12-3176, 12-3644

United States Court of Appeals For the Second Circuit
--------- -------CHRISTOPHER HEDGES, Daniel Ellsberg, Jennifer Bolen, Noam Chomsky, Alexa O’Brien, US Day of Rage, Kai Wargalla, Hon. Birgitta Jonsdottir M.P., Plaintiffs-Appellees, v. BARACK OBAMA, individually and as representative of the United States of America, Leon Panetta, individually and in his capacity as the executive and representative of the Department of Defense, Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF OF AMICUS CURIAE GOVERNMENT ACCOUNTABILITY PROJECT IN SUPPORT OF PLAINTIFFS-APPELLEES AND AFFIRMANCE

REEM SALAHI HADSELL STORMER RICHARDSON & RENICK, LLP 128 N. Fair Oaks Avenue Pasadena, CA 91103 (626) 585-9600 reem@hadsellstormer.com Counsel for Amicus Curiae

DICK BAILEY SERVICE

(212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024

1-800-531-2028

CORPORATE DISCLOSURE Pursuant to Fed. R. App. P. 26.1, amicus curiae Government Accountability Project submits the following identification of corporate parents, subsidiaries and affiliates: NONE.

TABLE OF CONTENTS AMICUS CURIAE’S STATEMENT OF INTEREST ...............................................1 INTRODUCTION AND SUMMARY OF ARGUMENT ........................................2 ARGUMENT .............................................................................................................4 I. Section 1021(b)(2)’s Expansive and Vague Terms Provide No Notice of Prohibited Conduct And Greatly Chill Whistleblowers’ Activity ..................4 A. Whistleblowers Lack Meaningful Protections and §1021(b)(2)’s Vague Terms and Perilous Penalties Further Endanger Whistleblowers....................................................................................11

II.

Whistleblowers Have Historically Faced Retaliatory Criminal Investigations and Prosecutions For “Blowing the Whistle”................................................14 A. B. The Example of Thomas Drake ..........................................................16 The Example of Jesselyn Radack........................................................21

III.

Prosecutorial Overreach Against Whistleblowers Is A Harbinger of What Whistleblowers Will Likely Face Under the NDAA ....................................23

CONCLUSION........................................................................................................25

i

TABLE OF AUTHORITIES Al-Odah v. U.S. 611 F.3d 8 (D.C. Cir. 2010)......................................................................... 3-4 Almerfedi v. Obama 654 F.3d 1 (D.C. Cir. 2011).............................................................................3 Boyd v. United States 116 U.S. 616 (1886).......................................................................................17 Connally v. General Construction Co. 269 U.S. 385 (1926).....................................................................................7, 9 Doe v. Rumsfeld, 800 F. Supp. 2d 94, 100 (D.D.C. 2011) (Rev’d Doe v. Rumsfeld, 683 F.3d 390 (D.C. Cir. 2012) ..............................23 FCC v. Fox TV Stations, Inc. 132 S. Ct. 2307 (2012)..................................................................... 7-8, 10, 24 Grayned v. City of Rockford 408 U.S. 104 (1972).........................................................................................9 Hamdi v. Rumsfeld 542 U.S. 507 (2004).........................................................................................4 Lanzetta v. New Jersey 306 U.S. 451 (1939).....................................................................................7, 8 NAACP v. Button 371 U.S. 415 (1963).......................................................................................10 N.Y. Times v. United States 403 U.S. 713 (1971) ................................................................................ 5, 6-7 Papachristou v. City of Jacksonville 405 U.S. 156 (1972).........................................................................................7

ii

Silverman v. United States, 365 U.S. 505, 511-12 (1961) .........................................................................17 Steagald v. United States 451 U.S. 204 (1981).......................................................................................17 United States v. Karo, 468 U.S. 705, 714 (1984) ..............................................................................17 United States v. Robel 389 U.S. 258 (1967) .....................................................................................10 United States v. Stevens 130 S.Ct. 1577 (2010)....................................................................................10 United States v. Thomas Drake No. RDB-10-181 (D. MD Jul. 15, 2011).......................................................15 United States v. Thomas Drake No. RDB-10-181 (D. MD Mar. 31, 2011).....................................................20 United States v. Williams 553 U.S. 285 (2008).........................................................................................9 Virginia v. Moore 128 S. Ct. 1598 (2008)...................................................................................17 FEDERAL STATUTES Prohibited Personnel Practices 5 U.S.C. § 2302(a)(2)(C)(ii) ..........................................................................11 5 U.S.C. § 2302(b)(8) ....................................................................................11 Inspector General for Agency 5 U.S.C.A. § 8H (f)........................................................................................12 5 U.S.C.A. § 8H (b) .......................................................................................12 5 U.S.C.A. § 8H (h)(1) ..................................................................................12 50 U.S.C.A. § 403q (d)(5) .............................................................................12 50 U.S.C.A. § 403q (d)(5)(F) ........................................................................12 50 U.S.C.A. § 403q (d)(5)(G)(i)....................................................................12
iii

