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Why Whistleblowers Can't Get a Fair Trial 441

Posted by samzenpus
from the I-fought-the-law dept.
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."
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Why Whistleblowers Can't Get a Fair Trial

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  • One and the same (Score:5, Insightful)

    by Akratist (1080775) on Thursday January 23, 2014 @09:11AM (#46044961)
    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.
  • by rmdingler (1955220) on Thursday January 23, 2014 @09:17AM (#46044997)
    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.

  • by Gaygirlie (1657131) <gaygirlie@hotmail. c o m> on Thursday January 23, 2014 @09:17AM (#46045001) Homepage

    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.

  • by Anonymous Coward on Thursday January 23, 2014 @09:29AM (#46045071)

    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?

  • by artg (24127) on Thursday January 23, 2014 @09:37AM (#46045107)
    In a democracy, the public IS a higher authority than the government. Sometimes, the officials forget this.
  • by cyborg_zx (893396) on Thursday January 23, 2014 @09:38AM (#46045109)

    Will there ever be a President that I can respect?

    The system does not seem designed to allow that.

  • by Entropius (188861) on Thursday January 23, 2014 @09:38AM (#46045111)

    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.

  • by TWiTfan (2887093) on Thursday January 23, 2014 @09:38AM (#46045119)

    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.

  • by Anonymous Coward on Thursday January 23, 2014 @09:42AM (#46045145)

    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.

    The Rosenbergs were executed as spies (and I have no particular beef with their classification as such) because they released information to the Russians about the atomic program in order to restore a balance of power, thus aiding the security of the United States. Just by means that the government did not agree to.

    As long as it is the government stance that "security" is tantamount to "being able to squash everybody else like a bug" (and yes, that's basically the NSA approach as well), it is hard to distinguish enemies from whistleblowers, like it is hard to distinguish average citizens from enemies.

  • by Anonymous Coward on Thursday January 23, 2014 @09:46AM (#46045179)

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

  • by kurt555gs (309278) <kurt555gs@@@ovi...com> on Thursday January 23, 2014 @10:01AM (#46045341) Homepage

    Yes, Dwight D Eisenhower.

  • Hope and Change (Score:5, Insightful)

    by DNS-and-BIND (461968) on Thursday January 23, 2014 @10:01AM (#46045345) Homepage

    "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!

  • by geogob (569250) on Thursday January 23, 2014 @10:04AM (#46045369)

    The sad part is where you seem think the president has anything to do with this, or, for that matter, anything to say about this.

  • by Overzeetop (214511) on Thursday January 23, 2014 @10:06AM (#46045393) Journal

    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.

  • by Anonymous Coward on Thursday January 23, 2014 @10:12AM (#46045453)

    Wow, I grew up in south america as well and I have lots of colleagues from Russia. I am living in the UK now.

    How many lies in few sentences. It is so easy to find the truth. Just compare the number of people that immigrated to the USA with the number that emigrated from the USA and you will see how much it is a fallacy.

  • by hummassa (157160) on Thursday January 23, 2014 @10:15AM (#46045477) Homepage Journal
    No, because politicians and diapers ought to be changed frequently, and for the same reasons.
  • So Don't Convict (Score:5, Insightful)

    by CanHasDIY (1672858) on Thursday January 23, 2014 @10:17AM (#46045505) Homepage Journal

    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.

  • by _Sharp'r_ (649297) <sharper AT booksunderreview DOT com> on Thursday January 23, 2014 @10:19AM (#46045523) Homepage Journal

    Because the people involved in the prosecutions and classifications don't report up to him as the head of the executive branch? Because he doesn't have an absolute pardon power to pardon anyone he likes? You'd blame the CEO of a company for what his company does. In this case the President has way more legal power to intervene than a CEO would in a similar situation. Heck, after President Obama's recent stint of just changing laws with only a fig leaf of legal basis beyond he said so, presumably his administration thinks he can just unilaterally declare they weren't enforcing the law in these particular types of cases.

  • by jythie (914043) on Thursday January 23, 2014 @10:46AM (#46045765)
    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.
  • by Anonymous Coward on Thursday January 23, 2014 @10:55AM (#46045845)

    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

  • by kilfarsnar (561956) on Thursday January 23, 2014 @10:57AM (#46045873)

    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.

