CIA Refuses to Turn Over Torture Tape Library

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The CIA has been making an inventory of its torture tape library. It is supposed to hand over an inventory of the library for the judge to review next Thursday, March 26, including:

  • A list of any summaries or transcripts describing the destroyed records’ content.
  • A list of any witnesses who may have viewed the videotapes or retained custody before their destruction.

Only, the CIA says the ACLU can’t have any of these lists. 

Here’s the letter DOJ gave Judge Hellerstein explaining the CIA’s reasons why ACLU can’t have the torture library.

The CIA has generated the lists contemplated by Points 2 and 3 of the Order. As instructed by the Court, the CIA will provide the unredacted lists for the Court’s ex parte, in camera review on March 26, 2009 at 2:30 p.m.  There is no meaningful non-exempt information from the list of documents covered by Point 2, which identifies roughly 3,000 documents, including cables, memoranda, notes and emails, that can be produced at this time. All of the information on the list of witnesses covered by Point 3 is either classified or otherwise protected by statute. Accordingly, the CIA is not producing either list to Plaintiffs in redacted form.

In spite of the fact they’ve given us a hugely redacted copy of the CIA OIG report on torture and a torture tape inventory itself, they claim they can’t reveal any of the 3,000 documents discussing the torture tapes. None of them. We’ll see whether Judge Hellerstein agrees with them…

What I’m most fascinated by, though, is the explanation that CIA can’t turn over the list of those who watched or retained the torture tapes because the list "is either classified or otherwise protected by statute." That suggests they’re invoking FOIA exemptions other than classification to withhold the identities of people who watched those tapes.

Take a look at this list of FOIA exemptions, and you’ll see why that may be rather interesting. For example, trade secrets might protect the identities of contractors who had viewed or retained the torture tapes. There’s the physical safety exemption that they earlier cited in regards to their destruction of the tapes–but if they invoked this exemption, it might reveal that they’re worried about the identities of non-CIA employees being released. There are law enforcement exemptions they might invoke if DOJ had reviewed these torture tapes in 2004 in response to a criminal referral by CIA’s Read more →

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Obama Becomes Bush As We Wait For Walker’s Ruling

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graphic by politicalbase

graphic by politicalbase

As you may recall, since February 27, we have been waiting for a decision, of some sort, from Vaughn Walker in the al-Haramain and Consolidated Cases litigation in NDCA. The decision is not in yet; however, there is a new filing in the Consolidated Cases further ingraining the oneness of Obama with Bush in the litigation.

There really wasn’t much doubt about the oneness with the exception of the nuance Marcy noted as to Obama shifting slightly away from privilege in favor of the merits. Slightly is the key word there; the overall tenor of the Obama position in the consolidated wiretapping cases is disgustingly identical to the duplicitous and wrongheaded state secrets policy of Bush/Cheney.

The new filing is by the government, by and through the Obama DOJ, and is a motion to dismiss in a recently consolidated case, McMurray v. Verizon Communications. Interestingly, McMurray was already a plaintiff from the start in the Consolidated Cases, but attempted to file a separate action in July of 2008 in the Southern District of New York challenging the application of Section 802 to their original action that had already been consolidated. Section 802 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”), 50 U.S.C.§ 1885a(a) provides that a civil action “may not lie or be maintained” against electronic communication services providers alleged to have provided assistance to an element of the intelligence community, and “shall be promptly dismissed” if the Attorney General of the United States certifies that one of several circumstances exist with respect to the alleged assistance.

Now you may ask yourself why did McMurray file this challenge in SDNY instead of in Vaughn Walker’s court where his case, and all the others, already was lodged? Excellent question, and one I have no answer for since it was bound to be transferred out to Walker’s court with the rest of the Consolidated Cases including, notably, McMurray’s. Of course, the better question is how did all the cases ever get consolidated in the 9th to start with, and I will get back to that later.

