We've discussed a few times just how ridiculous it is that the US government still pretends that the State Department cables available via Wikileaks are somehow classified and secret. It's a head-in-sand approach, in which government employees have to pretend that information, which the rest of the world knows about, isn't actually known. This makes no sense. In the business world, if you sign a non-disclosure agreement, and content becomes public through other means, you're free to talk about it. The way the government does it is crazy... and opens up the possibility of abuse, such as in the following case.

State Department employee Peter van Buren has written a book that apparently criticizes the US's efforts in Iraq entitled: We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. Not surprisingly, the State Department isn't happy about the book. While it did review the manuscript before it was published, it can't stop the publication.

So, instead, it appears to being coming up with other ways to be vindictive. Such as investigating him for "disclosing classified information." And, no, it's not because of info in the book, which was pre-vetted by the government. It's because he wrote a blog post, where he dares to link to a Wikileaks cable, which is public to the whole world.

But, in the vindictive little minds of folks in the State Department, since such info is still technically "classified," they can go after van Buren for "disclosing classified info." And, making it even better, the investigators who interrogated him over this told him that if he wrote about the interrogation, he could also be charged with "interfering with a government investigation." It makes you wonder if the people involved in this recognize how petty and childish they appear in their actions. No one who can think straight thinks that van Buren linking to a very public document reveals classified information -- and on top of that, speaking publicly about State Department bullying is not, in any way, interfering with a government investigation.

Tragically, this is not an isolated incident. Despite the President's insistence that he wants to see more whistleblowing, every time we see whistleblowing in the federal government it seems like it's followed up by vindictive attacks by the federal government.

The US Department of Labor has told Bank of America to reinstate a guy they fired for blowing the whistle on fraud at Countrywide, and pay him $930,000 for his troubles. Apparently, BofA fired the guy soon after taking over Countrywide and discovered that this (unnamed) employee was trying to report on the fact that others, who had reported fraud at Countrywide, had been the victims of corporate retaliation.

Of course, Bank of America has plenty of cash on hand, in part because the US government (the one now ordering it to pay this worker less than a million dollars) has bailed the bank out to the tune of over $20 billion.

And while we're on the subject of the US government punishing a company for retaliating against whistleblowers, we should probably mention that the very same federal government has been going out of its way lately to try to imprison government whistleblowers. Apparently, it's okay when the federal government does it, but not when anyone else does it.

We've discussed the rather disappointing and immensely troubling efforts by the Obama administration, which promised more transparency and encouraged whistleblowing upon taking office, to attack whistleblowers any way it can. As noted, the administration has been using the Espionage Act -- which is supposed to be used against spies -- against whistleblowers, and has done so more often than all previous Presidents combined. Of course, the first big case against a whistleblower, Thomas Drake, completely collapsed.

Now it's come out that a former government official, J. William Leonard, who was in charge of the Information Security Oversight Office was so disturbed by the Thomas Drake case that he filed a formal complaint with both the Justice Department and the NSA and offered to testify on Drake's behalf that "there were no secrets at issue" and that he had never seen "a more deliberate and willful example of government officials improperly classifying a document."

Leonard held his role during the Bush administration (which was fairly notorious for secret keeping in its own right -- though not to this level). So some may argue that it's purely a political move. But these sorts of roles generally aren't particularly partisan, and even when there are political party differences, this sort of effort is pretty rare.

Part of President Obama's campaign promise was more transparency and more encouragement of whistleblowing. And yet, as we've noted, he's gone after more whistleblowers using the Espionage Act than all other former Presidents combined. However, Obama's legal attacks on whistleblowers so far don't have a very good track record. The attack on Thomas Drake -- threatening him with the potential of 35 years in jail for complaining about waste and abuse in the NSA -- fizzled. And now the latest attempt to put reporter James Risen in jail, unless he testified about his sources, has also failed.

