton, who has been accused of passing along classified information. Conversely, NSA whistleblowers Drake, Edward Snowden and Army Private Bradley (now Chelsea) Manning, and CIA whistleblowers Sterling and John Kiriakou, among others, have been doggedly pursued.

Massachusetts Institute of Technology professor and acclaimed historian Noam Chomsky told Freedom, “The harsh punishment of whistleblowers by the Obama administration, reaching unprecedented heights, is a severe attack on the right of citizens to know what their elected representatives are doing, a core principle of functioning democracy.”

THE PUBLIC SECTOR AND CIVIL SERVANTS

Whistleblowers don’t necessarily have to work for government agencies or reveal violations of the Bill of Rights, though. They can expose racist, sexist, bigoted or otherwise unfair, unhealthy, fraudulent or illegal business practices by the corporations or companies that employ them. However, the Whistleblower Protection Act—a law that protects government employees from retaliatory action against them after they have exposed violations of laws or regulations, gross mismanagement, abuse of authority, etc.—does not apply to employees of private companies, who are protected by the Sarbanes-Oxley Act.

Walmart, the world’s largest private employer, has been subject to a variety of employee whistleblower cases. The company recently lost and is appealing a case concerning New Hampshire pharmacist Maureen McPadden, who was fired in 2012 for allegedly losing her key to the pharmacy. McPadden then sued for gender discrimination, claiming that a male employee was not fired for the same offense and that her firing was retaliation for blowing the whistle on unsafe pharmacy conditions.

McPadden’s complaint alleged that Walmart had “negligently trained and supervised the pharmacy staff” at her store in Seabrook, New Hampshire, and that “constant turnover, understaffing and inexperienced staff created a serious threat to the safety of patients and resulted in regulatory violations regarding the safe practice of pharmacy.”

A jury ruled in McPadden’s favor in January, awarding her more than $31 million in penalties, including $15 million in punitive damages for gender discrimination under federal law and $15 million for “enhanced compensatory damages” under state law. The federal ruling, however, was automatically reduced to $300,000 due to statutory protection for companies with more than 500 employees.

Rick Fradette, McPadden’s attorney, is proud of her for standing up to Walmart and will continue the legal battle as the company tries to appeal the ruling, with most of the fight being over the $15 million under state law.

“It is frightening that prescriptions were being filled by untrained staff because Walmart wouldn’t keep the pharmacy technician staff properly trained and staffed,” Fradette told Freedom. “I believe the jury was insulted by this disregard for the truth, especially where pharmacist McPadden was protecting the public and trying to deliver the type of pharmacy service that Walmart advertised to the public.”

ILLEGAL MARKETING OF DRUGS

Whistleblowers are often motivated by the desire to protect public health. Pharmaceutical-industry whistleblower James Wetta had similar motivation in 2004 when he revealed that AstraZeneca was marketing its schizophrenia drug Seroquel for uses not approved by regulators. Wetta, a former AstraZeneca salesman, was later joined by psychiatrist Stefan Kruszewski, who claimed the company was misrepresenting the drug’s risks and benefits. The two ultimately split a $45 million award after AstraZeneca settled claims of illegally marketing Seroquel.

Brazil’s Guanabara Bay, into which hundreds of tons of untreated sewage flow annually
Unsafe waters Former chief executive of World Sailing, Peter Sowrey, attempted to move the summer Olympic sailing competition from Brazil’s Guanabara Bay, into which hundreds of tons of untreated sewage flow annually, to a cleaner location. For his troubles, he claims he was fired.

More recently, Peter Sowrey, a former chief executive for World Sailing, claimed he was fired last year because he tried to move the 2016 Olympic sailing competition from Brazil’s dangerously polluted Guanabara Bay in Rio de Janeiro to a cleaner coastal resort 100 miles away. Guanabara Bay had been selected because the backdrop of Rio’s Sugarloaf Mountain and the Christ the Redeemer statue will look impressive on television.