Now, with respect to the motion to dismiss filed Friday the 13th, there is one new wrinkle regarding a takings clause claim, mostly, however, it is notable for the fact that it continues the same crappy and duplicitous pleading style that was so prevalent under Bush. It is yet one more (as if more was needed at this point) indication that Barack Obama has completely morphed into George Bush and Dick Cheney in terms of craven support for government intrusion into the privacy of the citizenry, and the ability to conceal the Constitutionally infirm activity through the unitary and unreviewable imposition of state secrets doctrine.

These counts largely repeat claims plaintiffs, including the McMurray plaintiffs, made in response to the Government’s prior dispositive motion, and fail for the reasons set forth at length in the Government’s brief, which are incorporated in full by reference herein.

Same old song, same old dance. Barack Obama avowed he was a man that believed in the sanctity of the Constitution, the rights of citizens and in transparency of the Executive. Obama would be the agent of change from Bush/Cheney. Except, now that he has taken office, that is all no longer operative. As Glenn Geenwald has noted, the Obama Administration has proven itself just as cravenly addicted to secrecy, imperial executive power and willingness to strip its citizens of their rights under the Constitution, and its Bill of Rights, as Bush and Cheney.

As to the Takings Clause violation allegation that the government claims is newfangled, I believe that is new only to McMurray, other plaintiffs in the Consolidated Cases have at least noticed the claim in their pleadings to the best of my knowledge, but this is a decent opportunity to discuss it a little. I first mentioned the theory well over a year ago in the indemnification post:

In addition to the foregoing, there is an extremely good case to be made that the granting of retroactive immunity to the telcos would comprise an improper and unjust taking of the existing plaintiffs’ right to compensation under the Fifth Amendment and would, therefore, be in direct violation of the Constitution. I don’t want to belabor this thought; just put it out there so that it is considered in the mix. Hey, "Teh Google" is a most marvelous thing; here is an absolutely outstanding discussion of this issue by Professor Anthony J. Sebok of the Cardozo School of Law.

In a nutshell, the takings clause is contained in the Fifth Amendment

…nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

and is what protects citizens from having their property interests seized by the government without due process and just compensation. It is what lies at the root of eminent domain cases like the notorious Kelo v. City of New London decision. There is some intellectual merit to the Takings Clause argument, but not a lot of practical hope for success on it. There are far too many ways around the Constitutional provision, several of which the government picked up on in their motion to dismiss. If you are interested in a general primer in how the Takings Clause could theoretically apply to the FISA situation, see the Sebok article referenced in the quote above.

What I find interesting (with a little prodding by Marcy) is that John Yoo and the Bush/Cheney regime planned on being confronted with Takings Clause complaints by citizens when they declared war on the Constitution. Yoo blithely dispensed with the applicability of the takings clause, indeed the entire Bill of Rights effectively, to the President’s military program (and remember the wiretapping was run militarily through the NSA) via a footnote in his infamous March 2003 Torture Memo. As Greenwald described Yoo’s execrable arguments:

The President’s power to use military force domestically in violation of the Bill of Rights applies equally even if the actions are ordered against American citizens on U.S. soil ….. The President, when using military force against American citizens on U.S. soil, is "free from the constraints" not only of the Fourth Amendment, but also of other core guarantees of the Bill of Rights — including First Amendment liberties, Due Process rights, and the takings clause ….. If this isn’t the unadorned face of warped authoritarian extremism, what is?

No kidding. The galling part is to compare and contrast what Yoo tried to do in his sweeping blithe evisceration of the Constitution and Bill of Rights, substantially via a freaking footnote, with a detailed lawyerly dissertation on specific case precedence and statutory history; the merits if you will. See, the Takings Clause can be worked around through proper legal argument, or at least a proper argument therefore made; that is proved by the government’s response in the March 13, 2009 motion to dismiss. But Yoo, Bush and Cheney wanted none of the legal niceties, they wanted to seize supreme unadulterated power and went about doing so in blanket fashion. Now they are using the bludgeon of state secrets to cover the power grab, even under the supposedly enlightened Obama. Different name, but the same totalitarian bludgeon for the same unitary executive power grab.