A judge has quashed the subpoena by the government to force Risen to reveal his sources. The entire ruling by the court (issued last week, but made public this week) is worth reading as it goes through the full history and details of the case. But the key point is at the end, where the judge basically says that the government is pretty clearly just trying to harass a reporter for reporting on a secret government program. The government doesn't need Risen to make its case, but it's trying to compel him to reveal sources, knowing that this will scare some journalists from reporting but, more importantly, because it will scare off whistleblowers from going to reporters, if they could be compelled to reveal the sources. The judge isn't buying the government's argument:

Rather than explaining why the government's need for Risen's testimony outweighs the qualified reporter's privilege, the government devotes most of its energy to arguing that the reporter's privilege does not exist in criminal proceedings that are brought in good faith. Fourth Circuit precedent does not support that position. Moreover, the government has not summarized the extensive evidence that it already has collected through alternative means. Nor has the government established that Risen's testimony is necessary or critical to proving Sterling's guilt beyond a reasonable doubt. A criminal trial subpoena is not a free pass for the government to rifle through a reporter's notebook. The government must establish that there is a compelling interest for the journalist's testimony, and that there are no other means for obtaining the equivalent of that testimony.

It isn't a complete victory, in that Risen still can be made to testify, but on very limited subjects that don't break the reporter's confidentiality with his source.

Of course, rather than stop harassing Risen, the government has already announced it intends to appeal. Pretty sad for a President who once said that whistleblowers are "often the best source of information about waste, fraud, and abuse in government," to now support a campaign that is blatantly designed to scare off whistleblowing.

The fed's ridiculously vindictive legal attack on Thomas Drake for whistleblowing is now basically over. Late Friday, a judge sentenced Drake to 1-year probation and 240 hours of community service. As you may recall, the fed's case against Drake completely fell apart, just as the trial was to get underway, in part due to a lot of press coverage of just how ridiculous the lawsuit was. It was never, as the government implied, about leaking classified information. It was always a vindictive attack on Drake for pointing out massive amounts of waste at the NSA.

In the plea deal that Drake agreed to, prosecutors agreed not to ask for jail time, even though he could have received up to a year in jail (significantly lower than the 3 or so decades he was facing under the original charges). The prosecutors did ask for a $50,000 fine though. And they didn't get it. In fact, the judge scolded prosecutors for the whole case:

Judge Bennett said the government's decision to back away from its case on the eve of trial was "extraordinary," and added that he was particularly troubled by the 2 and ½ year time lapse from when federal agents first searched Mr. Drake's home to when he was charged. "It was not proper. It doesn't pass the smell test," the judge said.

Of course, it didn't pass the smell test because the whole thing smelled rotten. Thankfully, it ended on a somewhat positive note, though it's still ridiculous that Drake received any punishment at all.

Earlier this year, we noted Daniel Ellsberg's comments about how very few people realized that President Obama -- a man who ran on a platform of transparency and who has repeatedly said he supports whistleblowing efforts -- has been the most aggressive President ever in trying to punish whistleblowers. He pointed out that President Obama has brought more indictments for leaking info than all other presidents combined. And it's resulted in absolutely ridiculous prosecutions like the Thomas Drake affair, which finally collapsed after it became clear that the feds were merely being vindictive against Drake for his whistleblowing activities, rather than finding any actual case of espionage.

Now we have the sequel to the Drake situation, with much higher stakes in some ways. Conor Friedersdorf has a story at The Atlantic, about the administration's efforts to put reporter James Risen in jail. The full story is a worth a read, but it's pretty ridiculous. Risen is famous for exposing the Bush administrations warrantless wiretapping regime, as well as a few other clearly illegal programs. He so infuriated the Bush administration that Dick Cheney wanted to put him in jail... but realized there was no legitimate way to do so.

Along comes President Barack Obama. Part of Obama's campaign was actually built off of the information that Risen exposed:

You'd think that President Obama would take a different view. After all, he might not be in the White House today if the Bush Administration would've succeeded in keeping all its secrets: the torture, the detainee deaths, the abuses at Abu Ghraib, the spying on Americans, the faulty pre-war intelligence in Iraq, and all the rest. One would expect Obama of all people to see the value in Risen's reporting - the real ways in which he has helped to preserve civil liberties, American freedom, and accountability in government - and to weigh that against the national security implications of reporting in 2006 on a bungled CIA effort that happened way back in the year 2000.

