Democracy

The Silencing of the Whistleblowers

Studying the actions of the Founding Fathers gives us insight into their reasons and motives when they created what would become a unique blueprint for a government of a former UK colony that had rebelled and broken away from its ruler. After the harsh and long hard-fought war, they had finally shaken themselves of the monarchy of King George. They were all too aware of what they didn't like about the King; and, they were determined to create a new government that would avoid the trappings of a monarchy whose absolute power was used to oppress the population for its own benefit. They initially wrote the Constitution which described what those in government could do. Worried about the potential for abuse of power by an unchecked government, the Founding Fathers knew that they needed a balancing mechanism: an accounting of what the government could not do. They needed something that would promote the coexistence of both power and freedom in the newly-formed democracy. The counter-balance to the power wielded by the Constitution were the freedoms and protections provided by the Bill of Rights.

The Bill's preamble explained the matter this way: "...in order to prevent misconstruction or abuse of [the government's] powers, that further declaratory and restrictive clauses should be added." Thomas Jefferson commented separately, "[A] bill of rights is what the people are entitled to against every government on earth.” With their lengthy list of grievances against the King, the Founding Fathers methodically and meticulously addressed each and every one through the Bill of Rights amendments. Their collective purpose was to create a set of freedoms that could not be repealed, and kept the government sufficiently bridled.

It needs to be said that those imperfect men were very much of their era. They were right about much, but desperately wrong about other things. They addressed humanity but ignored the rights of women and Native Americans. Above all, they did not abolish the institution of slavery, our nation's Original Sin. It would take many years, and much blood, to begin to rectify those mistakes.

But, slowly over the subsequent two centuries, the meaning of the Bill of Rights was expanded and made more all-inclusive. Slaves were granted citizenship. Native Americans were granted citizenship. During wars, the Bill was temporarily suspended but subsequently reenacted. And, the basic principles that guided America remained intact over many years.

All of that came to an abrupt end one September morning, and a new era commenced. And so began the process of chipping away at the Bill of Rights, which the Founding Fathers considered as permanent as if it had been etched on a marble slab. As freedoms are lost, the reciprocal government power is gained. The checks and balances that our Founding Fathers deemed so critically important have yielded to one side. Our government now has an eery resemblance to what our Founding Fathers feared most in their predecessor.

The First Amendment was meant to make one thing indisputably clear: free speech is the cornerstone of a government of the people and by the people. Without freedom of expression; a free press; the right to openly gather, debate, protest; and petition the government for redress of grievances, there can be no democracy. As long as the public has a right to both praise and criticize its government, they can hold the government accountable and contain its power.

“By availing to the public documents that have been generated by government officials, the public is essentially able to watch the official's action taking place behind closed doors.” —John Adams

For many years there was a tacit symbiotic relationship between the press and the government. Government officials would routinely speak to the press, albeit sometimes off the record. In turn, the press would inform the public about what they had learned. Thus, the press served as the conduit between the government and the public.

In 1966, Johnson signed into law the Freedom of Information Act that formalized the process of providing government records to both the press and the public. Its purpose was to provide transparency by exposing the inner workings of the government to the public, with the exception of national security matters and personal information. The FOIA commenced with a presumption that it was the government's duty to make information readily available to the people.

Three decades and ten Congressional amendments and executive orders later, the FOIA system now works very differently. Agencies loath to release documents of any sort and instead put their efforts towards creating roadblocks to legitimate requests. By 2010, almost one million government documents were classified as exempt from FOIA disclosure. Absent a court order compelling disclosure, NSA simply denies essentially all FOIA requests. Our once open and transparent government is now shrouded in secrecy. Without access to information regarding government workings, there is no free and open press. The loss of our FOIA right is also a loss of our First Amendment right.

With FOIA disclosures reduced to a mere dribble, and government officials willing to give nothing more than platitudes to the press, there are few ways left with which to discover the inner workings of the government. This censorship has resulted in whistleblowing becoming a more important source of inside government information. By definition, a whistleblower is a person, usually an employee, who reports wrongdoing by the employer agency to an outside source, usually the press. After committing a meritorious act by disclosing wrongful conduct, the employee often finds himself alone, disenfranchised and without a job.

To encourage whistleblowing as a means of discovering government corruption, and to prevent retaliatory discharge, Congress passed the Whistleblower Protection Act in 1989. The legislation asserts that those who report government wrongdoing are exercising their First Amendment right of free speech, and are a protected class, who cannot be subject to dismissal. As a result of the Whistleblowing Act, government employees could feel more confident that their lives would not be turned upside down after acting on behalf of the public interest.

Like the FOIA, the WPA has become more or less obsolete. In a 2006 case, Garcetti v Ceballos, SCOTUS ruled that employees do not have First Amendment protections against retaliation when they report misconduct while in their official capacity. By removing the First Amendment protections, the ruling left only a tiny portion of whistleblowers covered under the Act. Not surprisingly, 98% of whistleblowers' appeals are denied. The Congress giveth, and the Supreme Court taketh away. Both the FOIA and the WPA, which grew out of the First Amendment, have essentially been eviscerated.

With the government now obsessively hiding behind an iron curtain of secrecy, and open contact between government officials and journalists all but banned, the whistleblower has become the icon figure of the era. Not surprisingly, however, anyone who does in good conscience, blow the whistle, has in recent years come under fierce attack and suffered harsh consequences.

