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

When the NSA wasted billions on a government contractor, Drake tried to do something about it. That was his first mistake.

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“A big part of the problem of the driftnet collection is that the information just sits in a pool waiting for a reason to exploit it,” German told me. “So whistleblowers are at great risk because, as they used to say in the FBI, no one is ‘administratively pure.’ Once a person becomes a whistleblower, agents have deep databases they can reach into to find anything that justifies firing them.”

Additionally, in 2011, the FBI changed its Domestic Investigations and Operations Guide to make it easier to identify any government officials who might be talking to the press. Previously, the government had required attorney general approval before accessing a journalist’s communications. But with the new DIOG, the FBI held that the policy only applied to journalists’ communications accessed via a search warrant. As the DIOG makes clear, the FBI asserts the right to access a journalist’s toll records (a record of everyone a person has called or e-mailed) using National Security Letters. And since those aren’t warrants, they don’t fall under the previous policy.

While the DIOG redacts most of the details about under what circumstances FBI agents can use NSLs to get journalists’ contact information, it makes it clear it is permissible in at least some situations. “If the NSL is seeking telephone toll records of an individual who is a member of the news media or news organization … there are no additional approval requirements other than those set out in DIOG Section 18.6.6.1.3.”

In other words, even as the government has increasingly been targeting whistleblowers as spies, it has made it easier -- potentially far, far easier -- for law enforcement to access the contact information of journalists the government deems to be witnesses, via their communication with sources, to a “crime.”

Then, last year, the director of National Intelligence added a question to the polygraph personnel with security clearances would undergo, that asks specifically about contacts with “unauthorized recipients,” including the media. As with Drake, this raises the likelihood a national security official will be fired solely for sharing unclassified information with the press.

The effect of demonizing whistleblowers and throwing invasive investigative techniques at both the whistleblowers and journalists who report on them is to sow fear.

“This arbitrariness in enforcement serves as a serious deterrent to whistleblowing because all employees know that if you become a target they will find something, even though all other agents who engage in the same act or omission aren’t punished at all,”said the ACLU’s German.

The Obama administration has set out to brand those who share information publicly as spies, even asserting sharing of information with the public is worse than sharing it with our worst enemies. But underneath that demonization, there’s an entire apparatus of invasive investigative tools that mean any national security insider can have his or her life ripped apart, under the guise of law, as retaliation for trying to expose wrongdoing.

To order a free DVD of the documentary, War on Whistleblowers, click here.

Marcy Wheeler blogs on law, national security, and civil liberties at Emptywheel.net. She is the author of Anatomy of Deceit: How the Bush Administration Used the Media to Sell the Iraq War and Out a Spy.