You'd think. Instead, we get the opposite. The Obama administration has come down even harder on Risen than the Bush administration did, and is now threatening him with jail for not exposing his sources for some of his stories. This showdown may come soon, as a judge has indicated that she may require Risen to give up his sources. As Glenn Greenwald has noted, this whole thing seems to be a part of the "climate of fear" that was certainly present among the previous administration, but which has ratcheted up dramatically with the current administration. The key "fear" element is to make it known to both insiders who leak and reporters who publish those stories, that they could face jail time, even as the administration claims that it's encouraging whistleblowing.

Ellsberg speculated that President Obama's reason for being so much more aggressive on these issues was one of embarrassment . That is, the President recognizes that the federal government is doing all sorts of questionable stuff -- the type of stuff he actively campaigned against -- and is embarrassed by it. But since he (for whatever reason) is unable to put a stop to it, he's trying to do the next best thing: which is threaten and or punish anyone who might reveal what's being done. I'm not sure I buy that theory, but either way the situation is clearly troubling, and completely counter to the image that Obama has tried to portray of openness and transparency, and a willingness to respond directly to critics rather than punish them.

If you're concerned about freedom of speech and freedom of the press, this story should concern you. If you believe in the importance of whistleblowers to keep governments accountable when they do things like break the clear letter and intent of the law, this story should concern you. Tragically, however, it's not getting very much attention at all.

About a month ago, a few people sent in this horrifying story from Foreign Policy magazine, written by lawyer Jamison Firestone, concerning how one of the partners in his Moscow-based law firm helped uncover a massive crime by government officials -- who stole approximately $230 million and dumped it into real estate around the world -- and was then arrested, tortured, blamed for the theft and murdered in jail for attempting to alert government officials of the corruption and crime. It's a horrific story for anyone who believes in the rule of law. Barron's has a similar story that focuses more on crime itself, and additional evidence that implicates Russian officials -- even as Russian officials continued to blame the whistleblower who had actually alerted authorities to the suspicious behavior before the full theft had even taken place. That article also mentions that many of the same government officials were apparently involved in a similar heist of $107 million a couple years earlier.

While some may chalk this sort of thing up to the level of corruption found in Russia today -- which is known to be extensive -- it seems that this story also highlights the importance of the ability to blow the whistle on corruption through anonymous means that will make such findings public -- such as Wikileaks. Wikileaks certainly may have its own problems, and hopefully newer platforms will improve upon its lead, but the ability to expose such crimes without then being tortured, murdered and blamed for the crimes seems like an important thing.

Similarly, in our discussions on Bradley Manning -- who is accused of sending info to Wikileaks (though, according to many, the information Manning had access to was also available to over one million others, meaning that plenty of people may have passed it along to Wikileaks or others) -- we've had people insist that if he found wrongdoing, he should have just reported it to his superiors. The lesson from the story in Russia is that you have to actually trust the superiors to make that reasonable. Manning did not, perhaps for very good reasons. That's not to say that the level of corruption in the US government is on par with the level of corruption in Russia. I don't think anyone believes that. But, it does highlight why someone might reasonably feel that reporting illegal acts by their own government to their own government may not always be the best course of action if the goal is stopping such activities.

In our earlier post about the case against Thomas Drake, I sort of suspected he would eventually take the plea bargain deal, which is why I warned that people shouldn't be upset if he did. And he's now done exactly that, but the details seem reasonable. He rejected two separate plea bargain offers, even ones that likely would have meant no jailtime, if it meant agreeing to things he didn't think were accurate. In the end, the agreement he took involves pleading guilty to unauthorized use of a computer, which could carry a one-year sentence, but prosecutors have agreed that they won't oppose it if he seeks a non-jail sentence.

As I said in the earlier post, as much as it would have been nice to see him fight all the way to the end and totally clear his name, this seems perfectly reasonable. In this way, the key parts of the case -- involving a really awful attempt by the federal government to abuse the Espionage Act to punish a clear whistleblower -- gets totally dumped. And, when you're faced with the potential of 35-years in prison, at some point reality sets in and it's almost crazy not to take a plea bargain that gets you no jail time. Just the fact that he turned down the two earlier plea deals is pretty amazing. In the end, the only way to look at this is that Drake stood up to the government and won. The feds won't get the precedent they wanted for using the Espionage Act against a whistleblower, and plenty of people learned about the ridiculous vindictive prosecution by the federal government.

