12-3176_hedges v obama_brief of amicus curiae

7/30/2019 12-3176_Hedges v Obama_Brief of Amicus Curiae

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CHRISTOPHER HEDGES, Daniel Ellsberg, Jennifer Bolen,

Noam Chomsky, Alexa OBrien, US Day of Rage, Kai Wargalla,

Hon. Birgitta Jonsdottir M.P.,

Plaintiffs-Appellees,

v.

BARACK OBAMA, individually and as representative of the United States

of America, Leon Panetta, individually and in his capacity as the executiveand representative of the Department of Defense,

Defendants-Appellants.

DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024

1-800-531-2028

United States Court of Appeals

For the Second Circuit-----------------

12-3176, 12-3644

BRIEF OFAMICUS CURIAE

GOVERNMENTACCOUNTABILITY PROJECT IN SUPPORT OF

PLAINTIFFS-APPELLEES AND AFFIRMANCE

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

REEM SALAHI

HADSELL STORMER

RICHARDSON & RENICK, LLP128 N. Fair Oaks Avenue

Pasadena, CA 91103

(626) [email protected]

Counsel for Amicus Curiae


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CORPORATE DISCLOSURE

Pursuant to Fed. R. App. P. 26.1, amicus curiae Government Accountability

Project submits the following identification of corporate parents, subsidiaries and

affiliates: NONE.


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TABLE OF CONTENTS

AMICUS CURIAES STATEMENT OF INTEREST...............................................1

INTRODUCTION AND SUMMARY OF ARGUMENT........................................2

ARGUMENT.............................................................................................................4

I. Section 1021(b)(2)s Expansive and Vague Terms Provide No Notice of

Prohibited Conduct And Greatly Chill Whistleblowers Activity ..................4

A. Whistleblowers Lack Meaningful Protections and 1021(b)(2)s

Vague Terms and Perilous Penalties Further Endanger

Whistleblowers....................................................................................11

II. Whistleblowers Have Historically Faced Retaliatory Criminal Investigations

and Prosecutions For Blowing the Whistle................................................14

A. The Example of Thomas Drake ..........................................................16

B. The Example of Jesselyn Radack........................................................21

III. Prosecutorial Overreach Against Whistleblowers Is A Harbinger of What

Whistleblowers Will Likely Face Under the NDAA ....................................23

CONCLUSION........................................................................................................25


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TABLE OF AUTHORITIES

Al-Odah v. U.S.

611 F.3d 8 (D.C. Cir. 2010)......................................................................... 3-4

Almerfedi v. Obama654 F.3d 1 (D.C. Cir. 2011).............................................................................3

Boyd v. United States

116 U.S. 616 (1886).......................................................................................17

Connally v. General Construction Co.

269 U.S. 385 (1926).....................................................................................7, 9

Doe v. Rumsfeld,800 F. Supp. 2d 94, 100 (D.D.C. 2011)

(RevdDoe v. Rumsfeld, 683 F.3d 390 (D.C. Cir. 2012)..............................23

FCC v. Fox TV Stations, Inc.

132 S. Ct. 2307 (2012)..................................................................... 7-8, 10, 24

Grayned v. City of Rockford

408 U.S. 104 (1972).........................................................................................9

Hamdi v. Rumsfeld542 U.S. 507 (2004).........................................................................................4

Lanzetta v. New Jersey

306 U.S. 451 (1939).....................................................................................7, 8

NAACP v. Button

371 U.S. 415 (1963).......................................................................................10

N.Y. Times v. United States403 U.S. 713 (1971) ................................................................................ 5, 6-7

Papachristou v. City of Jacksonville

405 U.S. 156 (1972).........................................................................................7


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Silverman v. United States,

365 U.S. 505, 511-12 (1961) .........................................................................17

Steagald v. United States

451 U.S. 204 (1981).......................................................................................17

United States v. Karo,

468 U.S. 705, 714 (1984) ..............................................................................17

United States v. Robel

389 U.S. 258 (1967) .....................................................................................10

United States v. Stevens130 S.Ct. 1577 (2010)....................................................................................10

United States v. Thomas DrakeNo. RDB-10-181 (D. MD Jul. 15, 2011).......................................................15

United States v. Thomas DrakeNo. RDB-10-181 (D. MD Mar. 31, 2011).....................................................20

United States v. Williams553 U.S. 285 (2008).........................................................................................9

Virginia v. Moore

128 S. Ct. 1598 (2008)...................................................................................17

FEDERAL STATUTES

Prohibited Personnel Practices

5 U.S.C. 2302(a)(2)(C)(ii) ..........................................................................11

5 U.S.C. 2302(b)(8) ....................................................................................11

Inspector General for Agency5 U.S.C.A. 8H (f) ........................................................................................12

5 U.S.C.A. 8H (b) .......................................................................................12

5 U.S.C.A. 8H (h)(1) ..................................................................................12

50 U.S.C.A. 403q (d)(5) .............................................................................12

50 U.S.C.A. 403q (d)(5)(F) ........................................................................12

50 U.S.C.A. 403q (d)(5)(G)(i)....................................................................12


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Espionage and Censorship

World War I-Era Espionage Act 18 U.S.C. 792..........................................14