Hundreds of tons of untreated sewage flow into the bay every year, which understandably concerns Sowrey, and the promised sanitation efforts have not made the water significantly safer for competitors. “The board felt I was way too aggressive,” Sowrey told the Associated Press. “They basically voted me out. I didn’t resign. The board finally told me to leave.” Sowrey said, “I was perplexed why there was no backup sailing plan. It’s only sailing after all, it’s not curing cancer.” The AP reported that its independent testing revealed “disease-causing viruses linked to human sewage at levels thousands of times above what would be considered alarming in the U.S. or Europe.”

Whistleblowers often wear the uniforms and perform the duties of civil servants. Firefighters and police officers, for example, have often brought corruption to light. Police Sgt. James Corcoran, for example, claimed he was forced into retirement for reporting a variety of corruption involving Bell, California, officials in 2009. The allegations included voter fraud, unlawful vehicle seizures and illegally selling building permits. Corcoran sued the city and won, receiving a settlement that included $400,000 and the reinstatement of his job. Some legal observers felt he could have won $3 million if he’d taken the case to trial.

Corcoran’s motives as a whistleblower, however, were pure. He told the LA Times that he settled for the deal “to go back to work. To go back to my profession. It’s a matter of professional pride.” He added that he was also “looking out for my city,” not wanting to burden Bell with a much larger financial payout.

EMBARRASSING THE GOVERNMENT

In 2015, Jeffrey Sterling was convicted under the Espionage Act of 1917, after he related information to New York Times reporter James Risen about CIA mismanagement of a classified program called Operation Merlin, which was designed to provide faulty nuclear blueprints to Iran.

Former Mayor of Bell, California, Robert Rizzo
Brought to JusticeFormer mayor of Bell, California, Robert Rizzo, was sentenced to 12 years in prison for his role in a corruption scandal that severely damaged one of Los Angeles County’s poorest cities. The scandal came to light in part because Bell Police Department Sgt. James Corcoran blew the whistle.

Sterling had filed a racial-discrimination lawsuit against the CIA, was put on administrative leave, then had his contract terminated in 2002. He told the Senate Intelligence Committee in 2003 that Operation Merlin had been botched and that the Iranians not only knew the blueprints were bad, but they also might have learned important information from them. Sterling and Risen communicated several times between 2002 and 2004.

Sterling was questioned by the FBI in 2003 and again in 2006 after Risen’s book State of War: The Secret History of the CIA and the Bush Administration was released. However, Sterling wasn’t arrested until January 2011, five years after the FBI searched his home.

Sterling’s arrest appears to have been politically motivated. Dennis Blair, who served as the director of national intelligence during Obama’s first term, told the New York Times that there had been a decision to “hang an admiral once in awhile” to discourage would-be leakers and whistleblowers from speaking to the press. Sterling was sentenced to three and a half years in prison.

CIA TORTURE

John Kiriakou, a CIA analyst and case officer who blew the whistle on the agency for the torture its agents committed, was sentenced to two and a half years in prison in January 2013. He accepted a plea deal after he admitted to a single count of revealing the identity of an undercover officer involved in the torture program to a reporter who did not publish the name.

CIA torture chamber Salt Pit
Cruel and UnusualNorth of Kabul, Afghanistan, the CIA converted a former brick factory into a torture chamber known both as the Salt Pit and Cobalt—which led to the death of one detainee and ruthless torture of a wrongly identified German citizen. CIA analyst John Kiriakou blew the whistle on the illegal operation, and went to jail for it.

“I did tell this reporter this gentleman’s name. I didn’t actually volunteer it. I confirmed it. He already had it,” Kiriakou told Democracy Now! “But the reporter was going to write an article saying that this man was instrumental in the torture program, and that wasn’t true. He was a good man. He had nothing to do with torture. He happened to be working in the rendition program. And I was trying to correct the record,” Kiriakou said.

Edward Snowden, according to Kiriakou, performed a “great national service” by revealing the NSA’s illegal surveillance programs and would not receive a fair trial if he returned to the U.S.

Now an associate fellow at the Institute for Policy Studies, Kiriakou also took Hillary Clinton to task for getting her facts wrong in a debate among Democratic Party presidential candidates in October. She claimed Snowden would have had the Whistleblower Protection Act on his side if he had made his revelations while he was still in the U.S.

