No Comment — June 10, 2011, 11:56 am

Prosecution of NSA Whistleblower Collapses

The Obama Administration’s highly touted effort to prosecute Thomas A. Drake, a former senior National Security Agency official, for violations of the Espionage Act due to his disclosure of pervasive fraud, waste, and abuse connected with a $1-billion surveillance-technology contract has collapsed in a federal court in Baltimore. In a plea-bargain arrangement, Drake agreed to plead guilty to a misdemeanor count of misuse of a government computer, while prosecutors agreed not to push for jail time. The Espionage Act charges that formed the core of the prosecution are being withdrawn.

Drake, the winner of this year’s Ridenhour Prize for Truth-Telling, for the exact actions that led to his prosecution, allegedly disclosed to the Baltimore Sun‘s Siobhan Gorman evidence of gross corruption and ineptitude in the management of the “Trailblazer” data management contract by the NSA. Gorman’s articles on this subject, which contributed to the unraveling of the NSA’s Bush-authorized program of warrantless domestic surveillance, won her the prestigious Society of Professional Journalists Sigma Delta Chi award for Washington correspondence.

The Drake prosecution is one of five cases in which a U.S. government has invoked the Espionage Act to punish whistleblowers. The Nixon Administration set the precedent when it went after Daniel Ellsberg and Anthony Russo in 1971, an effort that failed when the courts concluded that the federal government had engaged in seriously abusive conduct, including numerous criminal acts, in pursuing the case. A more recent prosecution, the Bush Administration’s efforts against two former AIPAC employees, fell apart in the face of a federal judge who was skeptical about the use of the Espionage Act in such circumstances. In the Drake case, Judge Richard D. Bennett similarly ruled that the prosecution would have to share evidence concerning the supposedly classified programs with the defense and the jury, which led the prosecution to drop the charges.

Lanny Breuer, head of the Justice Department’s Criminal Division, told the New Yorker‘s Jane Mayer that the prosecution was “almost obligatory” (even though it was only the fifth such prosecution in history) because “you don’t get to break the law and disclose classified information just because you want to.” He added, “Politics should play no role in it whatsoever.”

In fact, every administration in modern history has been plagued by leakers and whistleblowers, but only two (those of Richard Nixon and George W. Bush) have chosen to deal with them in the heavy-handed way that Breuer has advocated. Sometimes leaks are politically motivated—coming from disloyal civil servants who want to see the administration wounded or compromised politically. But at least as frequently, leaks are motivated by concerns about lawless conduct, abuse, fraud and waste. The leaker understands that internal complaints regularly fall on deaf ears and that congressional oversight is often weak or politically undermined. He likely feels that only the public attention that follows exposure in the media will yield results. Drake’s motives are unambiguous. He has a strong record of public service, has received important awards, and is widely viewed as a patriotic, conscientious whistleblower whose actions embarrassed political figures but did not harm national security.

Breuer’s remarks and the Justice Department’s management of the case therefore raise some serious questions. In point of fact, confidential and classified information is leaked every day inside the Beltway, and it rarely has legal repercussion. The truth is that criminal investigations and prosecutions follow almost solely for political reasons. When Barack Obama’s closest intimates disclose highly classified information regarding military operations in Afghanistan to Bob Woodward, for publication in Obama’s Wars, or when John O. Brennan dangles tantalizing morsels before the media about Anwar al-Awlaki and the White House’s decision to authorize the use of lethal force against him, these disclosures, though unauthorized, serve a momentary political purpose of the government, and are thus immune from any thought of prosecution. The same can be said of the leaks of Alberto Gonzales, Richard Shelby, Pete Hoeckstra, and Dick Cheney.

By contrast, Drake’s disclosures embarrassed senior figures at the NSA. Similarly, those of ex-CIA agent Jeffrey A. Sterling disclosed a wildly inept CIA caper in Iran. It was predictable that senior figures in each agency would press for prosecutions, claiming national security concerns as their rationale even as experienced and astute observers see instead a skillful effort at political damage control.

