The National-Security State Persecutes Conscientious Objectors

The pattern of abuse that Barack Obama promised to remedy as a candidate—and then perpetuated as president
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The FBI pulled up to Jeffrey Scudder's house at 6 a.m. Agents emerged from a stream of black cars. Inside, "FBI agents followed his wife and daughters into their bedrooms as they got dressed, asking probing questions," the Washington Post reports. They proceeded to seize "every computer in the house, including a laptop his daughter had brought home from college for Thanksgiving. They took cellphones, storage devices, DVDs, a Nintendo Game Boy and a journal kept by his wife."

The intrusive, anxiety-inducing search came about because Scudder, a loyal CIA employee who has volunteered to risk his life in war zones, filed a Freedom of Information Act request to secure the release of documents the public has a right to see. That's the conclusion Greg Miller reaches in his July 4 feature on the case:

Scudder discovered a stack of articles, hundreds of histories of long-dormant conflicts and operations that he concluded were still being stored in secret years after they should have been shared with the public. To get them released, Scudder submitted a request under the Freedom of Information Act—a step that any citizen can take, but one that is highly unusual for a CIA employee .... His request set in motion a harrowing sequence.

He was confronted by supervisors and accused of mishandling classified information while assembling his FOIA request. His house was raided by the FBI and his family’s computers seized. Stripped of his job and his security clearance, Scudder said he agreed to retire last year after being told that if he refused, he risked losing much of his pension. In an interview, Scudder, 51, cast his ordeal as a struggle against “mindless” bureaucracy, but acknowledged that it was hard to see any winners in a case that derailed his CIA career, produced no criminal charges from the FBI, and ended with no guarantee that many of the articles he sought will be in the public domain anytime soon. “I submitted a FOIA and it basically destroyed my entire career,” Scudder said. 

Officials denied that the CIA retaliates against employees for filing FOIA requests. 

Classified information leaks from the federal government all the time. Sometimes it is strategically leaked by the White House. Other times, as when the identity of a CIA agent was inadvertently included in an official government release, the breach is accidental. National-security leaks come from members of Congress too. The powerful people behind these disclosures almost never face consequences. But when an employee of the national-security state starts to speak out about information that higher-ups don't want revealed, even when it poses no threat to national security, the U.S. government has amassed a troubling record of calling on the FBI to intimidate and harass the relevant party, sending a message to all.

Consider the similar experience of Thomas Drake. The Economist published a useful summary of his case in 2011:

Mr Drake, a former executive at the National Security Agency, was probed by investigators looking into the warrantless wiretapping leak, but they couldn't pin that misdeed on him. At the time, though, he admitted to talking to a reporter (an unauthorised act, but not illegal) and the Pentagon's inspector-general about problems at the NSA. So instead of charging him for the leak, they accused him of retaining in his personal files five classified documents... Three of the documents that could land Mr Drake in jail were copies of material he had submitted to the inspector-general in a complaint about a surveillance programme described by others as a "wasteful failure". The programme in question was abandoned in 2006 after eating up $1.2 billion. (Ms Mayer helpfully notes that the inspector general's website tells complainants to keep copies of their documents.) One of the other documents under scrutiny is a schedule of meetings marked "unclassified/for official use only". Prosecutors say the paper should've been secret and that Mr Drake should've known it should've been secret. The final document was declassified three months after Mr Drake's indictment.

Let's again put Mr Drake's actions in context. John Deutch, the former CIA director, Alberto Gonzales, the former attorney-general, and Sandy Berger, the former national security adviser, were all accused of similarly mishandling classified material. None of them received more than a slap on the wrist for their actions. (Mr Berger, who pled guilty to a misdemeanour charge, received the harshest punishment: two years probation. In one of the many ironies of this story, Mr Berger's defence lawyer was Lanny Breuer, who is now heading up the Drake prosecution.) Far from being an enemy of the state, Mr Drake appears to be a whistleblower who rubbed some people the wrong way. He complained to the inspector general and he spoke to a Baltimore Sun reporter about waste, mismanagment and illegalities at the NSA. For that he expected to lose his job. But, he maintains, he did not leak classified information, and he is not accused of such. 

Peter Van Buren added some context at Mother Jones, summing up the Obama administration's shameful and zealous persecution of whistleblowers in government:

The Obama administration has charged more people (six) under the Espionage Act for the alleged mishandling of classified information than all past presidencies combined. (Prior to Obama, there were only three such cases in American history, one being Daniel Ellsberg, of Nixon-era Pentagon Papers fame.) The most recent Espionage Act case is that of former CIA officer John Kiriakou, charged for allegedly disclosing classified information to journalists about the horrors of waterboarding. Meanwhile, his evil twin, former CIA officer Jose Rodriguez, has a best-selling book out bragging about the success of waterboarding and his own hand in the dirty work.

