The Justice Department's case against National Security Agency (NSA) whistleblower Tom Drake was a case built on sand that collapsed under the weight of the truth.
Bravo Tom Drake, for refusing to compromise on the truth, standing firm for our Constitution, and responding to government's outrageous allegations with poise and honesty.
The Justice Department sought to put Drake in jail for 35 years and accused him of violating the Espionage Act. Instead, Drake will plead this morning (just days before he was to begin trial) to a minor misdemeanor, exceeding authorized use of a government computer, with the government agreeing to no jail time and no fine. This is an unambiguous victory for Drake, who has endured the most severe form of whistleblower retaliation I have ever seen. The Justice Department's decision to prosecute Drake was pure retribution for his blowing the whistle on massive NSA waste and illegality, and the government's glaring defeat is a victory for whistleblowers who refuse to let government agencies hide wrongdoing behind secrecy and threats of retaliation.
The experts weighed in on the plea deal:
"It's a pale shadow of the original indictment," said Steven Aftergood of the Federation of American Scientists, who works on government secrecy issues and has been following the Drake case. "The defendant was facing decades in prison, and all of the sudden the government says never mind. It's a pretty big reversal of course."
The case against Drake imploded this week in the face of numerous negative rulings from Judge Richard Bennett and growing, widespread public support for Drake. (The New Yorker and 60 Minutes reported on the case in May, and last week the The Washington Post's conservative editorial board opined that the Drake prosecution "smacks of overkill.")
The plea deal is consistent with what Tom Drake told the government all through his years-long ordeal - the truth - that he never disclosed classified information to a reporter. Drake turned down earlier plea deals because he did not want to plea bargain with the truth.
The Drake case is part the Obama administration's twisted strategy to bastardize the Espionage Act to go after public servants who blow the whistle on government wrongdoing. The Espionage Act prosecutions are meant to send a chilling message to whistleblowers. Scott Shane of the New York Times writes:
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.
The Justice Department's defeat in the Drake case only emphasizes the point scholars and transparency advocates have been making all along: the Espionage Act is an archaic law meant to go after spies, and it should not be used to go after whistleblowers.
The experts agree. Ellen Nakashima of WaPo quotes law professor Stephen Vladeck, who points out that using the Espionage Act is even more nefarious considering that massive over-classification plagues the intelligence community:
“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.”
The New Yorker's Jane Mayer reports:
The prosecution has been seen as a test of the government’s use of the Espionage Act to crack down on alleged leakers of national-security secrets. The withdrawal of all felony charges, and acceptance of no jail time for Drake, will likely be seen as evidence that the government overreached in using the Espionage Act against news sources rather than spies.
Drake's victory is a blow to the Obama Administration's attempts to create an Official Secrets Act without congressional approval by criminally prosecuting whistleblowers under the Espionage Act. The message to the Obama administration is clear: criminalizing whistleblowing does not work with the public or in our federal courts.
Despite Lanny Breuer's inflammatory opening press statement when the Drake indictment came down over a year ago that
Our national security demands that the sort of conduct alleged here – violating the government’s trust by illegally retaining and disclosing classified information – be prosecuted and prosecuted vigorously.
the Justice Department, as per usual with the widespread media reports critical of the Drake prosecution, declined comment on the plea deal.
Jesselyn Radack is Homeland Security & Human Rights Director for the Government Accountability Project, the nation's leading whistleblower advocacy organization. This post originally appeared in her Daily Kos column.