A history on whistleblowing and leaks, different parameters of evaluation for disclosure of classified material

 

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1942 Morton Seligman decoded Navy messages of the Japanese order of battle to a reporter. Leak could have exposed the fact that the US had cracked the Japanese naval codes. Seligman was not prosecuted left ashore and denied promotion. The Chicago Tribune was accused of treason, proceedings to charge the paper under The Espionnage Act of 1917 . The grand jury refused to hand down indictments, Navy officials didn’t appear at the proceedings for fear of revealing more information in their testimony.

The ChicagoTribune, june 7, 1942

WAR SITUATION CENSORSHIP INTERNATIONAL ESPIONNAGE

 

pyle
Christopher Pyle, law professor, former intelligence analyst

1970 Christopher Pyle disclosed existence of US Army domestic intelligence program aimed at antiwar and civil rights activists. Investigation by the Senate Judiciary Committee. Pyle was hired to work on the Committee. He was not prosecuted.

ESPIONNAGE OF US CITIZENS

 

 

perryfellwock
Perry Fellwock, Air Force veteran, former NSA analyst

1970 Perry Fellwock first major NSA leaker. Leaks related to NSA conducting extensive signals intelligence on the Soviet Union, that NSA had information sharing agreements with other nations, that NSA systematically recorded and searched phone calls into or out of the USA. Fellwock was never prosecuted.

‘Electronic Espionage: A Memoir’,Ramparts magazine, ,Vol. 11, No 2, August 1972, pp. 35-50

New York Times, ‘Ability to Break Soviet Codes reported; US Reportedly Able to Break All Soviet Codes’

ESPIONAGE OF US CITIZEN

 

ellsberg
Daniel Ellsberg, former US military analyst (Pentagon, State Department, RAND), Anthony Russo, former US military intelligence analyst

1971 Daniel Ellsberg and Anthony Russo disclosed decisions about war-making. Diclosure to anti-war congressman and reporters of the New York Times and the Washington Post of the Pentagon Papers, formally, history of U.S. Decision-making in Vietnam, 1945-1968. The government sought an injunction against publication in the New York Times. The Supreme Court confirmed the first instance court’s decision to deny the injunction against the New York Times. Ellsberg was prosecuted but the case was dismissed for prosecutorial misconduct. Russo’s indictment was dismissed in the same process.

The New York Times, June 13, 1971

New York Times vs. United States, 403 U.S. 713, 30 June 1971

Improper government conduct in the administration of justice, FOOTNOTE 134

Illegality of abroad interventionnism in war situations

samuel-loring-morison
Samuel Loring Morison, former naval intelligence analyst

1984 Samuel Loring Morison disclosed satellite images of a Soviet aircraft carrier under construction to the magazine Jane’s Defence Weekly. Morison was convicted and sentenced to two years in prison under the Espionage Act. Later pardoned by Bill Clinton in 2001, largely on Senator Daniel Patrick Moynihan concern that The Espionage Act had been applied erratically and inconsistently.

In 2014, Morison was convicted of stealing government property from Navy Archives in Washington DC. The’ documents named Office Files of Rear Admiral Morison Papers’ included a 15-volume history of World War II commissioned by President Franklin D. Roosevelt. The records were indeed all related to his grandfather, a prominent historian whose biographies on Christopher Columbus and John Paul Jones were awarded the Pulitzer Price. Morison pleaded guilty to the offence and was sentenced to two years of probation.

Morison vs. U.S., 486 U.S. 1306 (1988)

Classified historic material, patrimony heritage and intelligence classified material

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JesselynRadack, attorney, former Justice Department ethics attorney

2002 Jesselyn Radack disclosed information to the press about the prosecution of John Walker Lindh (the ‘American Taliban’), the American citizen who had been captured fighting alongside Talibans. The information she disclosed suggested that the prosecution was tainted by violation of Lindhs right to counsel and that the prosecution removed documents that would have established those violations at Lindhs trial. After sending the documents to her superiors, she resigned from Justice Department. She tried to submit the documents directly to court, but a legal nuance prevented her from entering evidence now that she was outside of the Justice Department. She contacted a Newsweek reporter where the story made headlines. A few months later, the terrorism charges against Lindh were dropped, leaving two technical charges with a maximum sentence 20 years in prison.

Newsweek

DOCUMENTS NOT CLASSIFIED COVERED BY ATTORNEY-CLIENT PRIVILEGE.

*exposed improper government conduct in the administration of justice.* WAR PROSECUTIONS

franklin-070209-1425723647
Lawrence A. Franklin, former Pentagon analyst

2003 Lawrence Franklin conveyed classified documents about US policy towards Iran to employees of AIPAC, American Israel Public Affairs Committee (two pro-Israel lobbyists Stephen J. Rosen and Keith Weissmand, and an Israeli diplomat, Naor Gilon). Franklin who pleaded guilty was sentenced in 2006 to 12 years which was later reduced to ten months of house arrest. The two lobbyists with whom he shared classified information were accused of providing defence secrets to the chief political officer at the Israeli embassy in Washington, Naor Gilon. The charges against the lobbyists, all offences against the Espionage Act, were dropped by the US Department of Justice.

