By Melvin A. Goodman
8:00 AM EDT, June 23, 2013
A major problem in the United States is not that there are too many whistle-blowers. Rather, there are too few.
Where were the whistle-blowers when the CIA was operating secret prisons; conducting torture and abuse; and kidnapping individuals off the streets in Europe and the Middle East and turning them over to foreign intelligence agencies that conducted torture and abuse? Where were the whistle-blowers when the National Security Agency violated the Fourth Amendment of the Constitution against "unreasonable searches and seizures" and conducted widespread, warrantless eavesdropping? Where were the whistle-blowers when the Pentagon was building secret facilities in order to conduct military strikes in countries where the United States was not at war?
President Barack Obama, a Harvard-trained lawyer and former professor of constitutional law, has made it particularly difficult for whistle-blowers and has displayed a stunning disregard for oversight of foreign policy decision-making. He has pursued more leak investigations than all previous presidents combined since the passage of the Espionage Act in 1919. Several press disclosures have been referred to the Justice Department for investigation, and in May the department subpoenaed two months of records for 20 telephone lines used by Associated Press reporters. This was the most aggressive federal seizure of media records since the Nixon administration. Attorney General Eric Holder even departed from First Amendment norms by approving an affidavit for a search warrant that named a Fox News reporter as a possible co-conspirator in violations of the Espionage Act because the reporter might have received classified information while doing his job.
President Obama has also inexplicably contributed to the need for whistle-blowers by weakening the traditional institution for oversight in the national security process: the office of the inspector general. Inspectors general are not popular within the federal government, but they are essential for keeping the government honest by unearthing illegal activities. The Obama administration from the outset focused on weakening the OIG at the Central Intelligence Agency by taking more than a year and a half to replace an outstanding IG, John Helgerson, whose staff had exposed the improprieties linked to "extraordinary renditions" as well as torture and abuse.
The most outrageous pursuit of a whistle-blower was conducted against Thomas Drake, who determined that NSA eavesdroppers were squandering hundreds of millions of dollars on failed programs while ignoring privacy issues. Mr. Drake took his issues to the IGs at the NSA and the Pentagon, and to the congressional intelligence committees. After failing in these efforts, Mr. Drake turned to a reporter from The Baltimore Sun. As a result, Mr. Drake faced 10 felony charges involving mishandling of classified information and obstruction of justice, which a judge wisely dismissed.
The case of Bradley Manning demonstrates the mindset of the Obama administration and the mainstream media. Although Mr. Manning has entered a plea of guilty to charges that would give him a 20-year prison sentence, the government is pursuing a charge of aiding the enemy, which would mean a life sentence. The government has ignored the Sixth Amendment's guarantee of a "speedy and public trial"; Mr. Manning's trial began June 3, nearly three years after his arrest. The military handling of Mr. Manning, particularly its imposition of unconscionable solitary confinement, has amounted to abuse and is in violation of the Eighth Amendment's prohibition of "cruel and unusual punishment." The scant coverage of the trial in the press is another example of the marginalization of a whistle-blower.
The absence of checks and balances in the national security system has virtually assured the abuse of power that has taken place. Congress has acquiesced in the questionable actions of both the Bush and Obama administrations since 2001, permitting foreign policy to be the sole preserve of the executive branch and not the shared responsibility of the president and the Congress. Congressional intelligence committees have become advocates for the CIA instead of rigorous watchdogs.
Since the Vietnam War, we have observed a system of judicial tolerance, with the Supreme Court only intervening on foreign policy matters to endorse the policies and powers of the president. This deferential attitude toward the White House has resulted in an absence of judicial scrutiny of illegalities, including warrantless eavesdropping and the destruction of the torture tapes at the CIA. Tellingly, the destroyer of the 92 videotapes of interrogations, Jose Rodriguez, who ignored a White House order not to destroy the tapes and should have faced at least obstruction of justice charges, has published a book sanctioned by the CIA that maligns the OIG for a "holier-than-thou attitude and the prosecutorial ways they routinely treated fellow CIA employees."
In addition to the failure of Congress and the courts to provide necessary oversight of national security, the mainstream media have been complacent about their watchdog role regarding secret agencies in a democratic arena. The media require the efforts of whistle-blowers to penetrate the secrecy of the policy and intelligence communities but typically ignore the reprisals taken against whistle-blowers. Often, they disdain the information provided by whistle-blowers that is critical of senior officials, preferring to protect their access to these officials.
A prime example is David Ignatius of The Washington Post, who falsely claimed that journalists "instinctively side with leakers" but was quick to ridicule Edward Snowden, who has exposed the NSA's spying on millions of Americans' phone records. Mr. Ignatius has been an apologist for the CIA and has relied on clandestine operatives to present a one-sided picture of the CIA's National Clandestine Service. His novel "Agents of Innocence" provided a laudatory account of CIA tradecraft, relying on sensitive leaks from a senior operations officer.
As a result of the imbalance in the process of foreign policy decision-making, we have come full circle from President Woodrow Wilson, who wanted to make the "world safe for democracy," to Presidents George W. Bush and Obama, who find the world too dangerous to honor constitutional democracy. The excesses of the Vietnam War, Watergate, Iran-Contra and the "Global War on Terror" have contributed to the creation of a national security state and a culture of secrecy. Whistle-blowers can help all of us decide whether the ends justify the means regarding these excesses.
Meanwhile, secrecy itself has fostered ignorance in the United States. The overuse of secrecy limits necessary debate on foreign policy and deprives citizens of information on which to make policy and political judgments. Only a counter-culture of openness and a respect for the balance of power can reverse the damage of the past decade. As long as Congress defers to the president in the conduct of foreign policy, the courts intervene to prevent any challenge to the power of the president in the making of foreign policy, and the media defer to authorized sources, we will need courageous whistle-blowers.
Melvin A. Goodman is a former CIA analyst and the author of "National Insecurity: The Cost of American Militarism." His email is firstname.lastname@example.org.
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