Oh yes, back to the interesting point about why the cases may have been consolidated in the 9th Circuit in the first place. It always has perplexed me as to how, and why, in the world the government ever allowed all these critical FISA/Fourth Amendment cases to be consolidated in the 9th, the most liberal and rebel appellate circuit of all. If there is any circuit you would think the government would not want to be stuck in, it is the 9th. Yet there they all are, consolidated in Vaughn Walker’s San Francisco courtroom and subject to appeals to panels of the notorious Ninth.

Marcy previously discussed the September Read more →

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Obama’s Signing Statement Disappears Whistleblowers

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When I suggested the other day that Obama’s memo on signing statements was actually very troublesome–in that there’s no transparency for which of Bush’s signing statements Obama plans to keep and in that we never learn which of those Bush relied on to break the law–a few people suggested I was being cynical. Really, the most common interpretation of the memo went, the memo was a sign of change we can believe in, a new willingness to be bound by law.

As it turns out, the memo appears to have been released (almost two months into Obama’s term, after all) to lay the groundwork for Obama’s first signing statement.

Charlie Savage (who wrote the book on this stuff) lays out the contents–mostly statements saying Obama refuses to spend money with the oversight from Congress they’ve demanded.  

One of the budget bill’s provisions that Mr. Obama said he could circumvent concerns United Nations peacekeeping missions. It says money may not be spent on any such mission if it entails putting United States troops under a foreign commander, unless Mr. Obama’s military advisers so recommend.

“This provision,” Mr. Obama wrote, “raises constitutional concerns by constraining my choice of particular persons to perform specific command functions in military missions, by conditioning the exercise of my authority as commander in chief on the recommendations of subordinates within the military chain of command, and by constraining my diplomatic negotiating authority.”

[snip]

But a majority of the challenged provisions are those allowing money to be reallocated to a different program only with the approval of a Congressional committee. Mr. Obama called the provisions “impermissible forms of legislative aggrandizement” and declared that while executive-branch officials would notify lawmakers of any reallocation, “spending decisions shall not be treated as dependent on the approval of Congressional committees.”

So much for power of the purse.

The provision I’m most worried about, however, is one on whistleblowers. You see, the President who has promised transparency, apparently doesn’t want transparency to Congress when an executive agency fucks up.

He also raised concerns about a section that establishes whistle-blower protections for federal employees who give information to Congress.

“I do not interpret this provision,” he wrote, “to detract from my authority to direct the heads of executive departments to supervise, control and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.”

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Cheney’s Assassination Squads

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You know how Sy Hersh promised bombshells after Bush left office? Well this seems like his first installment–though it also sounds like he’s not ready to put this in print yet. (h/t RawStory)

At a “Great Conversations” event at the University of Minnesota last night, legendary investigative reporter Seymour Hersh may have made a little more news than he intended by talking about new alleged instances of domestic spying by the CIA, and about an ongoing covert military operation that he called an “executive assassination ring.”

Hersh spoke with great confidence about these findings from his current reporting, which he hasn’t written about yet.

In an email exchange afterward, Hersh said that his statements were “an honest response to a question” from the event’s moderator, U of M Political Scientist Larry Jacobs and “not something I wanted to dwell about in public.”

[snip]

“Yuh. After 9/11, I haven’t written about this yet, but the Central Intelligence Agency was very deeply involved in domestic activities against people they thought to be enemies of the state. Without any legal authority for it. They haven’t been called on it yet. That does happen.

"Right now, today, there was a story in the New York Times that if you read it carefully mentioned something known as the Joint Special Operations Command — JSOC it’s called. It is a special wing of our special operations community that is set up independently. They do not report to anybody, except in the Bush-Cheney days, they reported directly to the Cheney office. They did not report to the chairman of the joint chiefs of staff or to Mr. [Robert] Gates, the secretary of defense. They reported directly to him. …

"Congress has no oversight of it. It’s an executive assassination ring essentially, and it’s been going on and on and on. Just today in the Times there was a story that its leaders, a three star admiral named [William H.] McRaven, ordered a stop to it because there were so many collateral deaths.