  • by ebno-10db (1459097) on Thursday January 23, 2014 @11:04AM (#46045955)

    It is a crime to intentionally misclassify documents ...

    How many people have been prosecuted for clearly overclassifying information?

  • by TheRaven64 (641858) on Thursday January 23, 2014 @11:14AM (#46046055) Journal
    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).
  • by Arker (91948) on Thursday January 23, 2014 @11:18AM (#46046093) Homepage

    And not just socialists, right wing opponents of war were not treated notably better.

    The espionage act has been used against real spies on occasion, but more often it has been used as a stick against dissenters.

  • by ebno-10db (1459097) on Thursday January 23, 2014 @11:32AM (#46046253)

    Except that we do not live in a democracy, we live in a republic.

    It's time to update your dictionary, because you're using an 18th century definition of democracy. Back then democracy meant what we now call direct democracy. Nowadays the word has become more general, to the point where it includes both direct democracies and representative democracies. My apologies if the English language changes. I have trouble reading Chaucer too.

    http://www.merriam-webster.com... [merriam-webster.com]

  • by AthanasiusKircher (1333179) on Thursday January 23, 2014 @11:33AM (#46046265)

    Unfortunately the way our voting system was constructed, you WILL always end up with 2 parties. End stop. Every other country that uses the US system has also ended up with 2 parties, it is built into the math, and no matter how much enthusiasm there is for any particular 3rd party, the 2 party system is what it will stabilize to every, single, time.

    While you are right that the U.S. system is flawed and will tend toward 2 parties, you draw bad conclusions from that premise. That premise does not guarantee that (1) it will always be the same two parties, nor does it guarantee (2) that those parties will always adhere to the same agenda/platform for all time.

    Notice that we didn't always have the two parties we have now, for example. The Republican party emerged in the mid-1800s and overtook the Whig party [wikipedia.org] for good reasons. There have also been a number of times since then where a 3rd-party presidential candidate has significantly contributed toward changing the issues discussed in an election. The most recent significant one was probably Ross Perot, who received about 20% of the popular vote in 1992. His presence in debates and during the campaigns served to highlight issues that otherwise may not have even been discussed, as well as problematizing the consistency of the two major party platforms. (For the record, I was NOT a Perot fan, but that's just the most recent example of a strong presidential 3rd-party candidate.) If a 3rd party managed to get a candidate with the charisma, connections, and rhetorical skills of Obama in 2008, it certainly could be possible for a party shift to occur like that which destroyed the Whigs 150 years ago.

    And, if you're willing to look beyond the presidency, you can find plenty of examples of 3rd-party candidates actually elected to various offices, including sometimes to federal office.

    One can philosophize all they want, but the way our system was built, voting 3rd party streghtens the position of the candidate furthest from the voter's preferences. It is no throwing your vote away, it is helping the worst candidate.

    Except when your candidate gets elected, which actually does happen, particularly in many local or state elections.

    And even if your candidate doesn't get elected, the examples I mention can often cause major party candidates to shift their views if the 3rd party candidate is perceived as a significant threat.

    So no, it's not as simple as you make it out to be. Just because we have a system that tends toward 2 major parties doesn't mean you have to shut up and take whatever crap they serve to you... and sometimes voting for a 3rd party candidate can facilitate changes. (Not saying it always will -- but it's not always the irrational choice you make it out to be either.)

  • by Anonymous Coward on Thursday January 23, 2014 @11:34AM (#46046273)

    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.

  • by PRMan (959735) on Thursday January 23, 2014 @11:53AM (#46046475)
    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.
  • by Common Joe (2807741) on Thursday January 23, 2014 @12:04PM (#46046585) Journal

    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.

  • by DuckDodgers (541817) <keeper_of_the_wo ... m ['yah' in gap]> on Thursday January 23, 2014 @12:24PM (#46046839)
    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.
  • by ebno-10db (1459097) on Thursday January 23, 2014 @12:42PM (#46047049)

    What about United States v. Reynolds [wikipedia.org], where the US government claimed the state secrets privilege (in fact, invented it for this trial) to cover up the fact that in 1948 a plane crashed because of an engine fire (before you say anything about keeping aircraft performance secret, you should know that engine fire problems on B-29's had been public knowledge for years).

    Moreover, if it's not clear at exactly what level something should be classified, then whether something is supposedly under-classified is unclear, and hence isn't prosecutable as a crime, because excessively vague criminal laws are unconstitutional.