Espionage and Censorship World War I-Era Espionage Act 18 U.S.C. §792..........................................14 NDAA §1021 .............................................................................................................8 NDAA §1021(b)(2)...........................................................................................passim OTHER AUTHORITIES Mary-Rose Papandrea, Lapdogs, Watchdogs, and Scapegoats: The Press and National Security Information, 83 Ind. L.J. 233, 254 (2008) ..........................5 Richard Moberly, Whistleblowers and the Obama Presidency: The National Security Dilemma, Emp. Rts. & Emp. Pol’y J., Vol. 16 (2012)....................15 Pub. Law No. 112-199 (2012) .................................................................................11

iv

AMICUS CURIAE’S STATEMENT OF INTEREST1 Amicus curiae, the Government Accountability Project (GAP), is an independent, nonpartisan, nonprofit organization that promotes corporate and government accountability by protecting whistleblowers and advancing occupational free speech. GAP advocates for the effective implementation of whistleblower protections throughout industry, international institutions and the federal government, focusing on issues involving national security, food safety and public health. GAP defends whistleblowers and offers legal assistance in instances where disclosures affect the public interest. For over 33 years, GAP has represented major whistleblowers who have exposed gross injustices under every presidential administration since the group’s inception. GAP is at the forefront of advocating for whistleblower rights and protections, having seen retaliation against such individuals ranging from professional demotions to criminal prosecutions. GAP’s specific interest in the outcome of this case is §1021(b)(2)’s lack of definitional parameters and its consequent chilling effect on whistleblowers in the intelligence community. GAP fears that §1021(b)(2)’s vague terms of “substantial support,” “direct support” and “associated forces” will become the basis for the military

1

All parties consent to the filing of this brief. No counsel for any party authored any part of this brief, and no person other than amicus and its counsel contributed money for the preparation and submission of this brief. FRAP 29(c)(5). 1

detention of whistleblowers. Amicus define a “whistleblower” as an employee who discloses information that s/he reasonably believes is evidence of illegality, gross waste or fraud, mismanagement, abuse of power, general wrongdoing, or a substantial and specific danger to public health and safety. Typically, whistleblowers speak out to parties that can influence and rectify the situation. These parties include the media, organizational managers, hotlines or Congressional members/staff. INTRODUCTION AND SUMMARY OF ARGUMENT Following the September 11, 2001 attacks, the U.S. government waged war against those it professedly deemed to be responsible. What ensued, however, was a regime of legally questionable policies and practices, including the CIA’s rendition program, warrantless wiretapping of Americans and the use of “enhanced interrogation techniques” – a widely acknowledged euphemism for torture – on American and foreign nationals. Recently, in the name of “national security” Congress ratified and the Executive signed into law an unconstitutional statute, §1021(b)(2) of the National Defense Authorization Act for Fiscal Year 2012 (“NDAA”). Section 1021(b)(2) greatly expands the Executive’s military detention authority to include U.S. citizens “who [were] a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed
2

a belligerent act or has directly supported such hostilities in aid of such enemy forces.” In no part of §1021 does the government define the expansive and vague terms: “substantially supported,” “directly supported” or “associated forces.” Without definitional parameters, whistleblowers face unprecedented risks when disclosing even unclassified documents. Indeed, whistleblowers’ historical treatment serves as a harbinger of what whistleblowers may face should this Court uphold §1021(b)(2)’s constitutionality: capricious and aggressive prosecutions with some of the gravest charges that can be brought against American citizens, including the Espionage Act. Whistleblowers already lack meaningful protections. Those who seek to expose government fraud, waste or illegality have limited avenues to do so and face serious retaliation, up to criminal investigations and even prosecutions. In public forums, including at hearings and in the media, the Justice Department has defamed these whistleblowers as “terrorist sympathizers” and “enemies of the state.” How such labels differ from §1021(b)(2)’s “substantial support” may be the difference between a whistleblowers’ right to a civilian trial subject to the legal standard of “guilty beyond a reasonable doubt” and military detention subject to the exceedingly lower standard of “preponderance of the evidence.” See Almerfedi v. Obama, 654 F.3d 1, 5 (D.C. Cir. 2011) (finding that the preponderance of the evidence standard applies in evaluating habeas petitions); see also Al-Odah v. U.S.,
3

611 F.3d 8, 13-14 (D.C. Cir. 2010). Like the delicate balance that must be drawn between maintaining government secrecy and disclosing illegal and unethical conduct, the government too must balance its responsibility of protecting this nation and safeguarding its citizens’ constitutional guarantees. “It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles which we fight abroad.” Hamdi v. Rumsfeld, 542 U.S. 507, 532 (2004). Accordingly amicus urge this Court to affirm the District Court’s permanent injunction which held, in part, that §1021(b)(2) provides insufficient notice and violates the Due Process Clause of the Fifth Amendment. ARGUMENT I. Section 1021(b)(2)’s Expansive and Vague Terms Provide No Notice of Prohibited Conduct And Greatly Chill Whistleblowers’ Activity Following the September 11, 2001 attacks and the corresponding “War on Terror,” whistleblowers played a pivotal role in exposing arguably illegal and unethical government actions, including the National Security Agency’s warrantless wiretapping program,2 the CIA’s rendition program and use of