U.S. vs. Lawrence Franklin, Steven Rosen, and Keith Weissman

INTERNATIONAL DIPLOMACY AND (economic, geopolitical?) POLICIES, CHECK DOCS

 

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Thomas Tamm, attorney, former U.S. Department of Justice attorney

 2004 Thomas Tamm and Russell Tice disclosed the existence of a wiretapping program which President George W. Bush began in 2001, a program found to be illegal and in violation of basic constitutional rights prohibition on warantless searches. The Bush administration admitted to the wiretapping on a small scale but denied Tice’s claims that the tactic was likely being used to gather data on millions of Americans.Thomas Tamm was the former Justice Department lawyer who contacted the New York Times about the program. Russell Tice (who had been fired from the NSA on 2005 after calling on Congress to provide greater protection for whistleblowers) later admitted that he was also one of the sources that were used in the New York Times reporting. Though Mann extensively explained the illegality of the program and Tice exposed that higher officials in the U.S government, as well as lawyers, banking firms, NGOs and corporations were targeted and their communications wiretapped illegally, no documents containing classified information were ever disclosed by them. The New York Times was awarded the Pulitzer Prize in 2006 for its story. In 2007, the FBI raided Tamm’s house and unsuccessfully offered him to plead guilty. President Obama formally criticized the program and the Justice Department finally decided not to prosecute him. Russ Tice wasn’t prosecuted either. Ethics charges were filed against Thomas Tamm in 2016 by the D.C. Office of Disciplinary Counsel for not referring first to higher authority within the Department of Justice and ‘exposing the secrets or confidences’  of his client, the Department of Justice.

In March 2016, Thomas Tamm settled the District of Columbia attorney disciplinary matter by agreeing to a public censure, a reprimand, for revealing the confidences or secrets of his client, the Justice Department, to a New York Times reporter. In effect, this amounts to a public declaration that Tamm’s conduct was improper without affecting his right to practice law in the District of Columbia.

Improper government conduct in the administration of justice

ESPIONNAGE OF US CITIZENS (STELLAR WIND)

James Risen, Eric Lichtblau, ‘Bush lets U.S. spy on callers without court’, New York Times, december 16 2005

Lawsuits by people who were wiretapped

ACLU vs Clapper, 7 May 2015

Amnesty vs. Clapper

Jewel vs National Security Agency

Decision of panel appointed by President Obama to review the government’s surveillance activities

 

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William Binney, Cryptanalyst-mathematician, Former Army Security Agency staff, Former Technical Director World Geopolitical and Military Analysis Reporting Group, NSA. Kirk Wiebe, Former Senior Analyst, NSA

2004 William Binney, Kirk Wiebe, Ed Loomis and Diane Roarke disclosed internally objections to the communications surveillance system that NSA bought, Trailblazer. Binney had first shared his concerns to the Intelligence Committee as well as to the judicial branch. In September 2002, Binney along with Wiebe, Roarke and Loomis asked the U.S. Defence Department Inspector General (DoD IG) to investigate the NSA regarding the Trailblazer system, invoking corruption, fraud, waste and abuse. This system that was substantially more expensive and less respectful of civil rights than an in-house system developed by Binney was ultimately shut down in 2005. Binney was indeed part of an elite NSA team which designed and built an intelligence-gathering system to target and collect data on terrorism threats. After more than 30 years working for the NSA, Binney resigned in October 31st, 2001, due to the conflicts he had with the Agency regarding the increasing surveillance and mass collection of data programs.

In 2005, the Department of Defence (DoD IG) issued a report following the complaints of the employees. In 2009, after complaints were filed with the Department of Justice Inspector General (DOJ), a report by joint five Inspectors Generals  (NSA, CIA, ODNI, DOJ, DoD) was also issued. Nothing was disclosed to the press but the employees were bullied and suffered from abuse investigation and punishment by process.

Binney was investigated as part of an inquiry into the 2005 warrantless wiretapping program scandal that had leaked in a New York Times article. He was indeed known to be highly critical of the NSA surveillance program and activities. In July 26, 2007, Binney’s house was raided and a dozen FBI agents armed entered his house, one of whom pointed a gun at Binney who was taking a shower. The FBI revoked his security clearance forcing him to close a business he ran with former colleagues. The homes of Wiebe, Loomis and Roarke were also raided the same morning. In 2009, Kirk Wiebe and William Binney received letters of immunity.

Office of the Inspector General of the Department of Defence, Requirements for the TRAILBLAZERS and THINTHREAD Systems, December 15th, 2004, 146 p.