Obama's zeal in silencing leaks that don't make him look like a superhero extends beyond the deployment of the Espionage Act into a complex legal tangle of retaliatory practices, life-destroying threats, on-the-job harassment, and firings. Lots of firings.

Van Buren had a personal stake in the phenomenon:

The Department of State is in the process of firing me, seeking to make me the first person to suffer any sanction over the WikiLeaks disclosures. It's been a backdoor way of retaliating for my book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People, which was an honest account of State's waste and mismanagement in the "reconstruction" of Iraq. Unlike Bradley Manning, on trial under the Espionage Act for allegedly dumping a quarter million classified documents onto the Internet, my fireable offense was linking to just one of them at my blog. Just a link, mind you, not a leak. The document, still unconfirmed as authentic by the State Department even as they seek to force me out over it, is on the web and available to anyone with a mouse, from Kabul to Tehran to Des Moines. That document was discussed in several newspaper articles before—and after—I "disclosed" it with my link. It was a document that admittedly did make the US government look dumb, and that was evidently reason enough for the State Department to suspend my security clearance and seek to fire me, even after the Department of Justice declined to prosecute. Go ahead and click on a link yourself and commit what State now considers a crime.

There is also the case of William Binney, an NSA whistleblower who tried to complain through official government channels, as Edward Snowden's critics say he should have done. It didn't work:

We tried to stay for the better part of seven years inside the government trying to get the government to recognize the unconstitutional, illegal activity that they were doing and openly admit that and devise certain ways that would be constitutionally and legally acceptable to achieve the ends they were really after. And that just failed totally because no one in Congress or—we couldn't get anybody in the courts, and certainly the Department of Justice and inspector general's office didn't pay any attention to it. And all of the efforts we made just produced no change whatsoever. All it did was continue to get worse and expand.

His lawyer, Jesselyn Radack, who also represents two other NSA whistleblowers, added that they weren't just ignored. "Not only did they go through multiple and all the proper internal channels and they failed, but more than that, it was turned against them," she explained. "The inspector general was the one who gave their names to the Justice Department for criminal prosecution under the Espionage Act." 

Radack knows what her clients have gone through, for she was persecuted for whistleblowing during the Bush administration in a by-now-familiar series of events:

Radack's home detention of sorts began in November 2002, when she was effectively fired from Hawkins, Delafield & Wood, the Washington law firm where she'd been practicing housing law for just seven months after being forced out of the Justice Department's ethics unit in April 2002. An agent from DOJ's Inspector General's Office had spent the summer poking around her new office, informing Radack's co-workers that she was a "criminal," suspected of leaking to Newsweek emails she'd written while with the government that were critical of the FBI's interrogation of "American Taliban" John Walker Lindh. At first, Hawkins partner Cullen MacDonald was supportive, assuring Radack that it was a "hallmark of a government lawyer to be investigated." But by the fall, he demanded she sign an affidavit saying she didn't leak the emails, or resign. (For legal reasons, Radack still won't say whether she gave the emails to Newsweek, but she did claim protection under the Whistleblower Protection Act, which makes it illegal for a government agency to retaliate against someone who may have gone to the press.)

Things rapidly went from bad to worse. Last January, the Inspector General referred its leak report to the U.S. attorney in the District of Columbia for possible criminal prosecution. That office wouldn't say what crime she may or may not have committed; though since "leaking" isn't criminal, the charge presumably would be "theft of government property," or some similar offense. The case was finally dropped nine months later, on September 11, 2003, but in early November, the DOJ's Office of Professional Responsibility informed Radack that it had reported her to the Maryland and D.C. attorney regulatory authorities for violating confidentiality rules. The outcome of those inquiries won't be known for some time—whistleblowers are usually exempt from confidentiality rules—but even if Radack beats this latest rap, the damage to her reputation, to her ability to find work in Washington's close-knit legal and political community, may well be permanent.

This is how the national-security state treats people of conscience who dissent from the status quo, even when they break no laws and do no harm to national security.

And because of this treatment, national-security officials who insist that Snowden would've been treated fairly had he complained through official channels lack credibility. Under the last two presidents, whistleblowers have been treated more harshly than torturers, warrantless wiretappers, and perjurers. History will record these abuses as shameful stains on the legacies of George W. Bush and Barack Obama, who have been more loyal to the national-security state than law or morality.

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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