NDAA 1021 .............................................................................................................8

NDAA 1021(b)(2)...........................................................................................passim

OTHER AUTHORITIES

Mary-Rose Papandrea,Lapdogs, Watchdogs, and Scapegoats: The Press and

National Security Information, 83 Ind.L.J. 233, 254 (2008)..........................5

Richard Moberly, Whistleblowers and the Obama Presidency: The National

Security Dilemma, Emp. Rts. & Emp. Poly J., Vol. 16 (2012)....................15

Pub. Law No. 112-199 (2012) .................................................................................11


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AMICUS CURIAES STATEMENT OF INTEREST1

Amicus curiae, the Government Accountability Project (GAP), is an

independent, nonpartisan, nonprofit organization that promotes corporate and

government accountability by protecting whistleblowers and advancing

occupational free speech. GAP advocates for the effective implementation of

whistleblower protections throughout industry, international institutions and the

federal government, focusing on issues involving national security, food safety and

public health.

GAP defends whistleblowers and offers legal assistance in instances where

disclosures affect the public interest. For over 33 years, GAP has represented

major whistleblowers who have exposed gross injustices under every presidential

administration since the groups inception. GAP is at the forefront of advocating

for whistleblower rights and protections, having seen retaliation against such

individuals ranging from professional demotions to criminal prosecutions. GAPs

specific interest in the outcome of this case is 1021(b)(2)s lack of definitional

parameters and its consequent chilling effect on whistleblowers in the intelligence

community. GAP fears that 1021(b)(2)s vague terms of substantial support,

direct support and associated forces will become the basis for the military

1 All parties consent to the filing of this brief. No counsel for any party authored any part of thisbrief, and no person other than amicus and its counsel contributed money for the preparation andsubmission of this brief. FRAP 29(c)(5).


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detention of whistleblowers.

Amicus define a whistleblower as an employee who discloses information

that s/he reasonably believes is evidence of illegality, gross waste or fraud,

mismanagement, abuse of power, general wrongdoing, or a substantial and specific

danger to public health and safety. Typically, whistleblowers speak out to parties

that can influence and rectify the situation. These parties include the media,

organizational managers, hotlines or Congressional members/staff.

INTRODUCTION AND SUMMARY OF ARGUMENT

Following the September 11, 2001 attacks, the U.S. government waged war

against those it professedly deemed to be responsible. What ensued, however, was

a regime of legally questionable policies and practices, including the CIAs

rendition program, warrantless wiretapping of Americans and the use of enhanced

interrogation techniques a widely acknowledged euphemism for torture on

American and foreign nationals. Recently, in the name of national security

Congress ratified and the Executive signed into law an unconstitutional statute,

1021(b)(2) of the National Defense Authorization Act for Fiscal Year 2012

(NDAA). Section 1021(b)(2) greatly expands the Executives military detention

authority to include U.S. citizens who [were] a part of or substantially supported

al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against

the United States or its coalition partners, including any person who has committed


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a belligerent act or has directly supported such hostilities in aid of such enemy

forces. In no part of 1021 does the government define the expansive and vague

terms: substantially supported, directly supported or associated forces.

Without definitional parameters, whistleblowers face unprecedented risks

when disclosing even unclassified documents. Indeed, whistleblowers historical

treatment serves as a harbinger of what whistleblowers may face should this Court

uphold 1021(b)(2)s constitutionality: capricious and aggressive prosecutions

with some of the gravest charges that can be brought against American citizens,

including the Espionage Act.

Whistleblowers already lack meaningful protections. Those who seek to

expose government fraud, waste or illegality have limited avenues to do so and

face serious retaliation, up to criminal investigations and even prosecutions. In

public forums, including at hearings and in the media, the Justice Department has

defamed these whistleblowers as terrorist sympathizers and enemies of the

state. How such labels differ from 1021(b)(2)s substantial support may be the

difference between a whistleblowers right to a civilian trial subject to the legal

standard of guilty beyond a reasonable doubt and military detention subject to

the exceedingly lower standard of preponderance of the evidence. See Almerfedi

v. Obama, 654 F.3d 1, 5 (D.C. Cir. 2011) (finding that the preponderance of the

evidence standard applies in evaluating habeas petitions); see alsoAl-Odah v. U.S.,


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611 F.3d 8, 13-14 (D.C. Cir. 2010).

Like the delicate balance that must be drawn between maintaining

government secrecy and disclosing illegal and unethical conduct, the government

too must balance its responsibility of protecting this nation and safeguarding its

citizens constitutional guarantees. It is during our most challenging and

uncertain moments that our Nations commitment to due process is most severely

tested; and it is in those times that we must preserve our commitment at home to

the principles which we fight abroad. Hamdi v. Rumsfeld, 542 U.S. 507, 532

(2004). Accordingly amicus urge this Court to affirm the District Courts

permanent injunction which held, in part, that 1021(b)(2) provides insufficient

notice and violates the Due Process Clause of the Fifth Amendment.

