The New Yorker's lead article this week is on the tragic suicide of one of the attorneys. Nicholas Marsh, in the botched prosecution of the late-Senator Ted Stevens of Alaska.
As the article notes,
the senior people in the Stevens investigation, did not receive, in Marsh's mind, equal punishment.
Marsh, one of the junior attorneys, was exiled to a backwater office at the Justice Department and later committed suicide.
Yet lead attorney Welch, who is no stranger to being in criminal jeopardy (arrested for drunk driving and currently under criminal investigation for prosecutorial misconduct in the Stevens case) is now enjoying career rehabilitation on the back of whistleblowers like Thomas Drake.
In reading the latest New Yorker article, I couldn't help but note the eerie parallels between the botched Ted Stevens prosecution and the Thomas Drake prosecution. Even though these cases are quite different (Ted Stevens was convicted and Tom Drake is a whistleblower who tried to stop government corruption), they have striking things in common. I submit that the most notable aspect--and the one largely missed in the New Yorker article--is the man behind the curtain: disgraced chief of the Public Integrity Section William Welch.
As author Jeffrey Toobin notes at the outset,
[T]he Stevens case was more than an unsuccessful prosecution. It was a profoundly unjust use of government power against an individual--a case flawed in both conception and execution.
The same can be said for the Drake prosecution, which stems from a questionable "leak investigation" into the sources for the Pulitzer Prize-winning New York Times story revealing Bush's warrantless wiretapping. The government is projecting its own sins of illegal secret domestic surveillance onto a patriotic individual who devoted his entire career to the military and government service--but made the mistake of reporting NSA misdeeds.
Drake, who landed on the government's radar screen as part of this multi-million dollar, 5+ year investigation, is a whistleblower who disclosed gross waste and illegality at the National Security Agency (NSA) to his bosses, NSA's Inspector General, the Defense Department Inspector General (which substantiated his claims), and the Congressional intelligence committees.
As Toobin notes,
The case against Stevens was dubious from the outset. He was not charged with bribery; there is no allegation that he provided any quid pro quo.
The same can be said of the Drake case, which is just as weird. After trying unsuccessfully to hobble together a case against the four whistleblowers who filed the aforementioned Department of Defense Inspector General claim against NSA (for which Drake was a material witness), William Welch II took it over, and transmogrified it into a prosecution under the Espionage Act.
The MSM would have us believe that Drake is charged with leaking classified information to the Baltimore Sun. But the reality is that Drake never gave classified information to the Baltimore Sun and is not charged with giving classified information to a newspaper. He is actually charged with "unlawful retention for the purposes of disclosure," which is not even a real crime, but rather a bastardized amalgamation of phrases from the Espionage Act and other laws.
As Toobin also notes about the Stevens case,
the most contentious pretrial issue involved discovery. . . Some prosecutors adopt what's known as "open file" discovery, where they simply open all their files to the defense; in contrast, the Stevens prosecutors responded to the defense requests issue by issue, granting some and refusing others, [which resulted in] draining and time-consuming disputes about discovery.
Welch appears to be using the same scorched-earth tactic in the Drake case, most recently demanding that Drake's defense team turn over prematurely the names of its consulting experts, which would have given the prosecution all sorts of unfair advantages. Luckily, the judge nixed that.
What's indisputable is that the government did not play fair with Ted Stevens,
Toobin observes, and it is not playing fair with Tom Drake. It is retaliating against someone who had a more-than-reasonable belief that his agency was engaged in fraud, waste, abuse and illegality, and reported to all the proper internal channels.
I agree with Toobin:
The long investigation obviously took a terrible emotional toll on Marsh. But the errors that he and his colleagues made cause real and lasting damage to Ted Stevens, and to his family as well.
Drake lost his career in the intelligence community and is being represented by a public defender because he has exhausted all his financial resources. While the Ted Stevens prosecutors took a
fairly routine political corruption investigation in Alaska and tried to leverage it into a prosecution of one of the leading political figures in the country,
the Drake prosecutors are doing something even worse: they are taking lawful whistleblowing and trying to criminalize it.
Will someone please audit the 5+ years, multi-million dollar leak investigation that has entailed 5 prosecutors and 25 FBI agents and yielded NOTHING--because it was flawed in the first place? Will someone also please investigate William Welch before he wreaks havoc on anyone else's life?
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.