Michel Isikoff, The Fed Who Blew the Whistle, Newsweek Magazine, Dec. 12, 2008, http://www.thedailybeast.com/newsweek/2008/12/12/the-fed-who-blew-the-whistle.html. 4

2

waterboarding3 and the prisoner abuse at Abu Ghraib.4 By exposing illegal conduct, waste, fraud, abuse and malfeasance, whistleblowers have historically advanced democratic functions through transparency and governmental accountability.5 As Supreme Court Justice Stewart stated in his concurrence in N.Y. Times v. United States: “I should suppose, in short, that the hallmark of a truly effective internal security system would be the maximum possible disclosure, recognizing that secrecy can best be preserved only when credibility is truly maintained.” 403 U.S. 713, 729 (1971) (White, J., concurring). The importance of whistleblowers has been acknowledged by the highest officials in this country, including President Obama who stated while running for office: “Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled.

Peter Van Buren, The Patriotism of the Whistleblower, Mother Jones, Sept. 11, 2012, http://www.motherjones.com/politics/2012/09/patriotism-whistleblower. 4 Bill Weir, Abu Ghraib Whistle-Blower Speaks Out, ABC News, Aug. 16, 2006, http://abcnews.go.com/GMA/story?id=2318457&page=1. 5 Gregory Heisler, Persons of the Year: The Whistle-Blowers, Time, Dec. 22, 2002, http://www.time.com/time/specials/packages/0,28757,2022164,00.html (highlighting persons of the year including three whistleblowers Sherron Watkins of Enron, Coleen Rowley of the FBI and Cynthia Cooper of WorldCom); Amanda Ripley and Maggie Sieger, Coleen Rowley: The Special Agent, Time Magazine, Dec. 30, 2002, http://www.time.com/time/magazine/article/0,9171,1003988-1,00.html; Mary-Rose Papandrea, Lapdogs, Watchdogs, and Scapegoats: The Press and National Security Information, 83 Ind. L.J. 233, 254 (2008). 5

3

We need to empower federal employees as watchdogs of wrongdoing and partners in performance.”6 Unfortunately, whistleblowers continue to lack both freedoms and protections. When disclosing government fraud or malfeasance, whistleblowers are often retaliated against and contrarily become the target, rather than the source, of an investigation. Without proper protections, whistleblowers are chilled from speaking out and serving in their uniquely suited roles as watchdogs. The consequence is a weakened democracy that operates under a veil of secrecy. At present, many whistleblowers have few protections to safeguard them from retaliation. Indeed, whistleblowers in the intelligence community7 lack any meaningful protections and fully risk compromising their professional and personal wellbeing when blowing the whistle. Where the Supreme Court upheld the First Amendment rights of recipients of classified information in its seminal case N.Y.

See Agenda · Ethics, Change.gov, http://change.gov/agenda/ethics_agenda/ (last visited Dec. 9, 2012). 7 The National Security Act of 1947, as amended, defines the “intelligence community” to include: the Office of the Director of National Intelligence, the Central Intelligence Agency, the National Security Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Reconnaissance Office, offices within the Department of Defense for the collection of specialized national intelligence through reconnaissance programs, the intelligence elements of the Army, Navy, Air Force, Marine Corps, Coast Guard, Federal Bureau of Intelligence, Drug Enforcement Administration, and Department of Energy, the Bureau of Intelligence and Research of the Department of State, the Office of Intelligence and Analysis of the Department of the Treasury, elements of the Department of Homeland Security who analyze intelligence information, and any other element of any department or agency designated by the President or jointly by the Department of the National Intelligence and the head of the department or agency concerned, as an element of the intelligence community. 50 U.S.C. § 401a(4)(2006). 6

6

Times v. United States, it left unanswered the rights of whistleblowers in disclosing illegal government conduct through classified or unclassified means. 403 U.S. 713 (1971). Due to its vagueness, §1021(b)(2) of the NDAA further threatens whistleblowers who may be deemed “substantially” or “directly” supporting AlQaeda, the Taliban or “associated forces” when they blow the whistle. As exemplified below, whistleblowers have been labeled and prosecuted as “enemies of the state,” even when disclosing unclassified documents. They have been subjected to draconian laws and placed on terrorist lists, including the Terrorist Screening Center’s “No Fly” list. Under the NDAA, whistleblowers have no notice of what conduct places them within the ambit of §1021(b)(2) with the potential consequence of indefinite military detention. “Living under a rule of law entails various suppositions, one of which is that [all persons] are entitled to be informed as to what the State commands or forbids.” Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972) (quoting Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). See also, Connally v. General Constr. Co., 269 U.S. 385, 391 (1926) (“[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law”); FCC v. Fox TV Stations, Inc., 132 S. Ct. 2307,
7