ARGUMENT

I. Section 1021(b)(2)s Expansive and Vague Terms Provide No Noticeof Prohibited Conduct And Greatly Chill Whistleblowers Activity

Following the September 11, 2001 attacks and the corresponding War on

Terror, whistleblowers played a pivotal role in exposing arguably illegal and

unethical government actions, including the National Security Agencys

warrantless wiretapping program,2 the CIAs rendition program and use of

2 Michel Isikoff, The Fed Who Blew the Whistle, Newsweek Magazine, Dec. 12, 2008,http://www.thedailybeast.com/newsweek/2008/12/12/the-fed-who-blew-the-whistle.html.


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waterboarding3 and the prisoner abuse at Abu Ghraib.4 By exposing illegal

conduct, waste, fraud, abuse and malfeasance, whistleblowers have historically

advanced democratic functions through transparency and governmental

accountability.5 As Supreme Court Justice Stewart stated in his concurrence in

N.Y. Times v. United States: I should suppose, in short, that the hallmark of a

truly effective internal security system would be the maximum possible disclosure,

recognizing that secrecy can best be preserved only when credibility is truly

maintained. 403 U.S. 713, 729 (1971) (White, J., concurring).

The importance of whistleblowers has been acknowledged by the highest

officials in this country, including President Obama who stated while running for

office: Often the best source of information about waste, fraud, and abuse in

government is an existing government employee committed to public integrity and

willing to speak out. Such acts of courage and patriotism, which can sometimes

save lives and often save taxpayer dollars, should be encouraged rather than stifled.

3 Peter Van Buren, The Patriotism of the Whistleblower, Mother Jones, Sept. 11, 2012,http://www.motherjones.com/politics/2012/09/patriotism-whistleblower.4 Bill Weir,Abu Ghraib Whistle-Blower Speaks Out, ABC News, Aug. 16, 2006,http://abcnews.go.com/GMA/story?id=2318457&page=1.5 Gregory Heisler, Persons of the Year: The Whistle-Blowers, Time, Dec. 22, 2002,http://www.time.com/time/specials/packages/0,28757,2022164,00.html (highlighting persons ofthe year including three whistleblowers Sherron Watkins of Enron, Coleen Rowley of the FBIand Cynthia Cooper of WorldCom); Amanda Ripley and Maggie Sieger, Coleen Rowley: TheSpecial Agent, Time Magazine, Dec. 30, 2002,http://www.time.com/time/magazine/article/0,9171,1003988-1,00.html; Mary-Rose Papandrea,Lapdogs, Watchdogs, and Scapegoats: The Press and National Security Information, 83 Ind.L.J.233, 254 (2008).


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We need to empower federal employees as watchdogs of wrongdoing and partners

in performance.6

Unfortunately, whistleblowers continue to lack both freedoms and

protections. When disclosing government fraud or malfeasance, whistleblowers

are often retaliated against and contrarily become the target, rather than the source,

of an investigation. Without proper protections, whistleblowers are chilled from

speaking out and serving in their uniquely suited roles as watchdogs. The

consequence is a weakened democracy that operates under a veil of secrecy.

At present, many whistleblowers have few protections to safeguard them

from retaliation. Indeed, whistleblowers in the intelligence community7 lackany

meaningful protections and fully risk compromising their professional and personal

wellbeing when blowing the whistle. Where the Supreme Court upheld the First

Amendment rights of recipients of classified information in its seminal caseN.Y.

6See Agenda Ethics, Change.gov, http://change.gov/agenda/ethics_agenda/ (last visited Dec. 9,2012).7 The National Security Act of 1947, as amended, defines the intelligence community toinclude: the Office of the Director of National Intelligence, the Central Intelligence Agency, theNational Security Agency, the Defense Intelligence Agency, the National Geospatial-IntelligenceAgency, the National Reconnaissance Office, offices within the Department of Defense for thecollection of specialized national intelligence through reconnaissance programs, the intelligenceelements of the Army, Navy, Air Force, Marine Corps, Coast Guard, Federal Bureau ofIntelligence, Drug Enforcement Administration, and Department of Energy, the Bureau ofIntelligence and Research of the Department of State, the Office of Intelligence and Analysis ofthe Department of the Treasury, elements of the Department of Homeland Security who analyzeintelligence information, and any other element of any department or agency designated by thePresident or jointly by the Department of the National Intelligence and the head of thedepartment or agency concerned, as an element of the intelligence community. 50 U.S.C. 401a(4)(2006).


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Times v. United States, it left unanswered the rights of whistleblowers in disclosing

illegal government conduct through classified or unclassified means. 403 U.S. 713

(1971).

Due to its vagueness, 1021(b)(2) of the NDAA further threatens

whistleblowers who may be deemed substantially or directly supporting Al-

Qaeda, the Taliban or associated forces when they blow the whistle. As

exemplified below, whistleblowers have been labeled and prosecuted as enemies

of the state, even when disclosing unclassified documents. They have been

subjected to draconian laws and placed on terrorist lists, including the Terrorist

Screening Centers No Fly list. Under the NDAA, whistleblowers have no

notice of what conduct places them within the ambit of 1021(b)(2) with the

potential consequence of indefinite military detention.

Living under a rule of law entails various suppositions, one of which is that

[all persons] are entitled to be informed as to what the State commands or forbids.

Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972) (quotingLanzetta

v. New Jersey, 306 U.S. 451, 453 (1939). See also, Connally v. General Constr.