We've written a few times about the federal government's ridiculous and vindictive attempt to convict Thomas Drake of violating the Espionage Act and put him in jail for 35-years, all because he blew the whistle on some massively wasteful NSA spending.

If you haven't followed the case, Drake was part of a team that helped to develop a system that the NSA could use for its warantless wiretapping program. To prevent the system from being used to wiretap Americans (something the NSA is not supposed to do), the team also built in some protections to block out such taps on Americans. However, after 9/11, the NSA upper management decided to spend billions on a brand new system that would more broadly wiretap pretty much everyone without a warrant and without any such protections. That system was something of a failure and Drake and some others were upset that so much was wasted on such a bad system, when the NSA had a system that worked within the law. As part of being upset, he provided some info to a reporter at the Baltimore Sun concerning the financial failure of the system (but not anything classified about the warrantless wiretapping program itself).

As investigators were seeking to find out a source for a different report (to the NY Times), which did reveal the warrantless wiretapping, they investigated Drake and claimed to have found four "classified" documents that he had mishandled. Even that's misleading. Drake (and a few others) had (properly) filed a complaint with the Inspector General about NSA waste, and were told to keep copies of the report themselves, which included those files. One of the "classified" documents was even stamped "unclassified", but the government argues Drake should have known it was really classified. Other documents were declassified anyway months later. Drake's case is a clear example of a vindictive administration trying to hit back at whistleblowers by abusing the Espionage Act.

And now that case may be falling apart.

Earlier in the week, it was reported that, to avoid revealing secrets at the trial scheduled to begin next week, the government would use a code based on boxes and arrows to try to obfuscate any classified info, leading to complaints from Drake's team that the government seemed to want to hide important information that would help clear Drake. However, the government instead decided not to use that evidence at all, and people are beginning to realize that the entire case is crumbling. In fact, the feds are apparently now desperate to avoid actually going to trial and are offering up all sorts of plea bargains, including the latest: rather than face 10 felonies, Drake could agree to a misdemeanor and get no time in jail.

For someone facing potentially 35 years in jail, I can see how tempting that can be. But Drake has declared that he won't "plea bargain with the truth." It would be nice if he continues to stick up for what he believes is right, but I don't think anyone can rightly complain if he ends up accepting such a plea bargain. Unless you've been on the wrong end of a criminal lawsuit that could put you in jail for 35-years, it's difficult to complain about a guy taking a plea bargain that keeps him out of jail. Still, that doesn't mean we can't hope that he continues to fight this clear abuse of federal power against whistleblowers.

We already covered the excellent New Yorker piece by Jane Meyer about the government's ridiculous prosecution of whistleblower Thomas Drake under the Espionage Act, and it appears that story is getting much more mainstream attention as well. The Economist picked up the story and over the weekend 60 Minutes did a big piece on it that basically reiterates everything in Mayer's piece. Drake blew the whistle on a ridiculous bit of mismanagement by the NSA, in which they paid billions to defense contractors, rather than using a better, cheaper (and more legal) solution built in-house. His "crime" wasn't revealing any classified info -- because he did not. It was that in keeping the records for the (official and legal) complaint he filed with the Inspector General's office, he kept certain records in his home that were designated as classified. The Economist's summary covers the ridiculousness of charging him over these documents:

Let's go through this trove of secrets. 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.

And that's it. At worst, he mishandled some documents, but even that's in question. It seems abundantly clear that the prosecution of Drake is because he annoyed his bosses at the NSA and embarrassed them by getting press coverage for the fact that they became enamored with the spin from some defense contractors, leading them to waste taxpayer money. And for that he gets charged with espionage, even as President Obama continues to insist that he values whistleblowers within the government. The Thomas Drake affair is shaping up to be yet another example of an executive branch out of control when it comes to abusing the power of its position. This is a problem that all Americans should be worried about, as both major parties seem more than happy to abuse power while in office.