Why Whistleblowers Can't Get a Fair Trial

phantomfive writes "'Seven whistleblowers have been prosecuted under the Obama administration,' writes Jesselyn Radack, a lawyer who advised two of them. She explains why they can't get a fair trial. In the Thomas Drake case, the administration retroactively marked documents as classified, saying, 'he knew they should have been classified.' In the Bradley Manning case, the jury wasn't allowed to see what information was leaked. The defendants, all who have been charged with espionage, have limited access to court documents. Most of these problems happen because the law was written to deal with traitorous spies, not whistleblowers."

Comments

One and the same

[Akratist]

When a government is corrupt, dishonest, and incompetent, then a whistleblower and a spy are essentially the same thing, as they threaten the positions and livelihoods of the corrupt, dishonest, and incompetent politicians and bureaucrats who comprise it.

Re:One and the same

[Gaygirlie]

I don't quite agree. I get what you mean, but a whistleblower releases information to those who it isn't supposed to go in order to improve the security their country and the lives of their fellow countrymen, whereas spies release information to those who it isn't supposed to go in order to undermine the security of said country. While the methods and results may even be the same the intent is different.

Re:One and the same

[Anonymous Coward]

In the Thomas Drake case, the administration retroactively marked documents as classified, ...

Going back retroactively to MAKE someone a criminal is an act of corruption and injustice.

Son of bitch. I hated Bush and now Obama. Will there ever be a President that I can respect?

Re:One and the same

[cyborg_zx]

Will there ever be a President that I can respect?

The system does not seem designed to allow that.

Re:One and the same

[TWiTfan]

When a government is corrupt, dishonest, and incompetent, then a whistleblower and a spy are essentially the same thing

That's why I get such a kick out of it when these idiots get on TV and call Snowden a traitor because he didn't "go through the proper channels," as if the very agency he was ratting on was going to give him a fair hearing and not throw his ass in prison as a spy/hacker/traitor immediately.

Re: One and the same

[Anonymous Coward]

Vote third party. That's the only way it will ever happen.

Re:One and the same

[SirGarlon]

Going back retroactively to MAKE someone a criminal is an act of corruption and injustice.

It's also explicitly against the US Constitution: Article I, Section 9. The folks who wrote that document knew all the tricks in the tyrant's book -- from personal experience.

Of course, classified information is not a law, it's classified by executive order. I would point out that executive orders did not exist when the Constitution was written, and should not give the President a free pass to do what Congress is expressly forbidden from doing. By waving his hands and chanting "national security," the President places himself above the law and the Constitution. Again.

Re:One and the same

[kurt555gs]

Yes, Dwight D Eisenhower.

Re: One and the same

[hummassa]

No, because politicians and diapers ought to be changed frequently, and for the same reasons.

Re:One and the same

[i kan reed]

It's actually because the espionage act defines things that "apparently should" be classified as protected under law too. It's a bad law, but it's not the same as ex post facto.

Re:One and the same

[VortexCortex]

Here's Eisenhower's farewell address to America. Note that he tried to warn us about everything that has come to pass.

Re:One and the same

[kilfarsnar]

When a government is corrupt, dishonest, and incompetent, then a whistleblower and a spy are essentially the same thing

That's why I get such a kick out of it when these idiots get on TV and call Snowden a traitor because he didn't "go through the proper channels," as if the very agency he was ratting on was going to give him a fair hearing and not throw his ass in prison as a spy/hacker/traitor immediately.

And they're wrong anyway. Snowden did go through proper channels. He was ignored or told to mind his business. That's always the way it goes when one goes through proper channels. I don't think I have ever heard of a case where a person discovers wrongdoing, goes to his superior about it and has his superior actually take meaningful action.

It makes perfect sense, if you think about it (which is why the folks on TV get it wrong). Any given program has been conceived, discussed and agreed upon by people at a high level. They have run the scenarios and considered the outcomes and consequences. Now some staffer comes along and tells them that what they are doing is likely illegal and certainly creepy. They're going to listen to him and take his concerns seriously? Of course not! They're going to tell him to shut up. But the folks on TV will say Snowden should have gone through proper channels, as though he would have gotten any traction. They're either serving an agenda or depressingly naive.

Re:One and the same

[ebno-10db]

It is a crime to intentionally misclassify documents ...

How many people have been prosecuted for clearly overclassifying information?

Re:One and the same

[ebno-10db]

I'm old enough to remember the Watergate hearings, but as time goes by Nixon doesn't seem so bad.

What about Iran-Contra, which raised much more serious questions of unconstitutionality and abuse of power. No higher-ups were prosecuted. It makes Watergate look like an honest affair.

