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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
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