Joint report of the Office of Inspectors General, Department of Defence (DoD), Department of Justice (DOJ), Central Intelligence Agency (CIA), National Security Agency (NSA), Office of the Director of National Intelligence (ODNI), Unclassified report on the President’s Surveillance Program, 10 July 2009, Report No 2009-0013-AS, 38 p.

James Risen, Eric Lichtblau, ‘Bush lets U.S. spy on callers without court’, New York Times, december 16 2005

ESPIONAGE OF US CITIZENS (TRAILBLAZER, LATER STELLARWIND)

INTERNAL WHISTLEBLOWING

ABUSE OF PROSECUTION

 

01 edloomunited-states-of-secrets-i-15

 

thomasdrake
Thomas Drake, military and CIA veteran, Former Senior Official, NSA

2004-2005 Thomas Drake is a NSA employee, who, in late 2001, raised concerns within the NSA, with the Pentagon Inspector General (DOD IG) -anonymously but with confidentiality assured, the Senate and Congress about the NSA data collection program. The program ThinThread which was meant to gather communication data without compromising U.S. citizen’s privacy rights, he believed, had been adapted to spy on US citizens. Drake also discussed fraud, waste and mismanagement with a Baltimore Sun Reporter. The FBI raided Drake’s home in 2007. He resigned from NSA in 2008. Indicted under Espionnage Act in 2010 for retaining classified records, Drake was prosecuted, pleaded guilty in 2011 to a single misdemeanor count of ‘exceeding authorized use of a computer’, though there were no proof of disclosure of classified information. Sentenced to a year of probation and community services, Drake was stripped of his security clearance.

Lawsuit by people who were wiretapped

Jewel vs National Security Agency

ABUSE OF PROSECUTION

kleinp2006 Mark Klein AT&T employee disclosed that AT&T had voluntarily complied with NSA requests to monitor Internet communications. unclassified technical documents whose national security meaning became apparent only on the context of their use in connection with the installation of a secret room within the AT&T facility. In that room was installed a fiber optic splitter. The ‘splitter cabinet’ splits the light signal in two, making two identical copies of the data carried on the light signal. One copy went directly to NSA and the other to its destination.

In July, 2008, after a long and contentious battle in Congress, the government and AT&T were awarded the so-called retroactive immunity from liability under the controversial FISA Amendments Act (FAA).

Program UPSTREAM

p2006 Jefferey Sterling leaked details of a successfull operation of the CIA to feed defective information to Iran¨s nuclear weapon program. Debate related to involvement of the journalist in the prosecutions not only the leakers.

 

091221_shamai_liebowitz_ap_2182009 Shamai Leibowitz, FBI translator, leaked transcripts of intercepted calls to a blogger, claims that disclosures were intended to expose FBI illegal acts, pled guilty to a lesser offence was sentenced to 20 months imprisonment, justice had not full access to documents, DOCUMENTS RELATED TO TRAFIC D,INFLUENCE STRATEGIC GEOPOLITICAL DECISIONS, *the authorconsiders case similar to Snowden for claims of illegality

stephkim2009 Stephen Kim leaked conversation suggesting that North Korea was about to test the nuclear bomb, pled guilty, 13 months imprisonment, REPORTER ALSO PROSECUTED IN THIS CASE

 

 

kiriakou

 

2007\2012 John Kiriakou UNINTENTIONAL DISCLOSURE OF IDENTITY OF CIA AGENT (Intelligence Identity Protection Act), 13 months imprisonment, had previously leaked details about CIA torture program for which he was not prosecuted. * exposed improper government conduct in the administration of justice

chelsea-manning2012 Chelsea Manning leaked several thousand reports (war logs) from units in Iran and Afghanistan and 250 000 State Department embassy cables to Wikileaks. Several potential violations of human rights or laws of war were disclosed. The embassy cables however disclosed potential violations by the governments of other countries but not by State Department or the US government itself

Edward Snowden Amongst the documents that Snowden leaked, the Verizon warrant issued by the FISA court. On June 5 2013, The Guardian published a classified document leaked by former intelligence contractor Edward Snowden. The document, a court order issued on 25 April 2013 showed that the NSA was collecting the telephone records of millions of US customers of Verizon, one of America’s largest telecom provider.

Glenn Greenwald, ‘NSA collecting phone records of millions of Verizon customers daily’, The Guardian, 5 June 2013

‘’Considering the sentences in the cases of Morrison, Leibowitz, KIriakou and Kim, (much less Franklin) Manning thirty-five years sentence was overwelmingly excessive by comparison to any prior leak to the media’’, footnote 183, p. 41

Yochai BENKLER, A Public Accountability Defense for National Security Leakers and Whistleblowers, 8(2) Harvard Review Law & Policy, July 2014, pp. 32-33