The Justice Department’s use of the Espionage Act to menace legitimate whistleblowers raises troubling questions about its ability to make reasoned prosecutorial judgments in this area. Its actions reveal contempt for whistleblowers and the statutes Congress enacted to protect them, and a posture of servility towards the government’s national security apparatus. The department’s failure to investigate fraud and abuse in this sector, and its decision to lavish precious resources on the persecution of those who spotlight corruption suggests that its clientism has supplanted its fidelity to the Constitution and laws.

But its ability to salvage a misdemeanor plea from the collapsed Drake case also demonstrates the tremendous power that it wields—a power sufficient to compel an innocent and righteous man to plead guilty to a charge of which he is obviously innocent. The judge should reject the plea bargain and dismiss the case. And the Justice Department should take this as an opportunity to reassess its failed strategies in the troubled area where civil liberties and national security interests converge.

Share
Single Page

More from Scott Horton:

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

From the April 2015 issue

Company Men

Torture, treachery, and the CIA

Six Questions October 18, 2014, 8:00 pm

The APA Grapples with Its Torture Demons: Six Questions for Nathaniel Raymond

Nathaniel Raymond on CIA interrogation techniques.

Get access to 165 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

September 2015

Weed Whackers

= Subscribers only.
Sign in here.
Subscribe here.

Tremendous Machine

= Subscribers only.
Sign in here.
Subscribe here.

A Goose in a Dress

= Subscribers only.
Sign in here.
Subscribe here.

The Genealogy of Orals

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
Romancing Kano·

= Subscribers only.
Sign in here.
Subscribe here.

I recently spent a semester teaching writing at an elite liberal-arts college. At strategic points around the campus, in shades of yellow and green, banners displayed the following pair of texts. The first was attributed to the college’s founder, which dates it to the 1920s. The second was extracted from the latest version of the institution’s mission statement:

The paramount obligation of a college is to develop in its students the ability to think clearly and independently, and the ability to live confidently, courageously, and hopefully.

leadership
service
integrity
creativity

Let us take a moment to compare these texts. The first thing to observe about the older one is that it is a sentence. It expresses an idea by placing concepts in relation to one another within the kind of structure that we call a syntax. It is, moreover, highly wrought: a parallel structure underscored by repetition, five adverbs balanced two against three.

Article
The Prisoner of Sex·

= Subscribers only.
Sign in here.
Subscribe here.

“It is disappointing that parts of Purity read as though Franzen urgently wanted to telegraph a message to anyone who would defend his fiction from charges of chauvinism: ‘No, you’ve got me wrong. I really am sexist.’”
Illustration by Shonagh Rae
Article
Gangs of Karachi·

= Subscribers only.
Sign in here.
Subscribe here.

“In Karachi, sometimes only the thinnest of polite fictions separates the politicians from the men who kill and extort on their behalf.”
Photograph © Asim Rafiqui/NOOR Images
Article
Weed Whackers·

= Subscribers only.
Sign in here.
Subscribe here.

“Defining 'native' and 'invasive' in an ever-shifting natural world poses some problems. The camel, after all, is native to North America, though it went extinct here 8,000 years ago, while the sacrosanct redwood tree is invasive, having snuck in at some point in the past 65 million years.”
Photograph by Chad Ress
Article
The Neoliberal Arts·

= Subscribers only.
Sign in here.
Subscribe here.

“College is seldom about thinking or learning anymore. Everyone is running around trying to figure out what it is about. So far, they have come up with buzzwords, mainly those three.”
Artwork by Julie Cockburn

Percentage of Britons who cannot name the city that provides the setting for the musical Chicago:

65

An Australian entrepreneur was selling oysters raised in tanks laced with Viagra.

A naked man believed to be under the influence of LSD rammed his pickup truck into two police cars.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Subways Are for Sleeping

By

“Shelby is waiting for something. He himself does not know what it is. When it comes he will either go back into the world from which he came, or sink out of sight in the morass of alcoholism or despair that has engulfed other vagrants.”

Subscribe Today