Prosecutor William Welch II is up to his old tricks at the helm of Obama's record-breaking Espionage Act prosecutions against so-called "leakers," who are more often than not whistleblowers. Politico's Josh Gerstein reported last week that a federal Judge took the extreme step of barring two government witnesses from testifying in the Espionage Act case against former Central Intelligence Agency (CIA) employee Jeffery Sterling because Welch's team withheld impeachment evidence from the defense.
For those non-lawyers - Criminal Procedure 101 teaches would-be attorneys that prosecutors have a duty to provide the defense with exculpatory or impeachment evidence. It's a basic principle, which any first-year law student should know, and which, apparently, "bully" prosecutor Welch frequently forgets, or worse, ignores.
Welch's failure to hand over exculpatory evidence is not unique to the Sterling case. In the completely-failed Espionage Act case against National Security Agency (NSA) whistleblower Thomas Drake, Welch's tactics included keeping potentially exculpatory evidence from Drake's defense team for months after the Indictment was handed down. For over six months, Welch's team failed to produce evidence that one of the allegedly classified documents Drake was charged with improperly retaining was declassified two months after the indictment. Welch waited ten months to turn over evidence that another document that formed the basis of an Espionage Act charge against Drake had been – in the words of Drake's criminal defense team –
. . . published as 'unclassified' and had never been deemed 'classified' until after it was recovered from Mr. Drake's home. (Emphasis added).
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Senior Republican Senator Chuck Grassley (R-Iowa) called for the resignation of Justice Department Criminal Division head, Lanney Breuer, after Breuer denied knowing details of the controversial "Fast and Furious" operation. The Washington Post reports:
The “Fast and Furious” program was meant to track guns as they made their way south of the border to senior members of Mexican drug cartels after being bought by straw buyers. However, ATF agents rarely pursued the weapons after they were bought.
Grassley said Breuer hurt his own credibility by initially denying details of the program.
Breuer might be wise to consider Grassley's request in light of the debacle his Criminal Division made out of the failed Espionage Act prosecution against National Security Agency (NSA) whistleblower Thomas Drake.
When the Drake indictment was handed down, Breuer wildly overstated the case against Drake in a Justice Department press release:
Our national security demands that the sort of conduct alleged here – violating the government’s trust by illegally retaining and disclosing classified information – be prosecuted and prosecuted vigorously. . .
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 Tom Drake and Jesselyn Radack at the Ridenhour Prize for Truthtelling Ceremony in March 2011GAP National Security & Human Rights Director and Justice Department whistleblower Jesselyn Radack, and GAP client and National Security Agency (NSA) whistleblower Thomas Drake, have won this year's prestigious Sam Adams Award, presented annually by the Sam Adams Associates for Integrity in Intelligence (SAAII). The honor is presented to intelligence professionals who have taken stands for ethics and integrity.
The award will be presented to Radack and Drake at a free event this coming Monday, November 21, at 8:10 p.m. at the Ward Circle Building, Room 2, at American University. Speakers at the ceremony include FBI whistleblower Coleen Rowley (a previous winner of the award), retired Col. Larry Wilkerson (another winner), American University Nuclear Studies Institute professor Peter Kuznick, and veteran CIA analyst and activist Ray McGovern.
Department of Justice (DOJ) whistleblower Jesselyn Radack is a former ethics adviser who disclosed that the FBI committed ethical violations in its interrogation of "American Taliban" John Walker Lindh, such as interrogating Lindh without an attorney present. She also exposed that the DOJ attempted to suppress that information, and former Attorney General John Ashcroft made misleading public statements about the case. The Lindh case was the first major terrorism prosecution after 9/11. Since her ordeal, Radack has been a champion of whistleblowers, recently serving as counsel to Drake on whistleblower issues during the government's failed attempt to prosecute him under the Espionage Act.
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Apparently the government has learned nothing from the spectacular collapse of the ill-fated criminal prosecution of National Security Agency (NSA) whistleblower Thomas Drake. Drake was charged with 10 felony counts, all of which the government abandoned days before trial when the prosecution's case fell apart in the face of adverse court rulings and overwhelmingly negative media coverage (such as in The New Yorker and 60 Minutes). Drake pleaded to a minor misdemeanor, and, at sentencing, a federal judge lambasted the prosecution, calling delays in the case "unconscionable" and saying that the government put Drake through "four years of hell."