    So if as you say, you can't criticize someone for over-classifying something, and it's never prosecuted anyway, and under-classifying it is too vague to be a matter of criminal law, then why (as per the GGP) is intentionally mis-classifying information a crime? It's a say-so law, to be prosecuted for threat and harassment, and yield a conviction only if you have an acquiescent judge who favors the government over the Constitution.

  • by cbhacking (979169) <been_out_cruising-slashdot@yahoo. c o m> on Thursday January 23, 2014 @12:50PM (#46047135) Homepage Journal

    Are you a Russian? I'm not. He gave me plenty of information... If you can list a way he could have released his information to the US as a whole without also letting it be seen by the Russians (who are opponents of ours on multiple political issues, but not our enemies by any stretch of the definition) then I will grant there is *some* point to what you said. Otherwise, it's complete bullshit.

    Also, as others have pointed out, he did try going through proper channels. He was told to drop it. How high did you expect him to go, and what good did you expect it to do? The president himself has expressed support for the NSA's programs *and* branded Snowden a criminal *before* he took asylum in Russia, so that part of your argument is bullshit. Enough members of congress have said (or voted in favor of) much the same things that I doubt it would do much good to have gone to them, either. With the heads of the executive and legislative branches complicit in this travesty, Snowden *did* go over their heads: to the people who elect those scum. We, the citizens of these United States of America.

    So, I ask you again: how was Snowden supposed to reveal the information to We The People, without also revealing it to our "enemies"? (If you wanted to pick examples of enemies, you could do much better than Russia).

  • by anagama (611277) <obamaisaneocon@nothingchanged.org> on Thursday January 23, 2014 @01:54PM (#46047895) Homepage

    Democrats have assumed the term "progressive" and until they relinquish it, at least in America, the term cannot be seen to represent "rebels and traitors" toward the establishment. Indeed, if there is anything Democrats excel at, it is entrenching the rightward push of the GOP as the new normal. It is, for example, Democrats who have taken concepts that only a decade ago were considered radical, like due process free detention, and not only entrenched that practice, but expanded it to include due process free execution.

  • by Urza9814 (883915) on Thursday January 23, 2014 @02:12PM (#46048065)

    That is better, but still overly simplistic.

    Say 10% of the electorate (exaggerated numbers to make a point) votes Libertarian next election. Now, further suppose that everyone who voted Libertarian would have the Republicans as their second choice, and suppose the dems win by under 10%. This means that, had they voted for their second choice, it would have won instead.

    HOWEVER, you also have to look at the long-term impacts and at how wide the gap is between choices. The Republicans would probably see this 10% going Libertarian and start adopting more Libertarian policies going forward to try to win this extra 10%. If the Libertarians agreed with 0% of Democrat policies, 10% of Republican policies, and 100% of Libertarian policies (again, exaggerated numbers...) and as a result of the changes they now agree with 30% of Republican policies, then they probably came out ahead by voting third party. Even though it cost them in the short term, the next election there will be a significantly greater number of their issues represented.

    For a more real-world example: Both the Dems and the GOP are very ardently pro-war. So the only *electoral* option to try to get more anti-war policies to be adopted is to vote third party. You can't possibly choose the party that represents you best if neither party represents you at all. In which case, you should at least register your discontent, lest they think you're just too busy watching American Idol....

  • by anagama (611277) <obamaisaneocon@nothingchanged.org> on Thursday January 23, 2014 @02:28PM (#46048201) Homepage

    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... [wsj.com]

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

    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?

  • by Q-Hack! (37846) * on Thursday January 23, 2014 @02:57PM (#46048441)

    The creation of the electoral college had nothing to do with large distances or travel time. It had everything to do with giving the lower population areas a voice. If we went with just the popular vote, candidates would end up only campaigning in a handful of high population cities. I once saw an extreme example, but quite apropos. Imagine somebody campaigning on the idea all our problems would be solved by nuking Montana. That candidate would only have to convince enough people in the top 5-10 population centers to win enough votes to do so. Can you at least see that the people in Montana might have a problem with that? I am always open minded about replacing the electoral college, but unless an idea comes across that gives low population centers a voice, it probably is not a good idea.

  • by Lost Race (681080) on Thursday January 23, 2014 @04:58PM (#46050205)

    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.

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