Co., 269 U.S. 385, 391 (1926) ([A] statute which either forbids or requires the

doing of an act in terms so vague that men of common intelligence must

necessarily guess at its meaning and differ as to its application, violates the first

essential of due process of law); FCC v. Fox TV Stations, Inc., 132 S. Ct. 2307,


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2317 (2012) (A fundamental principle in our legal system is that laws which

regulate persons or entities must give fair notice of conduct that is forbidden or

required.);Lanzetta, 306 U.S. at 453 (No one may be required at peril of life,

liberty or property to speculate as to the meaning of penal statutes. 8).

In the proceedings before the District Court, the government failed to define

the words substantially supported and directly supported while offering that

associated forces be defined according to the nebulous laws of war. See Opinon

and Order (hereinafter, Order) at 99-100. On appeal, the government provides

little guidance on the definitions of said terms and merely persists in putting forth

an undefined, moving target, subject to change and subjective judgment. Id. at

106. IndeedAmici Senators John McCain, Lindsey Graham and Kelly Ayotte,

members of the Senate Committee on Armed Services who helped author and

enact NDAA 1021 concede that 1021(b)(2) is subject to the discretionary whims

of the Executive: The government has stated, in the clearest possible fashion, that

the activities alleged by plaintiffs are not within the ambit of 1021 . . . detention

authority because the plaintiffs lack the requisite nexus with al-Qaeda. . . . Because

detention is a discretionary power of the executive, this determination is

conclusive. See Brief ofAmici Curiae Senators John McCain, Lindsey Graham,

8 Due to the NDAAs detention capabilities, it parallels penal statutes. As the District Courtfound: To the extent that the 1021(b)(2) purports to confer authority to detain Americancitizens for activities occurring purely on American soil, it necessarily becomes akin to acriminal statute, and therefore susceptible to a vagueness analysis. Order at 101.


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and Kelly Ayotte in Support of Appellants (hereinafter, McCain Brf.) at 35.

Merely stating that the government has designated certain individuals

actions outside the ambit of 1021(b)(2) is insufficient to meet the rigorous

standard of the Fifth Amendment which requires notice of what actions fall within

the statutes ambit. [B]ecause we assume that man is free to steer between lawful

and unlawful conduct, we insist that laws give the person of ordinary intelligence a

reasonable opportunity to know what isprohibited, so that he may act accordingly.

Vague laws may trap the innocent by not providing fair warning. Grayned v. City

of Rockford, 408 U.S. 104, 108 (1972) (emphasis added). See also, United States

v. Williams, 553 U.S. 285, 304 (2008) (A conviction fails to comport with due

process if the statute under which it is obtained fails to provide a person of

ordinary intelligence fair notice of what isprohibited, or is so standardless that it

authorizes or encourages seriously discriminatory enforcement. (emphasis

added)); Connally, 269 U.S. at 393 (The dividing line between what is lawful and

unlawful cannot be left to conjecture. The citizen cannot be held to answer charges

based upon [ ] statutes whose mandates are so uncertain that they will reasonably

admit of different constructions. . . . The crime, and the elements constituting it,

must be so clearly expressed that the ordinary person can intelligently choose, in

advance, what course it is lawful for him to pursue.). Surely it is axiomatic that

precision of regulation must be the touchstone in an area so closely touching our


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most precious freedoms." United States v. Robel, 389 U.S. 258, 265 (1967)

(quotingNAACP v. Button, 371 U.S. 415, 438 (1963)).

Particularly troubling is the notion that the Executive can make

determinations that affect American citizens life and liberty without notice of

what conduct would subject that individual to said discretionary power. Just as

in the First Amendment context, the due process protection against vague

regulations does not leave [regulated parties] . . . at the mercy ofnoblesse oblige.

Fox, 132 S. Ct. 2307, 2318 (quoting United States v. Stevens, 130 S. Ct. 1577,

1591 (2010)). As Judge Forrest rightly noted, [a] citizen has just as much

interestindeed, perhaps morein understanding what conduct could subject him

or her to indefinite military detention without a trial as he or she does in

understanding the parameters of a traditional criminal statute that carries a

statutory maximum term of imprisonment and cannot be enforced in the absence of

full criminal due process rights. Order at 102-03.

Without definitional parameters, 1021(b)(2) provides no notice to

whistleblowers whether their conduct will result in their military detention.

Whistleblowers are already confronted with questionable constitutional protections

and discretionary agency regulations and statutes which lack meaningful

mechanisms for disclosure of illegal government conduct. This coupled with

overzealous prosecutors who have historically thrown the book at


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whistleblowers leaves whistleblowers with every incentive to remain quiet at the

expense of protecting the public interest.

A.Whistleblowers Lack Meaningful Protections and 1021(b)(2)s VagueTerms and Perilous Penalties Further Endanger Whistleblowers

The primary legislation affecting federal whistleblowers, the Whistleblower

Protection Act of 1989 (WPA), provides certain federal employees who report

evidence of violations of law, rule or regulation including gross mismanagement,

waste of funds, or substantial and specific danger to the public health or safety with

some protection, including judicial review. See 5 U.S.C. 2302(b)(8).