Re: One and the same

[TheRaven64]

No. But they won't win either. The point of voting for a third party is to build a group of the electorate who aren't voting for either of the two big parties. Once that happens, either the two major parties will start to make changes to their policies to try to win back those voters, or candidates from a third party will actually stand a chance and so you're likely to see an increase in candidates you might actually want (as well some some crazy fringe parties that you almost certainly don't).

Re:One and the same

[Anonymous Coward]

True, individuals anticipated all sorts of things (both right and wrong), but so much of it was rooted in personal philosophy and so little could be backed up with any kind of historical evidence or models, even when they were right it was little more then an personal guess.

That's because if we base on "historical evidence or models", what we'll find is that the norm for humanity is some form of authoritarian rule by a small group of elites, including that monarchy that the Founding Fathers were trying to move away from.

The Founding Fathers, following queues from the Enlightenment, wanted to break away from that. They want to break away from how humanity has always behaved. Yes, the Founding Fathers are some of the first Progressives.

Just like Progressives today and in every age, they're seen as rebels and traitors by the establishment. We only call them heroes because they succeeded.

Re:One and the same

[PRMan]

It is EXACTLY the same as an ex post facto law. You are not allowed to think you are not breaking the law and then retroactively be told you were breaking the law. It's exactly that simple.

Re: One and the same

[AthanasiusKircher]

Voting 3rd party is for people who have a great deal of idealism but a poor grasp of math, politics, or history.

... or for people who do not feel that they, in good conscience, could actually support either of the candidates being offered by the two major parties.

Keep in mind that a significant percentage of people who vote 3rd party might otherwise stay home and not vote at all. If they choose to vote for a 3rd-party candidate, they are not altering the outcome of the race between the two parties, since otherwise they wouldn't be participating at all. You can argue that their choice is irrational, but if they don't actually see a significant difference between the two major parties (which is increasingly difficult to see on many issues outside of "hot-button" social issues), they may not feel like they could support either one. Would you rather that they simply stayed home and not express their voice at all?

The key thing often forgotten by those who argue against anyone ever voting for a 3rd party is that they somehow think that all voters are "owned" by the 2 major parties. And if someone chooses to vote for a 3rd party, they are somehow "taking votes away" from a major party candidate.

Here's a newsflash: LOTS of people DON'T VOTE. Some are just lazy, but others simply can't be bothered to make a "choice" between two candidates when they like neither one of them. If a 3rd-party guy comes along and excites them enough to get that person to vote, no vote was "stolen" from any major party.

Contrary to popular belief, candidates actually need to EARN their votes. They don't come by default to them just because Democratic voters always vote Democrat or whatever. Lots of registered Democrats don't vote at various times, and other times they will vote Republican or even for some other party.

There's a reason why "get out the vote" campaigns are so critical to elections -- it's that many people are not even motivated enough to support a major-party candidate by getting off their butt and going to the local polling place. For many of those people, who otherwise might not vote at all, the major parties have not succeeded in convincing them of anything -- they didn't EARN those votes.

If such people come out and vote for a 3rd-party candidate they actually believe in, they are making a positive contribution to the process: and they should be applauded for it, not told that they are simply stupid or ignorant.

Re: One and the same

[Common Joe]

No, voting 3rd party does not actually help. It, unfortunately, is tightly integrated into the problem and contributes to the very effect proponents claim it counters. Voting 3rd party is for people who have a great deal of idealism but a poor grasp of math, politics, or history.

Then what do you suggest? Let's tally: Voting 3rd party does not help, Voting for the current two parties does not help; Trying to get into the current 2 parties and work it from the inside does not help. What's next up on the list? Are you advocating rebellion? Historically, that doesn't tend to work too well either.

I see no good option. They're all ugly. So far, voting 3rd party seems to be the best of bad options I can come up with.

So, what is your solution? I'm all ears for that option that actually does help and give us a net gain instead of eroding our freedoms and taking away our wealth and equality.

Re: One and the same

[DuckDodgers]

I agreed with your line of thinking for almost 20 years, but I no longer do.

The lesser of two evils argument is a big deal. I support abortion rights. I support separation of Church and State with respect to marriage (give any two adults that want legal marriage rights those rights, or give no two adults those legal marriage rights, don't selectively define who can and can't have them based on religious law). I support social welfare programs. I support a tax system that shifts the tax burden into a purely progressive system - which is not what we have now, because of the differences between the income tax and the capital gains tax. The Democratic Party supports those things, the Republican Party does not, so the Democrats are my lesser of two evils. But both parties are hopelessly corrupt.

The current surveillance without court oversight and indefinite detention of terror suspects without court oversight was started under a Republican President and majority Republican Congress and perpetuated by a Democrat President with a majority Democrat progress.

The Democrats that made me one of the hopeful in 2008 are trying to block, trap, and prosecute the whistleblowers that Obama promised to protect in his campaign. There was a Slashdot article when that statement was removed from the Obama campaign websites a few months ago.