2317 (2012) (“A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.”); Lanzetta, 306 U.S. at 453 (“No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.” 8). In the proceedings before the District Court, the government failed to define the words “substantially supported” and “directly supported” while offering that “associated forces” be defined according to the nebulous laws of war. See Opinon and Order (hereinafter, “Order”) at 99-100. On appeal, the government provides little guidance on the definitions of said terms and merely persists in putting forth “an undefined, moving target, subject to change and subjective judgment.” Id. at 106. Indeed Amici Senators John McCain, Lindsey Graham and Kelly Ayotte, members of the Senate Committee on Armed Services who helped author and enact NDAA §1021 concede that §1021(b)(2) is subject to the discretionary whims of the Executive: “The government has stated, in the clearest possible fashion, that the activities alleged by plaintiffs are not within the ambit of §1021 . . . detention authority because the plaintiffs lack the requisite nexus with al-Qaeda. . . . Because detention is a discretionary power of the executive, this determination is conclusive.” See Brief of Amici Curiae Senators John McCain, Lindsey Graham,
8

Due to the NDAA’s detention capabilities, it parallels penal statutes. As the District Court found: “To the extent that the §1021(b)(2) purports to confer authority to detain American citizens for activities occurring purely on American soil, it necessarily becomes akin to a criminal statute, and therefore susceptible to a vagueness analysis.” Order at 101. 8

and Kelly Ayotte in Support of Appellants (hereinafter, “McCain Brf.”) at 35. Merely stating that the government has designated certain individuals’ actions outside the ambit of §1021(b)(2) is insufficient to meet the rigorous standard of the Fifth Amendment which requires notice of what actions fall within the statute’s ambit. “[B]ecause we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972) (emphasis added). See also, United States v. Williams, 553 U.S. 285, 304 (2008) (“A conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” (emphasis added)); Connally, 269 U.S. at 393 (“The dividing line between what is lawful and unlawful cannot be left to conjecture. The citizen cannot be held to answer charges based upon [ ] statutes whose mandates are so uncertain that they will reasonably admit of different constructions. . . . The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue.”). Surely it is “axiomatic that precision of regulation must be the touchstone in an area so closely touching our
9

most precious freedoms." United States v. Robel, 389 U.S. 258, 265 (1967) (quoting NAACP v. Button, 371 U.S. 415, 438 (1963)). Particularly troubling is the notion that the Executive can make determinations that affect American citizens’ life and liberty without notice of what conduct would subject that individual to said “discretionary power.” “Just as in the First Amendment context, the due process protection against vague regulations does not leave [regulated parties] . . . at the mercy of noblesse oblige.” Fox, 132 S. Ct. 2307, 2318 (quoting United States v. Stevens, 130 S. Ct. 1577, 1591 (2010)). As Judge Forrest rightly noted, “[a] citizen has just as much interest—indeed, perhaps more—in understanding what conduct could subject him or her to indefinite military detention without a trial as he or she does in understanding the parameters of a traditional criminal statute that carries a statutory maximum term of imprisonment and cannot be enforced in the absence of full criminal due process rights.” Order at 102-03. Without definitional parameters, §1021(b)(2) provides no notice to whistleblowers whether their conduct will result in their military detention. Whistleblowers are already confronted with questionable constitutional protections and discretionary agency regulations and statutes which lack meaningful mechanisms for disclosure of illegal government conduct. This coupled with overzealous prosecutors who have historically “thrown the book” at
10

whistleblowers leaves whistleblowers with every incentive to remain quiet at the expense of protecting the public interest. A. Whistleblowers Lack Meaningful Protections and §1021(b)(2)’s Vague Terms and Perilous Penalties Further Endanger Whistleblowers The primary legislation affecting federal whistleblowers, the Whistleblower Protection Act of 1989 (“WPA”), provides certain federal employees who report evidence of violations of law, rule or regulation including gross mismanagement, waste of funds, or substantial and specific danger to the public health or safety with some protection, including judicial review. See 5 U.S.C. § 2302(b)(8). Significantly, employees in the intelligence community are excluded from the WPA’s protections. See 5 U.S.C. § 2302(a)(2)(C)(ii).9 Indeed, whistleblowers in the intelligence community lack any judicial remedies and are limited to internal administrative avenues. The Intelligence Community Whistleblower Protection Act of 1998 (“ICWPA”) is toothless and creates bureaucratic procedures that makes blowing the whistle an exercise in futility. It also fails to provide substantive protections against retaliatory personnel action and creates no mechanism for corrective actions. Under the ICWPA, whistleblowers can only report an “urgent concern,” defined as: (1) a serious or flagrant problem, abuse, violation of law or Executive
The recently enacted Whistleblower Protection Enhancement Act improves protections for many federal employee whistleblowers but still excludes intelligence community whistleblowers. Pub. Law No. 112-199 (2012). 11
9