Despite the Justice Department's glaring defeat in the Drake case, the government is refusing to make amends with the whistleblowers it so egregiously mistreated. A front-page top-of-the-fold Baltimore Sun story reports that Drake and four other whistleblowers filed a lawsuit seeking to recoup property that the government seized in retaliatory raids back in 2007. Drake said the request is simple:
We'd like our stuff back.
The Sun reports:
The court motion filed by Drake and the four others is brief and cites a federal rule governing property seizures. It says the computers are being held in an FBI storage facility on Beltsville Drive in Calverton. "When asked why they have not returned the property," the court motion says, "the FBI responds that it has been waiting for months for the NSA to provide the FBI with its policy regarding this matter."
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Last week, GAP filed a FOIA request with the Justice Department for the secret Office of Legal Counsel (OLC) memo authorizing the assassination of radical Muslim cleric and American citizen Anwar al-Awlaki. There is no doubt that the release of the memo is in the public interest, as GAP's FOIA request articulates:
The U.S. government's killing of American citizen and alleged al-Qaeda operative Anwar al-Awlaki is a matter of public interest, which the President himself addressed. More specifically, the government's legal justification for killing al-Awlaki has sparked national and international debate. The legal reasoning behind controversial government actions – especially those that take the lives of American citizens – is a matter of public interest, and should be a matter of public discourse. (Footnotes omitted).
In the time since GAP filed its FOIA request, the New York Times reported extensively on the memo's content, and the public debate over the legality of killing al-Awlaki intensified. Yet, despite the fact that much of the memo's reasoning appeared on the Times front page on Sunday, the Obama administration has refused to make the memo public, and thus, it has avoided answering hard questions about the justification for the killing.
Even individuals and organizations who argued that the al-Awlaki assassination was justified – such as the Washington Post and former OLC attorney Jack Goldsmith – have called for President Obama to make the memo public. Public discourse is vital for our democracy. The Obama administration touts its commitment to transparency and openness, and such a commitment is most needed when the President makes controversial decisions, like the one to target and kill an American citizen.
Kathleen McClellan is National Security and Human Rights Counsel for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.
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At the time federal judge Alexander Williams Jr. of the U.S. District Court of Maryland sentenced former FBI translator Shamai Leibowitz for disclosing supposedly classified information to a blogger, even Judge Williams did not know the nature of the information Leibowitz disclosed. The New York Times reports that Judge Williams said at sentencing:
All I know is that it’s a serious case. . . I don’t know what was divulged other than some documents, and how it compromised things, I have no idea.
Nonetheless, the Justice Department deemed the information secret enough to warrant prosecuting Leibowitz under the Espionage Act. Leibowitz was a target of the Justice Department's war on whistleblowers, and he pleaded guilty to disclosing classified information to a blogger. In a recent interview with the New York Times, the blogger – identified only anonymously in court papers, but now revealed to be Richard Silverstein – claims Leibowitz:
. . . passed on secret transcripts of conversations caught on F.B.I. wiretaps of the Israeli Embassy in Washington. Those overheard by the eavesdroppers included American supporters of Israel and at least one member of Congress . . .
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This week provides both an example of the Justice Department's selective approaches to secrecy and an example of the Justice Department's alarming Fourth Amendment interpretations.
Selective Secrecy
Today, The Washington Post reported on an New York lawsuit between two government contractors that has revealed significant details about the Central Intelligence Agency's (CIA) supposedly super-secret rendition program.
In past lawsuits, the Justice Department - under both George W. Bush and Obama - has obstructed accountability by claiming that the rendition program must remain secret. The Justice Department asserted the state secrets privilege and sought to dismiss a lawsuit brought by victims of the CIA's rendition program against those accused of kidnapping and torturing them. The Justice Department argued that it would reveal state secrets to even answer the complaint or allow the victims to proceed with the lawsuit based upon the mostly public information the victims already have.
Yet, in a suit over money between two government contractors, the Justice Department hasn't intervened or even bothered to contact the attorneys despite that the contractor billing suit has revealed:
. . . more than 1,500 pages from the trial and appeals court files appear to include sensitive material, such as logs of air-to-ground phone calls made from the plane. These logs show multiple calls to CIA headquarters; to the cell- and home phones of a senior CIA official involved in the rendition program; and to a government contractor, Falls Church-based DynCorp, that worked for the CIA.
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