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 The Espionage Act charges that formed the core of the prosecution are being withdrawn.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

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

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

Beltway Secrecy

In five easy lessons

Get access to 169 years of
Harper’s for only $23.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

December 2019

Gimme Shelter

= Subscribers only.
Sign in here.
Subscribe here.

Body Language

= Subscribers only.
Sign in here.
Subscribe here.

Trash, Rock, Destroy

= Subscribers only.
Sign in here.
Subscribe here.

Make Way for Tomorrow

= Subscribers only.
Sign in here.
Subscribe here.

The Red Dot

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
Gimme Shelter·

= Subscribers only.
Sign in here.
Subscribe here.

I.

That year, the year of the Ghost Ship fire, I lived in a shack. I’d found the place just as September’s Indian summer was giving way to a wet October. There was no plumbing or running water to wash my hands or brush my teeth before sleep. Electricity came from an extension cord that snaked through a yard of coyote mint and monkey flower and up into a hole I’d drilled in my floorboards. The structure was smaller than a cell at San Quentin—a tiny house or a huge coffin, depending on how you looked at it—four by eight and ten feet tall, so cramped it fit little but a mattress, my suit jackets and ties, a space heater, some novels, and the mason jar I peed in.

The exterior of my hermitage was washed the color of runny egg yolk. Two redwood French doors with plexiglass windows hung cockeyed from creaky hinges at the entrance, and a combination lock provided meager security against intruders. White beadboard capped the roof, its brim shading a front porch set on cinder blocks.

After living on the East Coast for eight years, I’d recently left New York City to take a job at an investigative reporting magazine in San Francisco. If it seems odd that I was a fully employed editor who lived in a thirty-two-square-foot shack, that’s precisely the point: my situation was evidence of how distorted the Bay Area housing market had become, the brutality inflicted upon the poor now trickling up to everyone but the super-rich. The problem was nationwide, although, as Californians tend to do, they’d taken this trend to an extreme. Across the state, a quarter of all apartment dwellers spent half of their incomes on rent. Nearly half of the country’s unsheltered homeless population lived in California, even while the state had the highest concentration of billionaires in the nation. In the Bay Area, including West Oakland, where my shack was located, the crisis was most acute. Tent cities had sprung up along the sidewalks, swarming with capitalism’s refugees. Telegraph, Mission, Market, Grant: every bridge and overpass had become someone’s roof.

Article
Body Language·

= Subscribers only.
Sign in here.
Subscribe here.

I am eight years old, sitting in my childhood kitchen, ready to watch one of the home videos my father has made. The videotape still exists somewhere, so somewhere she still is, that girl on the screen: hair that tangles, freckles across her nose that in time will spread across one side of her forehead. A body that can throw a baseball the way her father has shown her. A body in which bones and hormones lie in wait, ready to bloom into the wide hips her mother has given her. A body that has scars: the scars over her lungs and heart from the scalpel that saved her when she was a baby, the invisible scars left by a man who touched her when she was young. A body is a record or a body is freedom or a body is a battleground. Already, at eight, she knows it to be all three.

But somebody has slipped. The school is putting on the musical South Pacific, and there are not enough roles for the girls, and she is as tall as or taller than the boys, and so they have done what is unthinkable in this striving 1980s town, in this place where the men do the driving and the women make their mouths into perfect Os to apply lipstick in the rearview. For the musical, they have made her a boy.

No, she thinks. They have allowed her to be a boy.

Article
Trash, Rock, Destroy·

= Subscribers only.
Sign in here.
Subscribe here.

The writer and filmmaker Virginie Despentes lives in a nondescript modern building in the Belleville neighborhood of Paris. I know it well: it has a Bricorama—like a French Home Depot—on the ground floor, where we sometimes had cause to shop back when we lived in the neighborhood. The people who work there seemed to hate their jobs more than most; they were often absent from the sales floor. In the elevator to Despentes’s apartment, I marvel that while I was trying to get someone to help me find bathroom grout she was right upstairs, with her partner, Tania, a Spanish tattoo artist who goes by the name La Rata, like someone out of one of Despentes’s novels.

In an email before our meeting, Despentes asked that we not do a photo shoot. “There are so many images available already,” she explained. Much had been written about her, too. A Google search yielded page after page: profiles, interviews, reviews, bits and bobs—she read from Pasolini at a concert with Béatrice Dalle; someone accused her of plagiarizing a translation; a teacher in Switzerland was fired for teaching her work. The week I met her, she appeared in the culture magazine Les Inrockuptibles in conversation with the rapper-turned-actor JoeyStarr. The woman is simply always in the news.

Article
Burning Down the House·

= Subscribers only.
Sign in here.
Subscribe here.

Discussed in this essay:

Plagued by Fire: The Dreams and Furies of Frank Lloyd Wright, by Paul Hendrickson. Knopf. 624 pages. $35.

Frank Lloyd Wright isn’t just the greatest of all American architects. He has so eclipsed the competition that he can sometimes seem the only one. Who are his potential rivals? Henry Hobson Richardson, that Gilded Age starchitect in monumental stone? Louis Sullivan, lyric poet of the office building and Wright’s own Chicago mentor, best known for his dictum that form follows function? “Yes,” Wright corrected him with typical one-upmanship, “but more important now, form and function are one.” For architects with the misfortune to follow him, Wright is seen as having created the standards by which they are judged. If we know the name Frank Gehry, it’s probably because he designed the Guggenheim Museum in Bilbao, Spain, in 1997. And Gehry’s deconstructed ship of titanium and glass would be unimaginable if Wright hadn’t built his own astonishing Guggenheim Museum on Fifth Avenue some forty years earlier.

Article
The Red Dot·

= Subscribers only.
Sign in here.
Subscribe here.

That night at the window, looking out at the street full of snow, big flakes falling through the streetlight, I listened to what Anna was saying. She was speaking of a man named Karl. We both knew him as a casual acquaintance—thin and lanky like Ichabod Crane, with long hair—operating a restaurant down in the village whimsically called the Gist Mill, with wood paneling, a large painting of an old gristmill on a river on one wall, tin ceilings, and a row of teller cages from its previous life as a bank. Karl used to run along the river, starting at his apartment in town and turning back about two miles down the path. He had been going through the divorce—this was a couple of years ago, of course, Anna said—and was trying to run through his pain.

Cost of renting a giant panda from the Chinese government, per day:

$1,500

A recent earthquake in Chile was found to have shifted the city of Concepción ten feet to the west, shortened Earth’s days by 1.26 microseconds, and shifted the planet’s axis by nearly three inches.

Sebastian Gorka, the former deputy assistant to the president who now hosts a radio show called America First, was banned from YouTube for repeatedly uploading audio from the rock band Imagine Dragons without copyright permission.

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

HARPER’S FINEST

Jesus Plus Nothing

= Subscribers only.
Sign in here.
Subscribe here.

By

At Ivanwald, men learn to be leaders by loving their leaders. “They’re so busy loving us,” a brother once explained to me, “but who’s loving them?” We were. The brothers each paid $400 per month for room and board, but we were also the caretakers of The Cedars, cleaning its gutters, mowing its lawns, whacking weeds and blowing leaves and sanding. And we were called to serve on Tuesday mornings, when The Cedars hosted a regular prayer breakfast typically presided over by Ed Meese, the former attorney general. Each week the breakfast brought together a rotating group of ambassadors, businessmen, and American politicians. Three of Ivanwald’s brothers also attended, wearing crisp shirts starched just for the occasion; one would sit at the table while the other two poured coffee. 

Subscribe Today