order, or deficiency relating to the funding, administration, or operations of an intelligence activity involving classified information; (2) a false statement to Congress, or a willful withholding from Congress, on an issue of material fact relating to the funding, administration, or operation of an intelligence activity; or (3) an action, including a personnel action described in section 2302(a)(2)(A) of Title 5, constituting reprisal or threat of reprisal prohibited under section 7(c) in response to an employee's reporting an urgent concern in accordance with this section. See 50 U.S.C.A. § 403q (d)(5)(G)(i); 5 U.S.C.A. § 8H (h)(1). In reporting an “urgent concern,” an employee in the intelligence community must first lodge a complaint with the Inspector General (“IG”) who then must notify the director of the agency of which the employee is likely attempting to blow the whistle. The agency director must then submit the information sent by the IG to the intelligence congressional committees. If either the IG or the agency director fail to forward the report, an employee may contact Congress directly but only after notifying the agency director, through the IG, about her intent to contact the intelligence committees and obtaining from the agency director, through the IG, the directions of how to submit that information to the committees. See 50 U.S.C.A. § 403q (d)(5), 5 U.S.C.A. § 8H (b) – (d). Neither the decision of the IG nor the agency head is subject to judicial review. See 50 U.S.C.A. § 403q (d)(5)(F), 5 U.S.C.A. § 8H (f).
12

As seen by countless examples, including that of National Security Agency whistleblower Thomas Drake, these procedures fail to provide even minimum protections for whistleblowers and create a chamber of silence where complaints of wrongdoing fall into black holes. Due to its circular and self-defeating whistleblowing procedures, ICWPA places whistleblowers between a rock and a hard place. Either whistleblowers report wrongdoing to those who are likely committing it and face professional (and possibly, personal) retaliation or look outwards of ICWPA and defy administrative procedures, resulting in similar or escalated consequences. Whether disclosure to non-covered parties places whistleblowers within the ambit of §1021(b)(2) of the NDAA is a question of grave concern and will likely result in potential whistleblowers opting for the third option: rejecting their roles as “watchdogs of wrongdoing and partners in performance” and remaining silent. In recent years, Congress attempted to pass legislation with more robust protections for employees in the intelligence communities. Each such attempt ultimately failed due to congressional stalls or the Obama Administration’s objections.10 Without said protections, whistleblowers are stifled and
10

In lieu of legislation, President Obama issued a directive in October 2012 specifically prohibiting retaliation against employees who engage in “protected disclosures” and promising external review by a panel of unaffiliated IGs after exhausting internal agency procedures. The directive remains largely undeveloped and requires agencies to identify what disclosures are protected, create the procedures for internal review and draft guidance for individual employees about the processes for disclosures. Given the Obama Administration’s conspicuous lack of 13

compromised. Section 1021(b)(2)’s vague terms and perilous penalties promises to further chill whistleblowers. II. Whistleblowers Have Historically Faced Retaliatory Criminal Investigations and Prosecutions For “Blowing the Whistle” While whistleblower legislation has focused on employment retaliation, whistleblowers face far more dangerous consequences; they face retaliatory criminal investigations and prosecutions with no whistleblower statutory protections or affirmative defenses. Following September 11 and the U.S.’s “War on Terror”, investigations and prosecutions of whistleblowers increased in number and severity. Alarmingly, the Obama Administration charged six whistleblowers under the draconian World War I-era Espionage Act, 18 U.S.C. §792 et seq., for alleged mishandling of classified information, usually involving government misconduct, as compared to three cases brought by all previous presidential administrations combined.11

support for increased protections for whistleblowers in the intelligence community, amicus doubts the directive will result in meaningful protections for whistleblowers, particularly in that it fails to grant judicial review. 11 The Obama Administration charged six whistleblowers under the Espionage Act: former NSA employee Thomas Drake; former FBI translator Shamai Leibowitz; expert on North Korea’s nuclear program Stephen J. Kim; former CIA officer Jeffrey Sterling; former CIA agent John Kiriakou; and Army intelligence analyst Bradley Manning. Prior to the Obama Administration, three individuals were prosecuted under the Act: Plaintiff-Appellee Daniel Ellsberg who disclosed the Pentagon Papers; Samuel L. Morison; and Pentagon analyst Lawrence Franklin. Only two of the nine prosecutions under the Espionage Act succeeded, Leibowitz, who pled guilty to disclosing transcripts from an FBI wiretap at the Israeli Embassy in Washington, D.C., and Morison, who was convicted of giving satellite photographs of a Soviet ship to a British publication, Jane’s Defense Weekly. While former DOJ lawyer Thomas Tamm was not charged under the Espionage Act, he was subject to a five-year criminal investigation. See Dana 14

In addition, whistleblowers have been charged with other criminal statutes based on spurious allegations or have undergone invasive and destructive criminal investigations, where their homes were searched, their possessions detained, and their security clearances revoked. Some whistleblowers waited years before being indicted while others were threatened with criminal charges and remained under a cloud of possible prosecution but were never subsequently prosecuted. Indeed, during the sentencing hearing of whistleblower Thomas Drake, the court blasted these aggressive prosecutorial tactics as “unconscionable” and against “the very root of what this country was founded on.” Sentencing Transcript, United States v. Thomas Drake, No. 10-CR-181-RDB (D. MD Jul. 15, 2011), available at http://www.fas.org/sgp/jud/drake/071511-transcript.pdf at 42-3. Precedent has shown that prosecutors have “thrown the book” at whistleblowers even when whistleblowers did not disclose classified information. Prosecutorial overreach resulting in escalated investigations and trumped up charges, as demonstrated by the cases of Thomas Drake, Jesselyn Radack and others, provide illustrious examples of what whistleblowers have faced in a preNDAA America and a harbinger of what whistleblowers may face should this

