The End Game in the War on Whistleblowers

By: Jesselyn Radack & Kathleen McClellan

As attorneys representing dozens of national security whistleblowers who have been criminally investigated and prosecuted under the draconian Espionage Act for disclosing information in the public interest, we have long cautioned that the war on whistleblowers was a back-door way of going after journalists. That warning was borne out when the US brought criminal charges against Julian Assange for ordinary journalistic activity: investigating government wrongdoing, cultivating sources, and encouraging encryption. However, we now have proof that the situation was far more sinister than just criminalizing protected First Amendment activity. The CIA discussed how to kidnap or assassinate controversial Wikileaks founder Julian Assange — all the more audacious because Assange had been granted humanitarian asylum precisely because he had had valid fears of persecution based on his political opinion.

Even more alarming, the CIA also discussed how to handle Wikileaks contacts, which over the years have included mainstream newspapers and journalists, American and foreign elected officials, and attorneys. Wikileaks associates were deemed valid targets for electronic surveillance and in-person espionage. It is a dystopian irony that Wikileaks first gained widespread notoriety when it published a video – titled “Collateral Murder” – that depicted a U.S. military helicopter gunning down two Reuters journalists, presumably not knowing they were journalists, only for the CIA to later plan to intentionally assassinate the journalist behind the release of the video.

It may feel tempting to dismiss this latest affront to the free press as the anti-media ravings of the President who unleashed an insurrectionist mob on the U.S. Capitol, but the truth is much more complicated and implicates both political parties across three presidencies.

In 2010, National Security Agency (NSA) whistleblower Thomas Drake became the first whistleblower indicted under the Espionage Act in forty years, and his case had far-reaching implications for both national security whistleblowing and investigative journalism. Even though the Drake case collapsed due to government overreach, the Espionage Act became the go-to law for threatening and prosecuting whistleblowers and media sources.

The Obama administration prosecuted more national security whistleblowers under the Espionage Act than any other administration in history. No one suffered more than Chelsea Manning, whose disclosures to Wikileaks evidenced massive deception by the U.S. government and war crimes in Iraq and Afghanistan. Manning was branded a traitor, held in torturous, inhuman conditions at Quantico before being convicted of any crime, and sentenced to 35 years in prison. Manning’s treatment laid bare the extreme outer bounds of how far the U.S. government would go to kill reporting that contradicted what the U.S. government was telling the public, or even more verboten, journalism that exposed crimes committed by the U.S. government.

U.S. government officials did not hesitate in condemning future whistleblowers as traitors. When NSA whistleblower Edward Snowden was forced into exile after exposing the NSA’s mass spying, he received multiple death threats and one former CIA Director called for his hanging.

While Manning suffered behind bars, in 2012, the Obama administration started a public relations campaign to support its expansion of the U.S. drone program. CIA director John O. Brennan gave a landmark speech making the case for drones, describing them as a legal tool that operated with “surgical precision.” In 2014, lawsuits forced the release of the legal justifications for drone strikes, revealing a stunningly broad view of executive power that permitted killing of anyone, anywhere, even American citizens, if the President deemed them a threat.  Thanks to whistleblowers and journalism, the public has since learned that drone strikes are hardly “surgical.” In August 2021, as Afghanistan fell to the Taliban, a U.S. drone strike in Afghanistan annihilated a family. The U.S. government initially claimed the strike had stopped a terrorist attack, but after investigative journalists challenged that view, the government was forced to acknowledge its mistake. Our client, the Air Force whistleblower (Daniel Hale) who revealed years earlier that the U.S. government routinely underreported civilian casualties, recently began serving a 45 month prison sentence for telling the public what the government did not want them to know.

As one of his last acts in office, Obama commendably commuted Manning’s prison sentence. But the Obama administration left the legal support for the assassination program firmly in place at the Justice Department. Obama also left open the secret grand jury investigation targeting Julian Assange, which began as far back as 2011. The Trump administration quickened that pace of Espionage Act prosecutions and ratcheted up rhetoric condemning the media. After Wikileaks published another series of leaks in 2017, the CIA dubbed Wikileaks a “non-state hostile intelligence service.” In 2019, the Trump administration took the extraordinary step of indicting Assange for engaging in conduct that national security journalists engage in on a daily basis.

The idea that the CIA spent considerable time planning ways to kidnap and assassinate Assange and spy on Wikileaks “contacts” may read to many like the paranoid suspicions of fringe tinfoil hat-wearers. But, to us as attorneys representing dozens of national security whistleblowers threatened and prosecuted as traitors and spies when their only crime was facilitating investigative journalism, it reads too much like reality. Because national security whistleblowers are integral to investigative journalism and a free press, it is the natural progression from the now decade-old “war on whistleblowers.” Protected by a system of secrecy that evades outside oversight, immersed in a culture where whistleblowers are deemed traitors, and armed with bi-partisan legal precedent justifying extra-judicial killings, the CIA felt emboldened enough to seriously entertain conversations that were once unthinkable in American democracy.

Jesselyn Radack is the Director of the Whistleblower & Source Protection Program (WHISPeR) at ExposeFacts, a program dedicated to protecting national security whistleblowers and media sources. Kathleen McClellan is the Deputy Director of WHISPeR. Radack and McClellan represent Daniel Hale, Thomas Drake, and dozens of other national security whistleblowers.