In light of government censorship and its suspension of the Bill of Rights, there have been numerous whistleblowers who have come forward. Tom Drake and William Binney exposed post 9/11 NSA efforts to turn its spy tools on all Americans in violation of the Fourth Amendment. Both lost their jobs at NSA, were framed by government officials, and indicted. They managed to prove the misconduct, and the charges were eventually dropped, but not before their lives were turned upside down.

Edward Snowden followed in their footsteps. But, rather than going through the normal channels like Drake and Binney, Snowden leaked information proving that the government has its own citizens as well as many foreigners under constant surveillance. Many Americans are followed by NSA from the moment they leave their houses in the morning until they return home at night. After Snowden's revelation, CIA Director Clapper was forced to admit that for years he had lied to the public when he denied wholesale spying. Clapper kept his job, and Mr. Snowden ended up in exile in Russia. To date, NSA has made few changes to its all-encompassing surveillance system.

John Kiriakou, a former CIA agent publicly acknowledged that the CIA committed torture during the Bush administration. He was initially indicted for one count of violating the Intelligence Identities Protection Act, three counts of violating the Espionage Act, and one count of making false statements for allegedly lying to the CIA. Kiriakou ultimately pleaded guilty to one count of violating the Intelligence Identities Protection Act and was sentenced to 30 months in prison.

After Kiriakou's conviction, General David Petraeus, then CIA director stated: "This case yielded the first IIPA successful prosecution in 27 years, and it marks an important victory for our Agency, for our Intelligence Community, and for our country. Oaths do matter, and there are indeed consequences for those who believe they are above the laws." Within a year, Petraeus himself would plead guilty to exposing the names of CIA operatives and lying to the FBI. He leaked eight journals, which contained the names and code names of CIA operatives, and his notes taken during top secret CIA meetings, to his mistress. He was not indicted under the IIPA, but rather received two years probation and a $40K fine.

In all, the Obama administration has charged eight people under that act for allegedly disclosing classified information; more than any of the previous Administrations combined.

The nuclear option against whistleblower truthtellers is the Espionage Act; a law that offended the Constitution when implemented in the midst of World War I. Although ignored for many years, it has been resurrected by the Obama administration as a blunt wartime tool for silencing and punishing whistleblowers. In all, the Obama administration has charged eight people under that act for allegedly disclosing classified information; more than any of the previous Administrations combined. None of those charged were spies. None sought to aid and abet a foreign enemy or to make money selling secrets. But, to the administration, that doesn't matter.

In the Espionage Act case of State Department contractor Stephen Kim, a judge departed from previous precedent ruling that the prosecution had the burden of proving that the information allegedly leaked to a Fox news reporter from a CIA report on North Korea could damage US national security or benefit a foreign power. Worried that he would be convicted and nationally disgraced, Kim pleaded guilty to one charge and was sentenced to 30 months in prison.

While working at the CIA, Jeffrey Sterling had filed a lawsuit against his employer alleging racial discrimination. He lost the case and was subsequently fired from his CIA position. Some years later, Mr. Sterling was accused of leaking classified information to journalist James Risen, who thereafter included said information in a book that he authored. By the time the book was written, the information was no longer considered a threat to national security. Despite this fact, Sterling was indicted under the Espionage Act, pleaded innocent and went to trial. During the trial, Risen never identified Sterling as his source, and therefore all evidence against Sterling was circumstantial. This fact did not stop a jury from convicting Sterling, and he was sentenced to 3 ½ years in prison. Sterling is currently serving time and is suffering from health issues that are not being properly medically treated, according to his wife.

While the Obama administration has been excessively harsh on government officials and journalists caught with classified information, it has been exceptionally lenient when dealing with its own high-ranking officials. General Petraeus was never indicted for disclosing the most highly classified information since Jonathon Pollard, who spent 30 years behind bars. Likewise, former Secretary of State, Hillary Clinton breached Federal national security statutes when she placed hundreds of classified documents, including those labeled “top secret” on a private unencrypted server. Clinton was not only not indicted, she remains qualified to be POTUS.

While the Obama administration has been excessively harsh on government officials and journalists caught with classified information, it has been exceptionally lenient when dealing with its own high-ranking officials.

Where's the Outrage?

Clearly, our Bill of Rights guaranteed freedoms are being stripped from us, one by one. The First Amendment no longer protects journalists, protesters, or whistleblowers acting on behalf of the public interest. Warrantless searches, NSA broad scope surveillance, civil asset forfeitures, cops killing unarmed civilians, and Obama's drone assassination programs are all violations of our Fourth Amendment right to due process of law. The National Defense Authorization Act, which permits and the imprisonment of citizens without evidence or trial, is a clear violation of our Fifth Amendment right.

The days of King George's ultimate and unjust power have returned. However, this time, it is not the power of a foreign ruler that has bequeathed a heavy hand upon us. Instead, it is our very own government. It is our own elected officials who are running amok. We have become the very nation that the Founding Fathers tried so very hard to prevent. Thomas Jefferson said that we need a revolution every generation. We have already waited too long. It is time to stand up and fight to resurrect our inalienable rights that are so dear to us and our democracy. We must do whatever it takes to change the system while we still have something to fight for.

Democracy

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