Thomas Drake NSA whistleblower victory: government’s case implodes


U.S. Attorney General Eric Holder

The Obama administration’s prosecution of National Security Agency whistleblower Thomas Drake collapsed this week, days before his trial was set to begin. Prosecutors dropped felony charges under the Espionage Act; Drake pled to a single misdemeanor and will not go to prison. “This is a victory for national security whistleblowers and against corruption inside the intelligence agencies,” said my colleague Jesselyn Radack at the Government Accountability Project, which led the support campaign for Drake. “No public servant should face 35 years in prison for telling the truth.”

Thomas Drake

Congratulations to Tom Drake, winner of the 2011 Ridenhour Truth-Telling prize.

Climate Science Watch is a sponsored project of the Government Accountability Project. Sometimes we  turn our attention from the climate change problem when it is timely to take a position in support of whistleblowers on other urgent issues – especially when they are unjustly attacked for inconveniencing the powerful and the status quo instead of being recognized as essential public servants.     

Washington Post coverage June 10 (June 9 online) included this:

Ex-NSA official Thomas Drake to plead guilty to misdemeanor

By Ellen Nakashima

Days before his trial was set to begin, former National Security Agency manager and accused leaker Thomas A. Drake accepted a plea deal from the government Thursday that drops the charges in his indictment, absolves him of mishandling classified information and calls for no prison time.

In exchange, Drake, who was facing 35 years in prison if convicted of violating the Espionage Act, will plead guilty to a misdemeanor of exceeding authorized use of a computer. He will pay no fine, and the maximum probation time he can serve will be capped at one year.

“It’s an unambiguous victory for Drake,” said Jesselyn Radack, director of national security at the Government Accountability Project, who supported Drake on whistleblower issues. “The prosecution’s case imploded.”

The deal brings to a close a five-year ordeal for Drake, 54, who came under investigation in 2006 in leaking to the media and who was indicted in May 2010 on allegations of willful retention of “national defense” or classified information, obstruction of justice and making a false statement.

It also is a setback for the Obama administration’s effort to punish alleged leakers of national security secrets using a widely criticized World War I-era law.

“As a tool for prosecuting leakers, the Espionage Act is a broad sword where a scalpel would be far preferable,” said Stephen Vladeck, a constitutional law professor at American University. “It criminalizes to the same degree the wrongful retention of information that probably should never have been classified in the first place and the willful sale of state secrets to foreign intelligence agencies.”

Justice Department spokeswoman Laura Sweeney said she could not comment on a pending matter.

Drake, who is set to appear in U.S. District Court in Baltimore on Friday morning before Judge Richard Bennett to enter the plea, has asserted all along that he never passed classified information to a Baltimore Sun reporter who wrote stories exposing NSA mismanagement. …

New York Times coverage by Scott Shane (“Ex-N.S.A. Aide Gains Plea Deal in Leak Case; Setback to U.S.”) included this:

… The deal represented the almost complete collapse of the government’s effort to make an example of Mr. Drake, who was charged last year in a 10-count indictment that accused him of obstructing justice and lying to investigators. It is uncertain whether the outcome will influence the handling of three pending leak cases or others still under investigation.

The case against Mr. Drake is among five such prosecutions for disclosures to the news media brought since President Obama took office in 2009: one each against defendants from the National Security Agency, the C.I.A., the F.B.I., the military and the State Department. In the past, such prosecutions have been extremely rare — three or four in history, depending on how they are counted, and never more than one under any other president.

Officials say they have been prompted by a bipartisan belief in Congress and in both the George W. Bush and Obama administrations that leaks were getting out of hand.

U.S. National Security Agency

The flurry of criminal cases has led to both praise and criticism for Mr. Obama, who entered office promising unprecedented transparency but in less than three years in office has far outdone the security-minded Bush administration in pursuing leaks. …

Jesselyn A. Radack, a lawyer for the nonprofit Government Accountability Project who had rallied support for Mr. Drake, hailed the outcome.

“This is a victory for national security whistle-blowers and against corruption inside the intelligence agencies,” she said. “No public servant should face 35 years in prison for telling the truth.” …

Additional coverage:

Wall Street Journal: “Plea Deal Ends Leak Case Against Former Official”

Baltimore Sun: “Espionage charges dropped against ex-NSA manager”

Government Accountability Project news release (underlining added):

Drake Accepts Misdemeanor Plea; No Jail Time or Fine

June 09, 2011

Huge Victory for National Security Whistleblowers

(Washington, D.C.) – The Government Accountability Project (GAP) has learned that client Thomas Drake has agreed to a plea bargain arrangement on the charges brought against him by the federal government. While Drake was facing 10 felony counts and 35 years in jail, this settlement agreement stipulates no jail time or fines shall be imposed on him. In return, Drake will plead guilty to a mere misdemeanor. Drake appears publicly in court tomorrow to enter his plea.

The action taken against Drake by the Department of Justice was widely seen as a bellwether case for the current crop of the Obama administration’s prosecutions under the Espionage Act against national security and intelligence whistleblowers. Today’s news is an absolute victory for whistleblowers.

