This week, GAP client Thomas Drake is prominently featured in the May 23 issue of The New Yorker magazine, in an explosive article on widespread corruption and wrongdoing within the National Security Agency (NSA). The piece, “The Secret Sharer,” highlights Drake’s legal and proper attempts to expose massive NSA waste, mismanagement, and illegality regarding the agency’s use of a data collection program that was more costly, more threatening to American citizens’ privacy rights, and less effective than a legal alternative.
The New Yorker article can be read here.
The article describes several areas of widespread gross waste, fraud, abuse, and illegality at the NSA, including: the implementation of a warrantless, domestic surveillance and datamining system; the agency’s attempt to hide information about the surveillance from Congress and the Supreme Court; the squandering of billions of taxpayer dollars on an undeveloped data collection program that violated American privacy rights; the NSA’s failure to give other intelligence agencies critical information it had obtained prior to 9/11; and the overreaching prosecution of Drake.
GAP Homeland Security and Human Rights Director Jesselyn Radack commented, “It is abhorrent that the Obama administration, which routinely pledges openness and transparency, is prosecuting brave federal employees who stand up against wrongdoing inside government agencies. Tom Drake went through all of the appropriate channels for bringing information to Congress and the Defense Department Inspector General. Drake did not leak classified information to the media and, tellingly, is not charged with disclosing classified information to the media."
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 Former National Security Agency (NSA) official Thomas Drake faces trial under the Espionage Act for allegedly "retaining" classified information. Thankfully, The New Yorker has put this case under a miscroscope and revealed this criminalization of whistleblowing to be the government covering up for its own sins of secret domestic surveillance.
The article details domestic datamining, former NSA director Michael Hayden projecting votes by the Supreme Court if it eventually weighed in on NSA lawbreaking, and NSA proclaiming itself to be the executive agent for the White House. It explains how NSA used the Trailblazer program, "a 1.2-billion flop," as a funding vehicle, despite an inexpensibe, effective, legal alternative (Thin Thread) that could have picked up actionable intelligence such as 9/11 hijackers renting a hotel room miles from NSA's headquarters.
Six times government officials declined to comment on specifics, or anything at all. Tom Drake, who goes on trial June 13th, gave his first public interview on the case, explaining:
This was a violation of everything I knew and believed as an American. We were making the Nixon Administration look like pikers.
Although the government trots out the usual fear-mongering hyperbole that,
This is not an issue of benign documents . . . when individuals [leak,] our soldier in the field gets harmed . . .
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In the case of former NSA official Thomas Drake, who is being prosecuted under the Espionage Act for retention (not disclosure) of allegedly classified information, the government now asserts that under the Classified Information Procedures Act (CIPA), the government should be able to provide "substitutions" for unclassified information.
The through-the-looking glass nature of this case just gets more bizarre as it speeds along.
Normally, the Classified Information Procedures Act (CIPA) allows the Court to create "substitution" for classified information -- such as redacted versions or summaries -- so that both sides can use the information.
But now in a huge leap, the government is arguing that CIPA substitutions should be applicable to "protected" information, which includes "information relating to the activities of NSA" and unclassified information available on the Internet.
This is absurd.
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Thomas Tamm and Thomas Drake have much in common. They both blew the whistle on massive malfeasance and illegality at the National Security Agency (NSA). They were both targets of a years-long investigation into the sources for the Pulitzer-Prize-winning New York Times article revealing George W. Bush's warrantless wiretapping program. Tamm and Drake were both recipients of the Ridenhour Award for Truth-Telling. They even share a first name.
Yet, despite these commonalities, the differences between Tamm and Drake have never been more significant. Namely, Drake is still facing 35 years in prison for charges brought under the Espionage Act, while Tamm is no longer the target of criminal inquiry.
While Tamm has maintained, including on Democracy Now yesterday, that he never broke the law, Tamm has publicly admitted that he (bravely) served as a source of the New York Times.
