War on Whistleblowers: How the Obama Administration Destroyed Thomas Drake For Exposing Government Waste

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Jacob Appelbaum, an American who is a security researcher and volunteer for WikiLeaks, has been heavily surveilled for two and a half years in actions apparently related to the WikiLeaks investigation. He has been stopped and interrogated at borders more than four times, subjected to physical surveillance, and had his communication metadata collected by administrative subpoena. The information collected ranges from the unique identifier assigned to every Internet user, the identifying number assigned to one’s Internet provider, cell phone service provider, general local information, phone numbers of recipients of the target’s calls and texts, e-mail addresses to which communications were sent, and more. And, the FBI once hinted, a National Security Letter was likely served on his Gmail account. Appelbaum has also talked about the danger the investigation has done to those associated with him, which in his case includes democracy activists in authoritarian countries.

Guilt By Association

The other thing that comes with some of these counterintelligence investigative techniques is a very expansive standard for collection: information need only be “relevant to” an investigation to require a third party to turn over the information requested by the government. In this way, the government can also collect information on associates of a whistleblower who may have no evident ties to a leak or crime. This permits the government to collect personal information on associates of a target or whistleblower, on the theory of guilt by association.

In Drake’s case, the government, using ordinary Article III search warrants, investigated everyone who had ties with him, Drake said in our conversation, undermining their First Amendment right of assembly.

“Everybody that was associated with me, either because they used to work for me or had links to me or had ties to me by mere association -- assembly, that freedom to do so under the First Amendment -- were investigated, were interrogated,” Drake said. “And some of those same people lost their jobs and their livelihood because of their association with me. Mere association meant they were guilty. And they were going to be punished -- punished -- because of that association.”

Worse may have happened in the WikiLeaks investigation. In response to a Freedom of Information request from the Electronic Privacy Information Center for information on investigation into supporters of WikiLeaks, the government refused to turn over information, in part, because it was statutorily prohibited from doing so. Yet it wouldn’t reveal the statute in question, because “to disclose which statute or further discuss its application publicly would undermine interests protected by [the ongoing investigation into WikiLeaks], as well as by the withholding statute.”

The government went so far as to plead with the judge not to reveal the statutes under which the government was investigating WikiLeaks supporters, writing: “Defendants respectfully request that the Court not identify the Exemption 3 statute(s) at issue.”

That the government clearly doesn’t want to reveal what statutory theories it is using to investigate not just Bradley Manning, but mere supporters of WikiLeaks, strongly suggests it is relying on one of the national security statutes that would be triggered by an espionage investigation, which would come with a gag order.

Your Data in a Driftnet

The government has three other relatively new tools it could wield against whistleblowers.

As the ACLU’s senior policy counsel Mike German pointed out in an interview, the government’s compilation of massive databases of information on U.S. persons data makes it possible to find evidence of “wrongdoing” on a person as soon as they expose themselves as whistleblowers. These databases are assembled through what is known as a “driftnet” process, where the government just collects everybody’s metadata, much as the fishing industry uses mile-long driftnets to catch everything that wanders into the net.