Significantly, employees in the intelligence community are excluded from the

WPAs protections. See 5 U.S.C. 2302(a)(2)(C)(ii).9

Indeed, whistleblowers in the intelligence community lackany judicial

remedies and are limited to internal administrative avenues. The Intelligence

Community Whistleblower Protection Act of 1998 (ICWPA) is toothless and

creates bureaucratic procedures that makes blowing the whistle an exercise in

futility. It also fails to provide substantive protections against retaliatory personnel

action and creates no mechanism for corrective actions.

Under the ICWPA, whistleblowers can only report an urgent concern,

defined as: (1) a serious or flagrant problem, abuse, violation of law or Executive

9 The recently enacted Whistleblower Protection Enhancement Act improves protections formany federal employee whistleblowers but still excludes intelligence community whistleblowers.Pub. Law No. 112-199 (2012).


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order, or deficiency relating to the funding, administration, or operations of an

intelligence activity involving classified information; (2) a false statement to

Congress, or a willful withholding from Congress, on an issue of material fact

relating to the funding, administration, or operation of an intelligence activity; or

(3) an action, including a personnel action described in section 2302(a)(2)(A) of

Title 5, constituting reprisal or threat of reprisal prohibited under section 7(c) in

response to an employee's reporting an urgent concern in accordance with this

section. See 50 U.S.C.A. 403q (d)(5)(G)(i); 5 U.S.C.A. 8H (h)(1).

In reporting an urgent concern, an employee in the intelligence community

must first lodge a complaint with the Inspector General (IG) who then must

notify the director of the agency of which the employee is likely attempting to

blow the whistle. The agency director must then submit the information sent by

the IG to the intelligence congressional committees. If either the IG or the agency

director fail to forward the report, an employee may contact Congress directly but

only after notifying the agency director, through the IG, about her intent to contact

the intelligence committees and obtaining from the agency director, through the

IG, the directions of how to submit that information to the committees. See 50

U.S.C.A. 403q (d)(5), 5 U.S.C.A. 8H (b) (d). Neither the decision of the IG

nor the agency head is subject to judicial review. See 50 U.S.C.A. 403q

(d)(5)(F), 5 U.S.C.A. 8H (f).


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As seen by countless examples, including that of National Security Agency

whistleblower Thomas Drake, these procedures fail to provide even minimum

protections for whistleblowers and create a chamber of silence where complaints of

wrongdoing fall into black holes. Due to its circular and self-defeating

whistleblowing procedures, ICWPA places whistleblowers between a rock and a

hard place. Either whistleblowers report wrongdoing to those who are likely

committing it and face professional (and possibly, personal) retaliation or look

outwards of ICWPA and defy administrative procedures, resulting in similar or

escalated consequences. Whether disclosure to non-covered parties places

whistleblowers within the ambit of 1021(b)(2) of the NDAA is a question of

grave concern and will likely result in potential whistleblowers opting for the third

option: rejecting their roles as watchdogs of wrongdoing and partners in

performance and remaining silent.

In recent years, Congress attempted to pass legislation with more robust

protections for employees in the intelligence communities. Each such attempt

ultimately failed due to congressional stalls or the Obama Administrations

objections.10 Without said protections, whistleblowers are stifled and

10 In lieu of legislation, President Obama issued a directive in October 2012 specificallyprohibiting retaliation against employees who engage in protected disclosures and promisingexternal review by a panel of unaffiliated IGs after exhausting internal agency procedures. Thedirective remains largely undeveloped and requires agencies to identify what disclosures areprotected, create the procedures for internal review and draft guidance for individual employeesabout the processes for disclosures. Given the Obama Administrations conspicuous lack of


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compromised. Section 1021(b)(2)s vague terms and perilous penalties promises

to further chill whistleblowers.

II. Whistleblowers Have Historically Faced Retaliatory CriminalInvestigations and Prosecutions For Blowing the Whistle

While whistleblower legislation has focused on employment retaliation,

whistleblowers face far more dangerous consequences; they face retaliatory

criminal investigations and prosecutions with no whistleblower statutory

protections or affirmative defenses. Following September 11 and the U.S.s War

on Terror, investigations and prosecutions of whistleblowers increased in number

and severity. Alarmingly, the Obama Administration charged six whistleblowers

under the draconian World War I-era Espionage Act, 18 U.S.C. 792 et seq., for

alleged mishandling of classified information, usually involving government

misconduct, as compared to three cases brought by all previous presidential

administrations combined.11

support for increased protections for whistleblowers in the intelligence community, amicusdoubts the directive will result in meaningful protections for whistleblowers, particularly in thatit fails to grant judicial review.11 The Obama Administration charged six whistleblowers under the Espionage Act: former NSAemployee Thomas Drake; former FBI translator Shamai Leibowitz; expert on North Koreasnuclear program Stephen J. Kim; former CIA officer Jeffrey Sterling; former CIA agent JohnKiriakou; and Army intelligence analyst Bradley Manning. Prior to the Obama Administration,three individuals were prosecuted under the Act: Plaintiff-Appellee Daniel Ellsberg whodisclosed the Pentagon Papers; Samuel L. Morison; and Pentagon analyst Lawrence Franklin.Only two of the nine prosecutions under the Espionage Act succeeded, Leibowitz, who pledguilty to disclosing transcripts from an FBI wiretap at the Israeli Embassy in Washington, D.C.,and Morison, who was convicted of giving satellite photographs of a Soviet ship to a Britishpublication,Janes Defense Weekly. While former DOJ lawyer Thomas Tamm was not chargedunder the Espionage Act, he was subject to a five-year criminal investigation. See Dana


