Although President Obama campaigned on calls to respect and protect whistleblowers, no sooner did he take office than the Justice Department adopted a diametrically opposite posture. Under Eric Holder, the department fully embraced a tactic his predecessors had tinkered with under George Bush: using the Espionage Act of 1917 to prosecute civil servants accused of leaking materials that it felt compromised national security. The approach had two advantages from the prosecutors’ perspective. First, it dramatically increased the heat on the whistleblowers, effectively casting them as spies who had betrayed their nation and potentially subjecting them to newly strenuous sanctions. Second, it theoretically bolstered the department’s ability to compel journalists to reveal information about, and testify against, their sources.
Bush-era prosecutors had tried the same approach, but things didn’t go well for them. Although their first such case landed before a conservative Republican judge, T.S. Ellis III, who was usually receptive to prosecutors’ concerns about national security matters, it fell apart largely due to limitations imposed by the court. Their next efforts followed from the all-out Justice Department campaign to identify and punish the persons who exposed to New York Times reporter Jim Risen details about a massive Bush-ordained surveillance program that involved snooping on the phone and Internet communications of tens of millions of Americans without a court warrant — a felony under the Foreign Intelligence Surveillance Act. This campaign does not appear to have turned up Risen’s sources, but it did net Jeffrey Sterling, a former CIA agent who disclosed a botched operation targeting Iran, and Thomas Drake, a former senior NSA official who blew the whistle on a $1-billion contract scam relating to another surveillance boondoggle.
The sitting judge in the ongoing Sterling case, Leonie Brinkema, has delivered a series of firm rebuffs to the department, while the Drake case collapsed on the eve of trial in June. Drake copped to the misdemeanor of “exceeding the authorized use of a government computer” — a “crime” of which no government employee is ever entirely innocent, but with which very few are ever charged. (The charge is the equivalent for the intelligence community to spitting on the sidewalk.) At the sentencing hearing on July 15, Judge Richard D. Bennett, a Republican and a Bush appointee, expressed anger at the Justice Department’s tactics. He praised Drake and described Justice’s management of the case as “unconscionable.” “It was not proper,” he said. “It doesn’t pass the smell test.” He compared the department’s actions to those of the British autocrats whose capricious abuse of power had precipitated the American Revolution.
Responding before the court to this judicial torrent of anger, William M. Welch II, the prosecutor who managed this and the other whistleblower cases, denied that he had made the key decisions on the file and noted that he had taken over only in 2009 (after, he didn’t add, he was forced to resign as head of Justice’s public-integrity section over charges of serious misconduct stemming from his management of the botched prosecution of former Alaska Senator Ted Stevens). Pressed by the court to name the miscreants “buried deep in the bowels of the Justice Department” who had initiated and driven the Drake case, Welch insisted he didn’t know who they were. He requested that Bennett impose a $50,000 fine on Drake, in part, he said, because Drake had won the $10,000 Ridenhour Prize for Truthtelling — a reward for the exact conduct for which Welch had unsuccessfully prosecuted him. The court dismissed the request as absurd, settling instead on a punishment of probation and community service.
Will the Justice Department recalibrate its conduct in view of the searing criticism it has received? Unlikely. The department’s “honest services theft” prosecutions, in which allegations of corruption by government officials were prosecuted on the oblique theory that they “robbed” the people of the “honest services” of the official, offer a point of comparison. There, too, judges at all levels, including the Supreme Court, hurled brickbats at Justice’s prosecutorial overreach and implausible interpretations of statutes. The most striking smackdown occurred in March 2010, when Justice Anthony Kennedy observed during oral argument that Justice’s theories effectively criminalized most of the nation’s civil service; the convictions Justice secured in that case were sent back for review. Welch and his boss, Assistant Attorney General Lanny Breuer, responded to this judicial fisking by refusing to acknowledge the criticism. Instead, Breuer went to Capitol Hill and asked Congress to respond to the Supreme Court by boosting the department’s powers — a request that has so far not been granted.
Expect Breuer to make a similar trip to Congress this fall, demanding that it expand Justice’s powers to prosecute whistleblowers, perhaps by enacting an American equivalent to Britain’s Official Secrets Act, which the Justice Department’s interpretation of the Espionage Act already resembles. If he does, the Obama Administration will reveal itself to be the most aggressive foe of whistleblowers in Washington’s history.