Revealing government misconduct shouldn't be a crime.
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.
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.
For example, Daniel Ellsberg, the patriarch of whistle-blowers in modern times, disclosed the Pentagon Papers, a secret government study of the Vietnam War, to the New York Times. The publication of the papers helped to end the Vietnam War. But Ellsberg was still prosecuted. Tamm revealed an indisputably illegal secret surveillance program, but he has been under criminal investigation since Dec. 30, 2005, a case that remains open. I am still under investigation by the Washington, D.C., bar after nearly seven years, despite the hypocrisy of the Justice Department in declining to prosecute -- much less refer to licensing bars -- the lawyers who wrote the torture memos related to detainees after 9/11.
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.
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.
Speaking truth to power is hard enough. Government employees should not have to choose their conscience over their career, or their very freedom.
Jesselyn Radack is the homeland security and human rights director of the Government Accountability Project, a nonprofit public interest group based in Washington.