"Under President Bush’s authority, they’ve been going into countries, not talking to the ambassador or the CIA station chief, and finding people on a list and executing them and leaving. That’s been going on, in the name of all of us. [emphasis original]

Mind you, I think this refers to two different things: Read more →

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DiFi’s Whitewash

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Last week, when I put you all to work (while I was on vacation–sorry) to find out whether your members of Congress supported some kind of investigation into Bush Administration crimes, fatster reported back DiFi’s ambivalence about any such investigation.

According to the Washington staffer who answered my call just now, DIFI has not yet commented on what her position will be. Imagine that.

DiFi’s support or not is critically important since–as the new Chair of the Senate Intelligence Committee–she’ll have significant say about whether or not we investigate what the Intelligence Community did under Bush.

Well, today the largest paper in DiFi’s state reports what appears to be DiFi’s slowly evolving response: an investigation that the American people don’t get to see. Otherwise known as a whitewash.

The Senate Intelligence Committee is preparing to launch an investigation of the CIA’s detention and interrogation programs under President George W. Bush, setting the stage for a sweeping examination of some of most secretive and controversial operations in recent agency history.

The inquiry is aimed at uncovering new information on the origins of the programs as well as scrutinizing how they were executed — including the conditions at clandestine CIA prison sites and the interrogation regimens used to break Al Qaeda suspects, according to Senate aides familiar with the investigation plans.

Officials said the inquiry was not designed to determine whether CIA officials broke laws. "The purpose here is to do fact-finding in order to learn lessons from the programs and see if there are recommendations to be made for detention and interrogations in the future," said a senior Senate aide, who like others described the plan on condition of anonymity because it had not been made public.

[snip]

The senior aide said that the committee had no short-term plans to hold public hearings, and that it was not clear whether the panel would release its final report to the public.

[snip]

Senate aides declined to say whether the committee would seek new testimony from former CIA Director George J. Tenet or other former top officials who were involved in the creation and management of the programs.

The Senate investigation will examine whether the detention and interrogation operations were carried out in ways that were consistent with the authorities and instructions issued in the aftermath of the Sept. 11 attacks, officials said.

The panel will also look at whether lawmakers were kept fully informed. Read more →

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The AIPAC Prosecution Suffers A Crippling Blow

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images5.thumbnail.jpegMost of you know about the AIPAC criminal case that has been simmering below the main media radar since it was filed in May, 2005. In a nutshell, the indictment alleges that Lawrence Franklin, a DOD/Pentagon official working in Defense Secretary Rumsfeld’s office (with everyone’s favorite public servants Doug Feith and Paul Wolfowitz), passed top-secret information relating to Iran and Iraq to Steve Rosen, AIPAC’s then-policy director, and Keith Weissman, a senior Iran analyst with AIPAC. Franklin pled guilty and was sentenced in January, 2006.

In the three, count em three, years since Franklin’s plea, the government has pressed on with the prosecution of Franklin’s co-defendants Rosen and Weissman. That may be nearing an end though with a critical decision issued by the trial judge in the case, Judge Thomas Ellis of the Eastern District of Virginia (EDVA) on February 17. The opinion is not only important for the AIPAC case, but for many, if not all, of the secrecy cases that are currently in play in Federal courts across the country.

A little background is in order. The defendants, Rosen and Weissman, sought to introduce the expert testimony of Bill Leonard, a retired United States government official with substantial experience and expertise in the field of information classification, as part of their defense at trial. Leonard, who retired last year, was formerly the director of the government’s Information Security Office responsible for oversight of the entire U.S. classification system.