Liebelson, Six Americans Obama and Holder Charged Under the Espionage Act (and One Bonus Whistleblower), The Project on Government Oversight (POGO) Blog, Jan. 27, 2012, http://pogoblog.typepad.com/pogo/2012/01/six-americans-obama-and-holder-charged-under-theespionage-act-and-one-bonus-whistleblower.html. See also, Richard Moberly, Whistleblowers and the Obama Presidency: The National Security Dilemma, Emp. Rts. & Emp. Pol’y J., Vol. 16 (2012). 15

Court overturn the District Court’s ruling. Yet under the NDAA, whistleblowers risk far more perilous outcomes than criminal prosecution, where at minimum they are guaranteed a trial before a jury and must be found “guilty beyond a reasonable doubt”; they face indefinite military detention with their sole remedy of a habeas petition based on a drastically lower standard of “preponderance of the evidence.” A. The Example of Thomas Drake Amicus’s concern over §1021(b)(2)’s vagueness and the NDAA’s applicability is far from theoretical and is informed by its own clients and staff who have been labeled and treated as “enemies of the state.” Indeed, amicus’s client, Thomas Drake was prosecuted under the Espionage Act, a statute meant for spies, for his retention of unclassified documents. Drake is a highly accomplished veteran of the intelligence community. He spent ten years in the Air Force specializing in intelligence and then served as a CIA analyst and contractor for the National Security Agency (“NSA”) for 12 years before joining it full time, ironically, on September 11, 2001. As a contractor with the NSA, Drake became aware of a data collection program, ThinThread, that efficiently and cost-effectively provided intelligence for government agencies to identify terrorism threats and networks, while protecting Americans’ privacy, and was believed to have the capability to provide the necessary intelligence to thwart the 9/11 attacks had it been launched upon its completion. Yet NSA management
16

rejected ThinThread in favor of a vastly more expensive and ineffective program, Trailblazer. Following September 11, Drake became increasingly concerned with the NSA’s decision to employ Trailblazer, which cost taxpayers several billion dollars and was regarded as a failure12. Around that time, Drake also learned of the NSA’s warrantless domestic surveillance program that employed components of ThinThread stripped of privacy controls to allow unlawful domestic data mining and surveillance, in contravention to over a century of Fourth Amendment law. See, e.g., Virginia v. Moore, 128 S.Ct. 1598, 1603 (2008); United States v. Karo, 468 U.S. 705, 714 (1984); Steagald v. United States, 451 U.S. 204, 220 (1981); Silverman v. United States, 365 U.S. 505, 511-12 (1961); Boyd v. United States, 116 U.S. 616, 621 (1886). Drake repeatedly followed the proverbial book and pursued official channels in reporting the NSA’s wrongdoing with his superiors, yet he was met with resistance and warnings to “mind his own business.” In September 2002, Drake assisted three retired NSA employees, J. Kirk Wiebe, William Binney and Edward Loomis, and a retired congressional staffer on the House Permanent Select Committee on Intelligence, Diane Roark, in filing a

12

Indeed six years and at least $1.2 billion after its launch, Trailblazer was still not operational. Siobhan Gorman, System Error, Baltimore Sun, Jan. 29, 2006, http://articles.baltimoresun.com/2006-01-29/news/0601280286_1_intelligence-experts-11intelligence-trailblazer. After the Trailblazer’s failure, Congress revoked the NSA’s authority to manage large projects for five years. 17

complaint with the Pentagon’s IG highlighting the NSA’s use of the wasteful and failed Trailblazer. Like Drake, Roark had alerted multiple high-ranking officials of Trailblazer and the warrantless domestic surveillance program, including the chairman of her committee, congressional members, Chief Justice William H. Rehnquist, and the legal counsel to the United States Vice President, to no avail.13 While Drake did not put his name on the complaint to the IG, he assisted in the investigation and used proper channels to provide the IG with thousands of classified and unclassified documents showing the NSA’s waste, fraud and abuse in employing the Trailblazer program. In late 2004, the Pentagon’s IG released a report substantiating Drake and the complainants’ allegations of fraud and abuse. Yet the report was classified as secret and its findings on the Trailblazer program were hidden from the public.14 Following the N.Y. Times’ revelation of the NSA warrantless wiretapping program in December 200515, Drake decided to provide unclassified information about Trailblazer and its lack of protection for Americans’ privacy to a reporter for the Baltimore Sun. While Drake knew that he was violating an NSA internal

Jane Mayer, The Secret Sharer: Is Thomas Drake an Enemy of the State?, New Yorker, May 23, 2011, http://www.newyorker.com/reporting/2011/05/23/110523fa_fact_mayer. 14 Amicus obtained a redacted copy of the classified report using the Freedom of Information Act (FOIA). Office of the Inspector General Department of Defense Audit Report: Requirements for the Trailblazer And Thinthread Systems, Dec. 15, 2004, available at http://www.whistleblower.org/storage/documents/IGR.pdf (last visited Dec. 15, 2012). 15 James Risen and Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. Times, Dec. 16, 2005, http://www.nytimes.com/2005/12/16/politics/16program.html?pagewanted=all. 18