No Child Left Behind was the last serious attempt to reform education on a national level, and it was bipartisan and undoubtedly started with the best of intentions, but it takes money away from schools that need it most, gives money to schools that need it least, buries teachers in paperwork, and sucks the love of learning out of kids by grilling them with standardized tests.

The Corporate Average Fuel Economy (CAFE) standards to save the environment by increasing fuel economy are a token gesture meant to appear like action without doing anything - the US uses 70% of its petroleum per year on transportation, but that's not all personal passenger vehicles - commercial vehicles aren't subject to any similar big jumps in fuel economy standards. A big chunk of the energy and other natural resources used in the country is used by businesses, and in many cases it's cheaper to deal with inefficient energy use on an ongoing basis than to make a big one time investment in more efficient equipment and then either pay interest on the loans you made to get it or deal with the opportunity costs associated with investing in efficiency instead of something else. CAFE is a classic case of "make it look like you're doing something!"

The War on Drugs against marijuana is the latest form of the make-work programs under FDR's New Deal. Employ some people (DEA and associated prosecutors, plus lots of prison staff) and keep other people out of the work force (drug offenders in prison). We should have just put the pot heads to work digging ditches, spent the rest of the money funding free rehab clinics for any citizen, and saved ourselves a lot of heartache - and it's taken too damn long for the federal view of a substance clearly less dangerous in all respects than alcohol to change.

Our freedoms are eroding, our education is failing, our veterans are suffering, and the middle class is shrinking. These clowns are all either incompetent to fix it or too busy profiting from the problems. I will still support a local candidate that's Democrat or Republican based on the person. But on the national level, I will be voting third party, even if I think that third party is looney, because the other two parties are Sauron and Saruman trading jokes between Mordor and Isengard while the world burns.

Re: One and the same

[dkleinsc]

Voting for a third party can make a real difference, actually, and thinking otherwise is also demonstrating a poor grasp of US history:
1. An upstart single-issue party in the 1860's ran a not-very-prominent Congressman for President, and won. The party in question implemented the policy proposal they had organized around, dramatically changing the nature of the country.

2. A popular president who was disillusioned with the policies of his own party split off and formed his own party in 1912. He didn't win an unprecedented third term for the presidency, but his party elected a bunch of people to state offices and the US House. More importantly, many of the policies advocated by that party, previously considered political non-starters, were implemented in many of the states where the party had significant following, and a later president (more on him in a moment) implemented quite a few of those policies on the national level.

3. In the 1930's, the president who implemented the 1912 party's policies was able to convince his party to go along with it in part because they were supported by a third party that was winning hundreds of thousands of votes and some local elections in key states.

When you look at the history of third parties, generally speaking the credible threat of a third party challenge forces the major party that the third party is most like to adopt enough of that third party's positions to keep the voters who are considering bolting to the third party. Otherwise, the only competition the two major parties have is each other, and they can between the two of them take any issue completely out of public consideration by simply agreeing between the two of them that a particular policy is acceptable to both of them.

For a recent example of this, look at the Patriot Act - there was nobody to vote for that actually opposed it, so it was going to happen regardless of what the pesky voters thought. Had there been credible third-party threats opposing the move (e.g. Greens or Libertarians), then sitting Republicans would be worried that they might lose because enough people voted Libertarian to let the Democrat win, while sitting Democrats would be worried that they might lose because enough people voted Green to let the Republican win.

Re: One and the same

[ShanghaiBill]

That will never happen due to "winner takes all" laws in the States.

It has already happened, numerous times. A third party won in 1860, when Abraham Lincoln, of the upstart Republican Party, beat both the Democrats and the Whigs. In the 1920s and 1930s, the Socialist Party won enough votes that the Democrat Party co-opted much of their platform to win back those votes. In the 1990s, "culture war" conservatives like Pat Buchanan won enough votes to pull the Republican Party sharply to the right on social issues.

History has shown that voting third party is by far the most effective way to change how America is governed.

Re:One and the same

[anagama]

Yes -- and then there is the fact that federal code base of crimes is so vast, vague, and its implementation left up to so many agencies, that even the ABA can't count all of the crimes one can commit, most of which have no element of intent.

Estimates of the number of regulations range from 10,000 to 300,000. None of the legal groups who have studied the code have a firm number.

"There is no one in the United States over the age of 18 who cannot be indicted for some federal crime," said John Baker, a retired Louisiana State University law professor who has also tried counting the number of new federal crimes created in recent years. "That is not an exaggeration."

http://online.wsj.com/news/art...

See also: Three Felonies a Day: http://www.threefeloniesaday.c...

So what would you call it when there is criminal framework that is unknowable and that punishes you even if you have no ill intent? Despotic?

