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June 20, 2011

Commodore Esek Hopkins, central figure in the story of the first American whistleblower law.

The trial of Thomas Drake, ex-manager at the National Security Agency and accused classified information leaker, ended before it ever began. Two weeks ago, Drake accepted a plea deal with the government. The prosecution’s case fell apart when the judge ruled that the government could not keep certain references to classified technology secret because doing so would infringe upon Drake’s right to mount a defense. Under the plea bargain, Drake pleads guilty to a misdemeanor of exceeding authorized use of a computer and faces no prison time or fines and could be placed on probation for no more than a year.

With whistleblowers receiving a great deal of attention recently (Thomas Drake, Bradley Manning, 40th Anniversary of the publishing of the Pentagon Papers), the New York Times printed a fascinating article on the first American whistleblower protection law. In 1777, a group of Continental sailors and marines revealed to Congress the abuse of British prisoners by an influential commander in the Continental Navy, Esek Hopkins. The responsive legislation stated that it was the duty of U.S. servicemen and “inhabitants” to inform proper authorities of “misconduct, fraud or misdemeanors.” Congress also paid the legal fees for the servicemen caught up in the lawsuit brought by the suspended commander. The men were acquitted without the need to obtain documents through FOIA to defend themselves or the invocation of government secrecy privileges, even though the country was at war, and despite the fact that the case exposed the mistreatment of prisoners under military custody.

Last week at a hearing on federal spending transparency by the House Oversight Committee, the topic of cuts to the government openness budget was brought forward. Ranking member Rep. Elijah Cummings entered a letter signed by over 30 transparency groups supporting the restoration of funding for the E-Gov Fund into the record. The cut to the E-Gov Fund was discussed in a previous FRINFORMSUM. Chairman of the Oversight Committee, Rep. Darrell Issa, also voiced his preference that the E-Gov Fund is kept at its previous level.

An attorney representing a client detained at Guantanamo Bay seeks to publicly use Wikileaks documents. Last week, the government filed a response in a federal court opposing the use of these documents. The formal response notes that attorney David Remes could view the documents, but could not publicly download, print, copy, disseminate, or discuss the documents. The government argues that the authenticity of the documents has not been confirmed. Government attorneys wrote that the government would not confirm if documents were genuine “to avoid the risk of even greater harm to national security than may have already been caused by Wikileaks’ disclosures.”

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