13

regulation and risked losing his job, Drake had reached the end of the line in his complaints to government officials without any success and feared that the NSA would continue its unlawful operations unless publicly exposed. Starting in January 2006, the Sun published a series of articles highlighting NSA’s mismanagement in rejecting ThinThread, which included privacy protection mechanisms for Americans, for the expensive, undeveloped Trailblazer with no privacy protections. At no point did the government attempt to prevent the paper from publishing the story as it had done with the 2005 Times’ story on the warrantless wiretapping program.16 Nearly two years later on November 28, 2007, FBI agents raided Drake’s house, confiscated Drake’s documents, computers, books and office files and interrogated Drake for hours. A few months prior, on July 26, 2007, federal agents simultaneously raided and searched the houses of Binney, Wiebe and Roark, in retaliation for their filing of the supposedly confidential IG complaint. While the agents did not arrest or detain Binney, Wiebe and Roark, all three were told they were being criminally investigated. Following the raid on Drake’s house, Drake cooperated with investigators and provided information about his contacts with the Sun and his computer password to assure investigators that he was not the source for the warrantless

16

Mayer, supra note 13. 19

wiretapping story in the Times. Investigators interrogated Drake on several occasions for hours. Despite knowing that he was at risk of criminal prosecution, Drake fully cooperated with the questioning and investigation. Justice Department officials pressured Drake on multiple occasions to take a plea deal, threatening him with spending the “rest of his natural life behind bars” if he didn’t. Drake refused. Two and a half years after agents raided Drake’s house, the Department of Justice indicted Drake in April 2010 on ten separate counts, five of which were brought under the Espionage Act. Drake was the fourth case in U.S. history to be charged under the Espionage Act for alleged mishandling of classified materials – the Pentagon Papers’ whistleblower and Plaintiff-Appellee in this case Daniel Ellsberg was the first. Tellingly, Drake was not charged with disclosing classified information even though the government publicly argued that Drake endangered the lives of soldiers and disclosed sensitive national security information to America’s enemies.17 Rather, Drake was charged under the Espionage Act with improper retention of five allegedly classified documents.18

In the March 31, 2011 proceedings, the prosecutor stated: The “NSA does not have battleships, and they don’t have satellite photographs, and they don’t have troops, but, rather, what they do is they collect intelligence for the soldier in the field. So, when individuals go out and they harm that ability, our intelligence goes dark, and our soldier in the field gets harmed. . . . [I]ts simply incorrect to say that these documents are benign or insignificant.” Proceedings of March 31, 2011, United States v. Thomas Drake, No. RDB-10-181 (D. MD Mar. 31, 2011), available at http://www.fas.org/sgp/jud/drake/033111-hearing.pdf at 75-6. 18 Notably, many journalists retain unapproved documents as well as any individual with access 20

17

Only at the eleventh hour, four days before the start of Drake’s trial, did the DOJ drop the 10-count felony indictment, including all the charges under the Espionage Act. Drake pled to a minor misdemeanor of “exceeding authorized use of a computer” and was sentenced to one year of probation and community service. Where Drake initially faced up to 35 years in prison, he ultimately received none because he was afforded his “day in court.”19 B. The Example of Jesselyn Radack Drake’s case, in its implacability and overreach, is neither unique nor isolated. Amicus’s Director of National Security and Human Rights, Jesselyn Radack, faced appalling treatment when she blew the whistle and publicly disclosed her emails recommending against interrogating John Walker Lindh, the “American Taliban,” without his lawyer. As a legal ethics advisor for the DOJ in

to websites like Wikileaks. President George W. Bush’s former classification czar J. William Leonard stated of Drake’s case, “I’ve never seen a more deliberate and willful example of government officials improperly classifying a document.” Following Drake’s sentencing, Leonard filed a complaint against the NSA and DOJ seeking punishment for the officials who wrongfully classified the documents that Drake was charged for wrongfully retaining under the Espionage Act. 19 Following the government’s two and a half year investigation and prosecution of Drake, the former top spokesman for the Justice Department, Matthew Miller, reversed his stance on the prosecution of Drake, stating "Drake did seem to be trying to expose actual government waste. I think the outcome of the case probably shows that it was an ill-considered choice for prosecution." Josh Gerstein, Ex-DOJ Spokesman Defends Leak Probes, Politico, Mar. 10, 2012, http://www.politico.com/blogs/under-the-radar/2012/03/exdoj-spokesman-defends-leak-probes117014.html. Only two years earlier, Miller stated, “The indictment was brought on the merits, and nothing else." Scott Shane, Obama Takes a Hard Line Against Leaks to Press, N.Y. Times, June 11, 2010, http://www.nytimes.com/2010/06/12/us/politics/12leak.html?pagewanted=all ). Such a reversal was the consequence of Drake’s ability to challenge the evidence, a foreclosed right under military detention. 21