GAP Homeland Security and Human Rights Director Jesselyn Radack commented, “This is a victory for national security whistleblowers and against corruption inside our intelligence agencies. The prosecution’s case was built on sand and crumbled under the weight of the truth.

“Tom Drake went through all proper and legal channels. His experience proves that, presently, there is no safe way to draw attention to wrongdoing at intelligence agencies. The intelligence community cannot keep using a broken classification system to escape responsibility for its internal corruption and lawbreaking.”

GAP represents Drake on whistleblower issues. He has a separate criminal defense team.

Radack continued, “No public servant should face 35 years in prison for telling the truth. The prosecution’s case imploded in the face of numerous negative rulings and huge public support for Tom Drake. This is incontrovertible proof that the Espionage Act should not and cannot be used to silence whistleblowers.”

Regarding the Obama administration’s ongoing prosecution of national security whistleblowers, Radack stated “Whistleblowers are not spies. The Espionage Act is a particularly heinous tool that should never be used to cover up government wrongdoing and punish whistleblowers that expose it. This sends a message to the Justice Department to abandon its perverted strategy of prosecuting whistleblowers under the Espionage Act.”

Tom Drake Background

Drake is a former National Security Agency (NSA) employee who is being prosecuted under the Espionage Act for retaining, not leaking, classified information about a data collection program that was costly, threatening to Americans’ privacy rights, and wholly undeveloped, despite the availability of a cost-effective, functional alternative that respected Americans’ privacy. He did everything by the book, raising concerns through official channels first — including senior NSA management, the Defense Department’s inspector general, and Congress. His concerns were ignored. Drake started, legally, communicating with a reporter — never sharing any classified information whatsoever. A series of articles exposed this billion-dollar affront to privacy rights. For more information, see GAP’s Tom Drake page at

Must-read article in The New Yorker by Jane Mayer: “The Secret Sharer: Is Thomas Drake an Enemy of the State?”

From CBS 60 Minutes story on Drake, May 22, 2011 (unfortunately, CBS appears to have taken video from this program down from their website already):

“Why do you think you were charged under the Espionage Act? That’s pretty rare,” Pelley pointed out.

“To send a chilling message,” Drake asked.

“To whom?” Pelley asked.

“To other whistleblowers, to others in the government, not to speak up or speak out. Do not tell truth to power. We’ll hammer you,” Drake said.

Earlier posts:

National Security Agency whistleblower Thomas Drake appearing on CBS 60 Minutes May 22 in his first television interview

Thomas Drake, 2011 recipient of The Ridenhour Truth-Telling Prize

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8 Responses to Thomas Drake NSA whistleblower victory: government’s case implodes

  1. Anne says:

    Oh the IRONY!

    Consider this angle, reported by The Nation:

    Sterling’s case bears another important similarity with Drake’s: both have been prosecuted by DOJ lawyer William Welch. Welch is best known for heading the DOJ team whose corruption case against Ted Stevens got thrown out for prosecutorial misconduct. Since 2009, he has been the Obama Administration’s point person on pursuing whistleblowers. Welch seems to be exercising the same poor judgment he did on the Stevens case, as when he withheld evidence for ten months that one of the purportedly classified documents Drake was accused of keeping had been marked as unclassified. Perhaps the embarrassing outcome in the Drake case will lead DOJ to rethink Welch’s role in these controversial cases.

    So — the very kind of ineptitude and sloppiness, usually supplemented by ego, pointed out by Drake in the first place, is now responsible for the case against him falling apart because it has no teeth in it. Sounds like a circular firing squad to me. Ready, aim…


  2. Fritz b. says:

    Thank you Thomas Drake for your courage. You are entirely deserving of this prize. God bless.

    Fritz B. ex-USAF ex-NSA

  3. Bill Vogt says:

    Just saw story of Thomas Drave vs NSA on 60 Minutes.
    Thank you Thomas Drake!

    B.V., ex Naval Counterinelligence, ex Air Force Intelligence Service.

  4. William C. Gau III, AAS, BS, & MA says:

    Thomas Drake:
    I wish to commend you for your bravery in upholding your oath to defend and protect the Constitution of the United States of America. You are an “Oathkeeper” in the truest sense of the word. May God bless and keep you and yours. There are many Americans who yearn for the truth these days, especially when it comes to the intentions of government. I bid you a fond farewell, and a hearty “Semper Fi,” sir.–Wm. C. Gau III

  5. Evelyn Hamilton says:

    Thank you for trying to make our government do the right thing. I am so sorry you had to go through this ordeal for five years. Instead of congratulating you for trying to bring a change in the ineptitude (and worse) in the Federal government, you had to be attacked. I hope you have a brighter future.

  6. Carol Boos says:

    Congratulations Thomas, I’ve been following the case and just read that the government’s case fell apart. Wonderful news for upcoming whistle blowers, God bless them one and all, especially you.

  7. DLK says:

    But, what about your position? You know, the one that you are obviously the most qualified person to hold said position. They can’t and will not give that back to you will they? I am very aware of how destructive this all must have been , your courage and fortitude are noted.

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