In contrast, there is no evidence Drake was ever a source for the Times, and Drake never revealed a secret program. Despite that the indictment brought against Drake alleges extensive [First Amendment-protected] contact with a reporter, Drake never gave classified information to a reporter and, tellingly, is not charged with disclosing classified information to reporter.
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The Ridenhour Awards are today, and GAP, as always, is extremely proud to partner with the Nation Institute, Fertel Foundation, and others to make this event happen. There should be more events that honor the brave acts that whistleblowers take in the name of Americans. These coveted prizes are among the most respected for those citizens who act "in the spirit of courage and truth."
Every year, the awardees are exceptional. This year is no different. Whistleblower and author Wendell Potter takes the Ridenhour Book prize this year for his work in exposing the true nature of health care providers. Sen. Russ Feingold takes the Courage Award for his continued, principled fight against corporate wrongdoing. And a new award this year, the Ridenhour Documentary Film Prize, is being handed out to the producers of Budrus.
And the coveted Ridenhour Truth-Telling Prize -- hands down the most respected annual American award for whistleblowers -- is going to National Security Agency (NSA) whistleblower Tom Drake. Drake, who GAP has advocated for strenuously over the past year, helped expose multi-billion dollar waste and fraud at the NSA by going through several internal government channels. His concerns eventually were reported in the Baltimore Sun. For his actions of protecting America, he now has the dubious distinction of being the fourth American indicted under the Espionage Act for allegedly mishandling classified information. Pentagon Papers whistleblower Daniel Ellsberg was the first person.
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The Justice department wants to hold the prosecution of former NSA official and whistleblower Thomas Drake in a Soviet-era vacuum. Recently the government has moved to preclude any mention of published, properly authenticated newspaper articles, over-classification; and, as the Justice Department must be sensitive to the fact that it is trying to jail a whistleblower, it also asks to bar mention of whistleblowing! The icing on the cake is that war-on-whistleblowers "General" William Welch wants to use a "secret code" to talk about evidence in Drake's case.
What kind of fair trial will this be?
In USA Today Justice Department spokeswoman Laura Sweeney defended the Obama administration's war on whistleblowers:
At the same time, there are appropriate avenues for whistle-blowers to follow when it relates to handling of classified information. People with access to classified information cannot make unilateral decisions that such information doesn't have to be treated as classified, regardless of their motive.
That offers no defense whatsoever for the Obama administration's prosecution of Drake because Drake did not leak classified information to the media, and is not charged with leaking classified information to the media. Moreover, Drake did go through appropriate channels for providing classified information to Congress and the Department of Defense Inspector General.
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Remember former U.S. Special Counsel Scott Bloch? Appointed under the Bush administration to head the Office of Special Counsel (OSC), which investigates federal whistleblower disclosures, Bloch quickly gained notoriety as a threat to the merit system and his own employees. Bloch was put under investigation in 2007, following a litany of allegations that he was pursuing personal political agendas over his mandate to protect whistleblowers. A quick and dirty attempt to wipe his own hands clean has landed him a month's worth of jail time, unless his own prosecutors give him a 'get out of jail free' card.
Last April, Bloch pleaded guilty to criminal contempt of Congress for withholding information from Congressional investigators. In 2006, he hired Geeks on Call to scrub his government-issued computer of evidence that he violated the Hatch Act, which prohibits federal employees from engaging in partisan political activity. After Bloch withheld details from the House Oversight Committee of this evidential purging, a federal judge sentenced Bloch to a mandatory one-month minimum jail term.
Red flags went off in the whistleblower community earlier this month when Assistant U.S. Attorney Glenn Leon filed a motion for reconsideration to reduce Bloch’s jail term to probation. Bloch’s lawyers eagerly joined the motion. Apparently, Magistrate Judge Deborah Robinson’s ruling threatened the plea deal that Bloch and his prosecutors arranged.
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