Leonard, from all appearances, was willing to testify, however, fearing prosecution himself, he insisted on a subpoena and then personally moved to quash the subpoena on the ground that his testimony might be barred by 18 USC 207, which restricts the activities of former executive branch officers and employees. The government, not wanting to be crucified by their own former guy, through the Department of Justice joined in Leonard’s motion to quash. Defendants Rosen and Weissman’s attorneys, obviously, opposed the motion to quash and argued that section 207 did not preclude Leonard’s testimony, and asserted that the court should enter an order directing Leonard to give said testimony at trial. Effectively, Leonard was seeking cover from the court so he could not get jerked around by the government for being wiling to testify. Very smart move by a very smart man, especially since the Bush/Cheney DOJ prosecutors were threatening that he might be liable for up to a year in jail if he testified.

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Susan Collins: I Stand With Crazy Pete the Twit-Leaker in Opposing Intelligence Whistleblowers

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I’ve been covering the misplaced priorities of Crazy Pete Hoekstra–who doesn’t want federal Intelligence Community employees to have a way of alerting Congress to fraud and wrong-doing without exposing classified information and/or losing their jobs, but who is happy to Twitter sensitive information about his and Minority Leader Boehner’s travels in Baghdad.

It seems that Susan Collins has the same misplaced priorities. She single-handedly axed the House-backed provision to include whistleblower protection in the stimulus package–and with it, prevented a key means of making sure taxpayer funds were spent wisely.

But, according to a person following the bill closely, Collins used today’s conference committee to drastically water down the measure, citing national security concerns as the reason for her opposition. In the end, the protections were so weakened that House negotiators balked, and the result was that the entire amendment was removed.

According to the person following the bill, Collins was the "central roadblock" to passing the protections.

To make matter worse, Collins is the ranking Republican on the Senate Homeland Security and Government Affairs commitee, which, as an oversight committee, might be expected to see its role as protecting whistleblowers. She also sits on the Senate appropriations committee, giving her a strong position from which to wield influence during today’s negotiations.

Though Senate leader Harry Reid supported the protections, said the source, he wasn’t willing to strong-arm Collins on the issue, given her central role in negotiations over the stimulus bill as a whole. [my emphasis]

I guess that about sums up the state of Republican approaches to both Homeland Security and Appropriations that they would work hard to deprive taxpayers of the protection from fraud and wrong-doing they need.  

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BREAKING: Obama Continues Bush Policy On State Secrets

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Earlier this morning, Looseheadprop wrote about the case of Binyam Mohamed, the British subject tortured at the hands of the United States at Gitmo, including having his genitals carved selectively with a scalpel. The Mohamed case is of critical significance for a variety of reasons, not the least of which is the fact that there was an oral argument in the Ninth Circuit Court of Appeals in San Francisco this morning that was to provide a crucial test of the new Obama Administration’s willingness to continue the Bush policy of concealing torture, wiretapping and other crimes by the assertion of the state secrets privilege.

From an excellent article by Daphne Eviatar at the Washington Independent at the end of January:

President Obama’s sweeping reversals of torture and state secret policies are about to face an early test.
…
The test of those commitments will come soon in key court cases involving CIA “black sites” and torture that the Bush administration had quashed by claiming they would reveal state secrets and endanger national security. Legal experts say that the Bush Department of Justice used whatʼs known as the “state secrets privilege” – created originally as a narrow evidentiary privilege for sensitive national security information — as a broad shield to protect the government from exposure of its own misconduct.

One such case, dealing with the gruesome realities of the CIAʼs so-called “extraordinary rendition” program, is scheduled for oral argument before a federal appeals court in early February. The position the Obama administration takes in this case may be the first major test of its new policies on transparency in government.

Mohamed v. Jeppesen Dataplan, Inc. involves five victims of CIA rendition, or “torture by proxy,” as itʼs also known. Abducted abroad, the men were flown by the CIA to cooperating countries whose agents interrogated them under torture. Because federal officials are usually immune from lawsuits, the men later sued the private aviation data company, Jeppesen — a subsidiary of Boeing, one of the largest federal defense contractors — that
knowingly provided the flight plans and other assistance necessary for the CIA to carry out its clandestine operations.