2001, Radack wrote over a dozen emails in response to a prosecutor’s inquiry of the ethical propriety of interrogating Lindh without a lawyer. A year later, Radack learned that the DOJ had only turned over two of her fourteen emails in response to a court order for all internal Justice Department correspondence about Lindh’s interrogation; the remainder of her emails had been purged from the file. Through technical support, Radack recovered the remainder of her emails and gave them to the prosecutor to submit to the court but soon discovered that they were never produced. Radack, like many whistleblowers, was faced with the monumental dilemma of staying quiet or disclosing the information that the government was unlawfully withholding. Ultimately, Radack decided to “blow the whistle” and released her emails to Newsweek which published a searing exclusive titled “The Lindh Case Emails,” widely credited with the collapse of the criminal case against John Walker Lindh.20 Following Radack’s disclosure, the Justice Department characterized her as a “traitor,” “turncoat,” and “terrorist sympathizer”. In the succeeding years, Radack was subjected to Machiavellian tactics, including being “gagged,” forced out of her job at the DOJ, placed under criminal investigation, fired from her next job in the private sector, reported to the state bars where she was licensed as a lawyer based on a secret report and put on the Terrorist Screening Center’s “No-

20

Michael Isikoff, The Lindh Case E-Mails, Newsweek, June 24, 2002, p.8. 22

Fly” list. While Radack was not subsequently indicted, the disclosure of her own emails cost her nearly everything else.21 III. Prosecutorial Overreach Against Whistleblowers Is A Harbinger of What Whistleblowers Will Likely Face Under the NDAA

With §1021(b)(2)’s undefined terms and lowered standards that divest an individual of fundamental due process rights, Radack or Drake might have been subjected to indefinite military detention if the NDAA was law at the time. The difference between the Justice Department’s label of Radack as a “terrorist sympathizer” and §1021(b)(2)’s terms of “substantial” or “direct” supporter of terrorist groups goes to the very heart of Plaintiffs’ constitutional challenge. To date, the government fails to provide guidance on prohibited conduct under §1021(b)(2), leaving whistleblowers like Radack and Drake greatly compromised.22 Amicus is deeply concerned that §1021(b)(2)’s vagueness will be employed as yet another tool in the prosecutorial kit to punish and deter whistleblowers who disclose information outside the formal channels. The Obama Administration’s words and deeds leave no doubt that the government will continue to use heavyRadack wrote a book about her decision to blow the whistle and the consequent retaliation. Jesselyn Radack, Traitor: The Whistleblower and the “American Taliban” (2012). 22 Radack and Drake are only two of many whistleblowers who have faced drastic prosecutorial retaliation. Amicus has represented hundreds of whistleblowers who have experienced similarly egregious treatment including demotions, forced mental health evaluations, personal threats, terminations, incarcerations – even indefinite preventative detention, e.g. John Doe. See Doe v. Rumsfeld, 800 F. Supp. 2d 94, 100 (D.D.C. 2011) (Rev’d Doe v. Rumsfeld, 683 F.3d 390 (D.C. Cir. 2012)). 23
21

handed tactics against whistleblowers. Indeed, President Obama’s appointment to head of the Justice Department’s national security division, Lisa Monaco, testified to Congress in May 2011 that “it would be my priority to continue the aggressive pursuit of [leak] investigations.”23 Whether that will include the use of the NDAA remains unclear. “Laws which regulate persons or entities must give fair notice of conduct that is forbidden or required,” Fox, 132 S. Ct. at 2317. Without notice of §1021(b)(2)’s definitional parameters, §1021(b)(2) chills both amicus, who must ethically advise their clients that they may be subject to the NDAA should they blow the whistle, and potential whistleblowers, resulting in dramatic externalities for our democracy at large. In the words of Judge Forrest: “A key question throughout these proceedings has been, however, precisely what the statute means—what and whose activities it is meant to cover. That is no small question bandied about amongst lawyers and a judge steeped in arcane questions of constitutional law; it is a question of defining an individual’s core liberties. The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention—potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. The

23

Shane, supra note 19. 24

Constitution requires specificity—and that specificity is absent from § 1021(b)(2).” Order at 4. CONCLUSION For the foregoing reasons, amicus respectfully urges this Court to affirm the District Court’s permanent injunction and find §1021(b)(2) of the NDAA unconstitutionally vague.

Dated: December 17, 2012

Respectfully submitted,

/s/ Reem Salahi Reem Salahi Hadsell Stormer Richardson & Renick, LLP 128 N. Fair Oaks Ave. Pasadena, CA 91103 T: (626) 585-9600 F: (626) 577-7079 reem@hadsellstormer.com Counsel for Amicus Curiae

25

CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 29(d) and Fed. R. App. P. 32(a)(7)(B) because it contains 5,943 words. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it was prepared in a proportionally spaced typeface using Microsoft Word 2010, Times New Roman, Size 14. Dated: December 17, 2012 /s/ Reem Salahi Reem Salahi

Sign up to vote on this title
UsefulNot useful