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In addition, whistleblowers have been charged with other criminal statutes

based on spurious allegations or have undergone invasive and destructive criminal

investigations, where their homes were searched, their possessions detained, and

their security clearances revoked. Some whistleblowers waited years before being

indicted while others were threatened with criminal charges and remained under a

cloud of possible prosecution but were never subsequently prosecuted. Indeed,

during the sentencing hearing of whistleblower Thomas Drake, the court blasted

these aggressive prosecutorial tactics as unconscionable and against the very

root of what this country was founded on. Sentencing Transcript, United States v.

Thomas Drake, No. 10-CR-181-RDB (D. MD Jul. 15, 2011), available at

http://www.fas.org/sgp/jud/drake/071511-transcript.pdfat 42-3.

Precedent has shown that prosecutors have thrown the book at

whistleblowers even when whistleblowers did not disclose classified information.

Prosecutorial overreach resulting in escalated investigations and trumped up

charges, as demonstrated by the cases of Thomas Drake, Jesselyn Radack and

others, provide illustrious examples of what whistleblowers have faced in a pre-

NDAA America and a harbinger of what whistleblowers may face should this

Liebelson, Six Americans Obama and Holder Charged Under the Espionage Act (and OneBonus Whistleblower), The Project on Government Oversight(POGO)Blog, Jan. 27, 2012,http://pogoblog.typepad.com/pogo/2012/01/six-americans-obama-and-holder-charged-under-the-espionage-act-and-one-bonus-whistleblower.html. See also, Richard Moberly, Whistleblowersand the Obama Presidency: The National Security Dilemma, Emp. Rts. & Emp. Poly J., Vol.16 (2012).


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Court overturn the District Courts ruling. Yet under the NDAA, whistleblowers

risk far more perilous outcomes than criminal prosecution, where at minimum they

are guaranteed a trial before a jury and must be found guilty beyond a reasonable

doubt; they face indefinite military detention with their sole remedy of a habeas

petition based on a drastically lower standard of preponderance of the evidence.

A.The Example of Thomas DrakeAmicuss concern over 1021(b)(2)s vagueness and the NDAAs

applicability is far from theoretical and is informed by its own clients and staff

who have been labeled and treated as enemies of the state. Indeed, amicuss

client, Thomas Drake was prosecuted under the Espionage Act, a statute meant for

spies, for his retention ofunclassifieddocuments.

Drake is a highly accomplished veteran of the intelligence community. He

spent ten years in the Air Force specializing in intelligence and then served as a

CIA analyst and contractor for the National Security Agency (NSA) for 12 years

before joining it full time, ironically, on September 11, 2001. As a contractor with

the NSA, Drake became aware of a data collection program, ThinThread, that

efficiently and cost-effectively provided intelligence for government agencies to

identify terrorism threats and networks, while protecting Americans privacy, and

was believed to have the capability to provide the necessary intelligence to thwart

the 9/11 attacks had it been launched upon its completion. Yet NSA management


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rejected ThinThread in favor of a vastly more expensive and ineffective program,

Trailblazer.

Following September 11, Drake became increasingly concerned with the

NSAs decision to employ Trailblazer, which cost taxpayers several billion dollars

and was regarded as a failure12. Around that time, Drake also learned of the NSAs

warrantless domestic surveillance program that employed components of

ThinThread stripped of privacy controls to allow unlawful domestic data mining

and surveillance, in contravention to over a century of Fourth Amendment law.

See, e.g., Virginia v. Moore, 128 S.Ct. 1598, 1603 (2008); United States v. Karo,

468 U.S. 705, 714 (1984); Steagald v. United States, 451 U.S. 204, 220 (1981);

Silverman v. United States, 365 U.S. 505, 511-12 (1961);Boyd v. United States,

116 U.S. 616, 621 (1886). Drake repeatedly followed the proverbial book and

pursued official channels in reporting the NSAs wrongdoing with his superiors,

yet he was met with resistance and warnings to mind his own business.

In September 2002, Drake assisted three retired NSA employees, J. Kirk

Wiebe, William Binney and Edward Loomis, and a retired congressional staffer on

the House Permanent Select Committee on Intelligence, Diane Roark, in filing a

12 Indeed six years and at least $1.2 billion after its launch, Trailblazer was still not operational.Siobhan Gorman, System Error, Baltimore Sun, Jan. 29, 2006,http://articles.baltimoresun.com/2006-01-29/news/0601280286_1_intelligence-experts-11-intelligence-trailblazer. After the Trailblazers failure, Congress revoked the NSAs authority tomanage large projects for five years.


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complaint with the Pentagons IG highlighting the NSAs use of the wasteful and

failed Trailblazer. Like Drake, Roark had alerted multiple high-ranking officials of

Trailblazer and the warrantless domestic surveillance program, including the

chairman of her committee, congressional members, Chief Justice William H.

