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 The Espionage Act charges that formed the core of the prosecution are being withdrawn.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.

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