Re: One and the same

[Lost Race]

IMHO the best reason to vote for a minor party candidate is to send a message to the major parties: If you move in the direction of this minor party, you might get my vote next time.

This Is Nothing New.

[rmdingler]

Labels such as traitor or revolutionary hero are interchangeable, depending on how things work out.

Washington, Adams, Franklin, Hancock, et al would've been hung as traitors if the Brits had quashed the American rebellion.

Bucking the system is courageous for a reason.

Re:This Is Nothing New.

[DrLang21]

That's why there are supposed to be legal protections for whistleblowers. These cases are not supposed to even get past the court hearing. However, they made a stupid exception for anything dealing with national security, which is where the most egregious corruption can occure.

Traitorous spies?

[Vintermann]

Traitorous spies? No, that is false. The law was written to deal with socialists advocating isolationism in WWI.

Re:They aren't whistleblowing.

[artg]

In a democracy, the public IS a higher authority than the government. Sometimes, the officials forget this.

Re:They aren't whistleblowing.

[Entropius]

Whistleblowing is reporting malpractice to a higher authority.

In a democracy, the highest authority is the people. Manning knew that she'd have no success going to her commanding officer, or his CO, or his CO, or even the President or Congress. So he reported the malpractice to the President's boss: the people.

Paywalled articles on slashdot

[l2718]

The link is to a news story behind the Wall Street Journal's paywall; I think such stories should be reconsidered. Such situations are acceptable with posts on science, which often link both to a popular-science write-up and to the original journal article: probably those readers with the expertise to read the original literature are subscribers. Links to ordinary news stories should follow the same policy: if there must be a link to a paywalled story, a link to a generally accessible version should be expected as well.

Re:Paywalled articles on slashdot

[_Sharp'r_]

Use this link instead, click on the top result:
https://www.google.com/search?...

A pain, I know.

Hope and Change

[DNS-and-BIND]

"As Americans, we can take enormous pride in the fact that courage has been inspired by our own struggle for freedom, by the tradition of democratic law secured by our forefathers and enshrined in our Constitution. It is a tradition that says all men are created equal under the law and that no one is above it."

"Change will not come if we wait for some other person or some other time. We are the ones weâ(TM)ve been waiting for. We are the change that we seek."

"Iâ(TM)m in this race not just to hold an office, but to gather with you to transform a nation."

"Change doesnâ(TM)t come from Washington. Change comes to Washington."

Now watch me get modded down for using Obama's own words against him. Remember, citizens, report suspicious subversive activity immediately!

Re:They aren't whistleblowing.

[Overzeetop]

Except that we do not live in a democracy, we live in a republic. A democracy fails to function beyond a certain number, so a republic is formed to increase efficiency. That is not to say that we are discovering the limits of functioning of a republic, too. Humans may simply not be justly organizable above a certain multiplier of their monkeysphere.

So Don't Convict

[CanHasDIY]

In the Bradley Manning case, the jury wasn't allowed to see what information was leaked.

When you're on a jury, you have a duty to both the accused and your nation to consider evidence fairly, within Constitutional constraints. Being prevented from seeing evidence would, to me, be all the reason necessary to give a verdict of 'not guilty.'

All accused American citizens have a right to confront their accusers and the evidence presented against them, in a fair and speedy trial conducted within due process. Period, end of story; don't like it? Amend the Constitution or GTFO.

Nope, they anticipated this

[Anonymous Coward]

Sadly, the math pretty much guarantees this outcome. The people who designed the system we use had few models to look to and did not have the background to anticipate the problems that would arise.

"There is nothing which I dread so much as a division of the republic into two great parties, each arranged under its leader, and concerting measures in opposition to each other. This, in my humble apprehension, is to be dreaded as the greatest political evil under our Constitution."
Letter to Jonathan Jackson (2 October 1780), "The Works of John Adams", vol 9, p.511

Re:Nope, they anticipated this

[TheRaven64]

And yet they went with a set of first-past-the-post elections that pretty much guarantee this outcome. If they'd written their constitution a hundred or so years later, then they'd have had the mathematical tools available to study and understand this, rather than just some vague disquiet.

Re:If 10 parties have 10% of the vote each

[penix1]

It's much more difficult to sack the US President, so difficult in fact that it's never happened and we've had some pretty bad presidents.

Actually, that is untrue. Nixon would have been convicted in the Senate had he not resigned. It was a count of the votes that convinced him to give up the ghost and protect what was left of the dignity of the office. Many forget that Vice President Agnew was forced to resign as well as had criminal charges filed against him. Again, he would have also been impeached and convicted had he not taken the plea deal.

To bring this back on topic...

It was Nixon's Watergate scandal that was the result of a whistle blower, (deep throat) that alerted the American public to the illegal dealings in the oval office. Without whistle blowers, the illegal activities of those in power would go unchecked much like it is today.