Rehnquist, and the legal counsel to the United States Vice President, to no avail.13

While Drake did not put his name on the complaint to the IG, he assisted in

the investigation and used proper channels to provide the IG with thousands of

classified and unclassified documents showing the NSAs waste, fraud and abuse

in employing the Trailblazer program. In late 2004, the Pentagons IG released a

report substantiating Drake and the complainants allegations of fraud and abuse.

Yet the report was classified as secret and its findings on the Trailblazer program

were hidden from the public.14

Following theN.Y. Times revelation of the NSA warrantless wiretapping

program in December 200515, Drake decided to provide unclassified information

about Trailblazer and its lack of protection for Americans privacy to a reporter for

theBaltimore Sun. While Drake knew that he was violating an NSA internal

13 Jane Mayer, The Secret Sharer: Is Thomas Drake an Enemy of the State? , New Yorker, May23, 2011, http://www.newyorker.com/reporting/2011/05/23/110523fa_fact_mayer.14Amicus obtained a redacted copy of the classified report using the Freedom of Information Act(FOIA). Office of the Inspector General Department of Defense Audit Report: Requirements forthe Trailblazer And Thinthread Systems, Dec. 15, 2004, available athttp://www.whistleblower.org/storage/documents/IGR.pdf (last visited Dec. 15, 2012).15 James Risen and Eric Lichtblau,Bush Lets U.S. Spy on Callers Without Courts, N.Y.Times,Dec. 16, 2005, http://www.nytimes.com/2005/12/16/politics/16program.html?pagewanted=all.


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regulation and risked losing his job, Drake had reached the end of the line in his

complaints to government officials without any success and feared that the NSA

would continue its unlawful operations unless publicly exposed. Starting in

January 2006, the Sun published a series of articles highlighting NSAs

mismanagement in rejecting ThinThread, which included privacy protection

mechanisms for Americans, for the expensive, undeveloped Trailblazer with no

privacy protections. At no point did the government attempt to prevent the paper

from publishing the story as it had done with the 2005 Times story on the

warrantless wiretapping program.16

Nearly two years later on November 28, 2007, FBI agents raided Drakes

house, confiscated Drakes documents, computers, books and office files and

interrogated Drake for hours. A few months prior, on July 26, 2007, federal agents

simultaneously raided and searched the houses of Binney, Wiebe and Roark, in

retaliation for their filing of the supposedly confidential IG complaint. While the

agents did not arrest or detain Binney, Wiebe and Roark, all three were told they

were being criminally investigated.

Following the raid on Drakes house, Drake cooperated with investigators

and provided information about his contacts with the Sun and his computer

password to assure investigators that he was not the source for the warrantless

16 Mayer, supra note 13.


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wiretapping story in the Times. Investigators interrogated Drake on several

occasions for hours. Despite knowing that he was at risk of criminal prosecution,

Drake fully cooperated with the questioning and investigation. Justice Department

officials pressured Drake on multiple occasions to take a plea deal, threatening him

with spending the rest of his natural life behind bars if he didnt. Drake refused.

Two and a half years after agents raided Drakes house, the Department of

Justice indicted Drake in April 2010 on ten separate counts, five of which were

brought under the Espionage Act. Drake was the fourth case in U.S. history to be

charged under the Espionage Act for alleged mishandling of classified materials

the Pentagon Papers whistleblower and Plaintiff-Appellee in this case Daniel

Ellsberg was the first.

Tellingly, Drake was not charged with disclosing classified information even

though the government publicly argued that Drake endangered the lives of soldiers

and disclosed sensitive national security information to Americas enemies.17

Rather, Drake was charged under the Espionage Act with improper retention of

five allegedly classified documents.18

17 In the March 31, 2011 proceedings, the prosecutor stated: The NSA does not havebattleships, and they dont have satellite photographs, and they dont have troops, but, rather,what they do is they collect intelligence for the soldier in the field. So, when individuals go outand they harm that ability, our intelligence goes dark, and our soldier in the field gets harmed. . .. [I]ts simply incorrect to say that these documents are benign or insignificant. Proceedings ofMarch 31, 2011, United States v. Thomas Drake, No. RDB-10-181 (D. MD Mar. 31, 2011),available athttp://www.fas.org/sgp/jud/drake/033111-hearing.pdf at 75-6.18 Notably, many journalists retain unapproved documents as well as any individual with access


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Only at the eleventh hour, four days before the start of Drakes trial, did the

DOJ drop the 10-count felony indictment, including all the charges under the

Espionage Act. Drake pled to a minor misdemeanor of exceeding authorized use

of a computer and was sentenced to one year of probation and community service.