“I’m disappointed, frankly, that somebody running for president of the United States doesn’t know that the Whistleblower Protection Act exempts national-security whistleblowers,” Kiriakou said. “There are no protections for you if you work for the CIA, NSA, or other federal intelligence agencies—or serve them as a contractor. You take a grave personal risk if you decide to report wrongdoing, and there’s nobody who can protect you,” Kiriakou wrote in an editorial for otherwords.org.

There had been a decision to “hang an admiral once in a while” to discourage would-be leakers and whistleblowers from speaking to the press.

When asked by Freedom whether he thought Clinton could simply have been misinformed or was trying to score political points, Kiriakou said he felt it was the latter. “I think she was disingenuously trying to show ‘toughness’ on national security issues. Certainly, Hillary Clinton is bright enough to understand the Patriot Act, to understand the prohibition on warrantless wiretapping, and to understand our constitutional protections. She has chosen to ignore those, however, on the Snowden case,” Kiriakou wrote in an email. “I would posit that her position on Snowden does not make her look tough on national security. It makes her look weak on civil liberties. It makes it look like she doesn’t care about the protections that all Americans have against a government that has gone out of control. Instead of calling for Snowden’s prosecution, she should be celebrating people like Snowden and like Tom Drake. They are the only things standing between us and authoritarianism.”

Drake’s mistreatment by the administrations of George W. Bush and Obama was cited by Snowden as the reason he pursued avenues outside of the system to alert the world to the NSA’s secret surveillance program.

A DOUBLE STANDARD

Steven Aftergood tracks the American intelligence community on his Secrecy News blog for the Federation of American Scientists. In 2014, Aftergood co-wrote an editorial with now former Rep. Rush Holt, a Democrat from Nebraska, titled, “Who Watches the Watchmen?” The pair expressed concern about how the House Permanent Select Committee on Intelligence (HPSCI)—tasked with overseeing the nation’s spy agencies—appeared to have become compromised. Former committee chairman Holt wrote, “Most members of the committee see their role as enabling the intelligence agencies to operate unencumbered, even to the extent of allowing the Intelligence Community to make the American public a target in order to protect the public.”

Aftergood maintains a more optimistic overall view than many of his peers, but he said there is still much work to do. “There is still no satisfactory process for intelligence whistleblowers to challenge the system without suffering inordinate negative consequences,” Aftergood told Freedom.

In April, Director of National Intelligence James Clapper announced an initiative to establish an Intelligence Transparency Council that includes representatives from each of the 17 member agencies in the intelligence community. “I think they do believe that they need to do something, and that’s what they want to figure out,” Aftergood said.

The Office of the Director of National Intelligence (ODNI) has a ways to go, however. The Project on Government Oversight (POGO) and 21 supporting organizations submitted a letter in January to the Inspector General of the Intelligence Community protesting how ODNI was lumping in whistleblowers with deranged killers in an informational webinar.

“ODNI recently gravely mischaracterized whistleblower Thomas Drake as an ‘insider threat,’ placing him in the same category as Fort Hood shooter Nidal Hasan and Navy Yard killer Aaron Alexis,” the POGO letter stated. “This kind of wanton misuse of the term ‘threat’ demonstrates that this program fails to distinguish between those who want to fix problems from those who wish to do harm to our national security.”

Liz Hempowicz, public policy associate at POGO, said in an email to Freedom, “It is an egregious assault on the character of whistleblowers who seek to do nothing more than expose and fix fraud, waste and abuse within our government. Rather than vilify these people, we should be thanking them.”

She added, “It only gets worse when you compare the treatment of whistleblowers to that of high ranking officials who also leak government information to further their own personal agendas. People like General David Petraeus and former CIA Director Leon Panetta receive paltry, if any, punishment for their self-aggrandizing actions. There are some within the intelligence community that incorrectly claim that the law exempts senior officials from the same punishments and accountability because they know better than anyone else what information should or shouldn’t be classified. With no basis in law, this is just another excuse to allow our government to give preferential treatment to those who further its agenda.”