Well, the news being reported out of Courtroom One in San Francisco is not good and indicates that the Obama Administration has continued the walk of the oppressive shoes of the Bush/Cheney regime and has formally continued the assertion of state secrets.

The best hope for transparency on Read more →

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Crazy Pete Hoekstra’s Misplaced Priorities on Keeping Secrets

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As I pointed out last week, Crazy Pete Hoekstra, the ranking member of the House Intelligence Committee, says we can’t have whistleblower protection included in the stimulus package because it would compromise our national security if intelligence community whistleblowers could safely tell Congress (in a classified setting) about fraud and wrong-doing.

After which, Crazy Pete promptly went to Iraq and posted the classified details of his and John Boehner’s trip to his Twitter account.

A delegation led by House Minority Leader John A. Boehner , R-Ohio, arrived in Iraq earlier today, and because of Rep. Peter Hoekstra , R-Mich., the entire world — or at least Twitter.com readers—now know they’re there.

“Just landed in Baghdad,” messaged Hoekstra, a former chairman of the Intelligence panel and now the ranking member, who is routinely entrusted to keep some of the nation’s most closely guarded secrets.

Before the delegation left Washington, they were advised to keep the trip to themselves for security reasons. A few media outlets, including Congressional Quarterly, learned about it, but agreed not to disclose anything until the delegation had left Iraq.

Nobody expected, though, that a lawmaker with such an extensive national security background would be the first to break the silence. And in such a big way.

Not only did Hoekstra reveal the existence of the lawmakers’ trip, but included details about their itinerary in updates posted every few hours on his Twitter page, until he suddenly stopped, for some reason, on Friday morning.

See, we can’t have whistleblowers share secrets in classified settings. Because that takes all the fun, for members of the Gang of Eight, out of sharing secrets via Twitter.

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WaPo: You Should Give the $800 Billion Away with No Oversight

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The WaPo is joining Crazy Pete Hoekstra in his opposition to having whistleblower protection in the stimulus bill. To oppose whistleblower protection, they’re reduced to poo-pooing the notion that it’s sort of important to have oversight when you give $800 billion in government funds out.

The $800 billion stimulus package making its way through Congress is supposed to include measures to jump-start the economy — extension of unemployment benefits and food stamps, infrastructure programs to create jobs. But whistleblower protections? 

[snip]

But attaching the bill to the stimulus package under the pretext that stronger whistleblower protections will enhance fiscal accountability is disingenuous.

Uh, yeah. The last eight years of widespread fraud really proves that protecting whistleblowers before you give away billions and billions is just a "pretext."

Right.

But what the WaPo is really worried about is the same thing Crazy Pete is worried about: if you give whistleblower protection to federal employees, that means you give whistleblower protection to federal intelligence employees. And, the WaPo argues, you can’t have federal intelligence employees revealing fraud and wrong-doing if the President doesn’t want them to.

The measure extends such protections to employees who work in the intelligence arena, including those at the FBI, and would give such employees the unilateral right to disclose to congressional overseers classified material. The measure also calls for federal court review of executive branch decisions to revoke an employee’s security clearance. 

[snip]

The executive branch is constitutionally charged with protecting and controlling classified information. A legislative attempt to override the executive could very well be unconstitutional. It is, in any event, irresponsible to condone and essentially immunize an employee’s unilateral breach.

The Justice Department, as long ago as the Clinton administration, has vigorously opposed expanding whistleblower protections to national security employees.

Now, set aside the question of whether, at a time when we’re privatizing intelligence functions on a massive scale, it would be a good thing to make sure intelligence professionals have some means to report wrong-doing. Put aside the question of whether or not you’d like someone to be able blow the whistle if all that data the government has collected on you were used in improper ways.

Consider the fact that this is a newspaper attacking whistleblower protections.

There are two ways to think about this phenomenon, a newspaper attacking whistleblower protections. Perhaps this is just an indication that the WaPo no longer cares about exposing wrong-doing. Read more →

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