Where Drake initially faced up to 35 years in prison, he ultimately received none

because he was afforded his day in court.19

B.The Example of Jesselyn RadackDrakes case, in its implacability and overreach, is neither unique nor

isolated. Amicuss Director of National Security and Human Rights, Jesselyn

Radack, faced appalling treatment when she blew the whistle and publicly

disclosed her emails recommending against interrogating John Walker Lindh, the

American Taliban, without his lawyer. As a legal ethics advisor for the DOJ in

to websites like Wikileaks. President George W. Bushs former classification czar J. WilliamLeonard stated of Drakes case, Ive never seen a more deliberate and willful example ofgovernment officials improperly classifying a document. Following Drakes sentencing,Leonard filed a complaint against the NSA and DOJ seeking punishment for the officials whowrongfully classified the documents that Drake was charged for wrongfully retaining under theEspionage Act.19 Following the governments two and a half year investigation and prosecution of Drake, theformer top spokesman for the Justice Department, Matthew Miller, reversed his stance on theprosecution of Drake, stating "Drake did seem to be trying to expose actual government waste. Ithink the outcome of the case probably shows that it was an ill-considered choice forprosecution." Josh Gerstein,Ex-DOJ Spokesman Defends Leak Probes, Politico, Mar. 10, 2012,http://www.politico.com/blogs/under-the-radar/2012/03/exdoj-spokesman-defends-leak-probes-117014.html. Only two years earlier, Miller stated, The indictment was brought on the merits,and nothing else." Scott Shane, Obama Takes a Hard Line Against Leaks to Press, N.Y.Times,June 11, 2010, http://www.nytimes.com/2010/06/12/us/politics/12leak.html?pagewanted=all ).Such a reversal was the consequence of Drakes ability to challenge the evidence, a foreclosedright under military detention.


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Fly list. While Radack was not subsequently indicted, the disclosure of her own

emails cost her nearly everything else.21

III. Prosecutorial Overreach Against Whistleblowers Is A Harbinger ofWhat Whistleblowers Will Likely Face Under the NDAA

With 1021(b)(2)s undefined terms and lowered standards that divest an

individual of fundamental due process rights, Radack or Drake might have been

subjected to indefinite military detention if the NDAA was law at the time. The

difference between the Justice Departments label of Radack as a terrorist

sympathizer and 1021(b)(2)s terms of substantial or direct supporter of

terrorist groups goes to the very heart of Plaintiffs constitutional challenge. To

date, the government fails to provide guidance on prohibited conduct under

1021(b)(2), leaving whistleblowers like Radack and Drake greatly

compromised.22

Amicus is deeply concerned that 1021(b)(2)s vagueness will be employed

as yet another tool in the prosecutorial kit to punish and deter whistleblowers who

disclose information outside the formal channels. The Obama Administrations

words and deeds leave no doubt that the government will continue to use heavy-

21 Radack wrote a book about her decision to blow the whistle and the consequent retaliation.Jesselyn Radack, Traitor: The Whistleblower and the American Taliban (2012).22 Radack and Drake are only two of many whistleblowers who have faced drastic prosecutorialretaliation. Amicus has represented hundreds of whistleblowers who have experienced similarlyegregious treatment including demotions, forced mental health evaluations, personal threats,terminations, incarcerations even indefinite preventative detention, e.g. John Doe. See Doe v.Rumsfeld, 800 F. Supp. 2d 94, 100 (D.D.C. 2011) (RevdDoe v. Rumsfeld, 683 F.3d 390 (D.C.Cir. 2012)).


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handed tactics against whistleblowers. Indeed, President Obamas appointment to

head of the Justice Departments national security division, Lisa Monaco, testified

to Congress in May 2011 that it would be my priority to continue the aggressive

pursuit of [leak] investigations.23 Whether that will include the use of the NDAA

remains unclear. Laws which regulate persons or entities must give fair notice of

conduct that is forbidden or required, Fox, 132 S. Ct. at 2317. Without notice of

1021(b)(2)s definitional parameters, 1021(b)(2) chills both amicus, who must

ethically advise their clients that they may be subject to the NDAA should they

blow the whistle, and potential whistleblowers, resulting in dramatic externalities

for our democracy at large.

In the words of Judge Forrest: A key question throughout these

proceedings has been, however, precisely what the statute meanswhat and whose

activities it is meant to cover. That is no small question bandied about amongst

lawyers and a judge steeped in arcane questions of constitutional law; it is a

question of defining an individuals core liberties. The due process rights

guaranteed by the Fifth Amendment require that an individual understand what

conduct might subject him or her to criminal or civil penalties. Here, the stakes get

no higher: indefinite military detentionpotential detention during a war on

terrorism that is not expected to end in the foreseeable future, if ever. The

23 Shane, supra note 19.


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Constitution requires specificityand that specificity is absent from 1021(b)(2).

Order at 4.

CONCLUSION

For the foregoing reasons, amicus respectfully urges this Court to affirm the

District Courts permanent injunction and find 1021(b)(2) of the NDAA

unconstitutionally vague.

Dated: December 17, 2012 Respectfully submitted,

/s/ Reem Salahi

Reem Salahi

Hadsell Stormer Richardson &

Renick, LLP

128 N. Fair Oaks Ave.

Pasadena, CA 91103

T: (626) 585-9600

F: (626) 577-7079

[email protected]

Counsel forAmicus Curiae


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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 29(d)

and Fed. R. App. P. 32(a)(7)(B) because it contains 5,943 words. This brief

complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type

style requirements of Fed. R. App. P. 32(a)(6) because it was prepared in a

proportionally spaced typeface using Microsoft Word 2010, Times New Roman,

Size 14.

Dated: December 17, 2012 /s/ Reem SalahiReem Salahi

12-3176_hedges v obama_brief of amicus curiae

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