There's a lot of MSM attention being paid to the most recent of three identical subpoenas issued to New York Times investigative reporter James Risen to reveal his source, widely known to be whistleblower Jeffrey Sterling. Risen submitted an amazing affidavit that should be required reading for anyone who cares about a free press.
I wanted to add to the dialogue my (in the words of Douglas McCollam) "creepy" experience as another example of the government tracking reporters' phone calls. As the Columbia Journalism Review wrote on my situation back in 2003:
The government got a record of [Newsweek's] calls to an important source [Radack] on an important story [government malfeasance in the "American Taliban" case], without either party's knowing about it. It's a quick lesson on how far an irate government may go to burn your source. So remember, even on a local line, let's be careful out there.
So when Risen says,
I have learned from an individual who testified before a grand jury . . . that was examining my reporting about the domestic wiretapping program that the Government had shown this individual copies of telephone records relating to calls made to and from me
I am not surprised in the least. Why is the MSM only realizing this in 2011 rather than 2003?
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Inspector General (IG) Complainants J. Kirk Wiebe and William Binney React to Release of Report
Thomas Drake Served as Critical Material Witness During IG Investigation.
In response to Freedom of Information Act (FOIA) requests from GAP, Project on Government Oversight, and media outlets, yesterday, the Department of Defense (DoD) released a heavily redacted version of the December 15, 2004 Audit Report entitled "Requirements for the TRAILBLAZER And THINTHREAD Systems."
The Report is the result of a years-long investigation launched after three former NSA officials (J. Kirk Wiebe, William Binney, and Ed Loomis) and a former congressional staffer (Diane Roark) filed a DoD Hotline Complaint alerting the IG to massive waste and mismanagement within the National Security Agency (NSA). Former senior NSA official Thomas Drake served as a material witness. GAP represents Wiebe, Binney, and Drake on whistleblower issues.
The whistleblowers asserted that the NSA had defrauded taxpayers and ignored urgent security needs by shelving a functioning program that included critical privacy protections for Americans (Thinthread) in favor of an undeveloped and significantly more costly venture that lacked privacy protections (Trailblazer).
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The Department of Defense Inspector General just released a heavily redacted version of the Intelligence Audit "Requirements for the TRAILBLAZER and THINTHREAD SYSTEMS."
NSA whistleblower Tom Drake served as a critical material witness during the investigation for this report. Drake's reward was an indictment under the Espionage Act. This Report is what government's case against NSA whistleblower Tom Drake was really about.
Drake would have been on trial this week had the Justice Department's case not crumbled two weeks ago in the face of negative judicial rulings and almost universally critical media coverage (chiefly in The New Yorker and on 60 Minutes).
The newly-released IG report completely vindicates Drake, and the Hotline complainants (former NSA officials J. Kirk Wiebe, Bill Binney and Ed Loomis, and former House Intelligence Committee staffer Diane Roark) who raised concerns that the National Security Agency (NSA) was trading the security of the American people for a undeveloped funding vehicle (Trailblazer) that needlessly invaded the privacy of Americans; all the while NSA rejected a viable, cheaper program (ThinThread) that contained privacy protections and was ready to deploy prior to 9/11. My organization, Government Accountability Project (GAP), represents Drake, Binney and Wiebe.
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New York Times reporter James Risen just filed a motion to quash a grand jury subpoena for him to testify about the identity of his confidential source(s) at the trial of whistleblower Jeffrey Sterling under the Espionage Act.
The motion is as striking for what it DOESN'T SAY (or more aptly, what you CANNOT READ) as for what it does. Over half of its 48 pages of text are redacted. Seven are redacted in their entirety.
I can't help but be struck by the similarities of the arguments made by Risen and the issues in the recently-collapsed prosecution of NSA whistleblower Thomas Drake. I guess with Risen, the government is hoping the third time's the charm, because it has demanded (unsuccessfully) that Risen reveal his confidential sources(s) on this same subject two times before.
James Risen, who has twice won the Pulitzer Prize for his investigative reporting, has been subpoenaed to testify about his source(s) in the trial of Jeffrey Sterling, a CIA whistleblower.
The information at issue revealed a botched CIA effort called "MERLIN," designed to provide Iran with flawed nuclear design information. But the flaw was so obvious that the Iranians spotted it, and it turns out, we ended up providing them useful nuclear weapons information. Whoops!
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The Washington Post has another editorial critical of the prosecution of NSA Whistleblower Thomas Drake. Last week's editorial said that the Drake prosecution "smacks of overkill."
This week, the Post drills down on the Justice Department's glaring defeat in agreeing to let Drake plea to a single misdemeanor with no jail time and no fine when he was originally facing decades in prison for charges under the Espionage Act:
[T]he yawning gap between the original charges against Mr. Drake and the plea bargain is not only an embarrassment for the Justice Department but demonstrates the extent to which it overreached.
Just as important, it focuses on the fact that there's no meaningful whistleblower protection for national security and intelligence employees. Drake has been the model of "responsible" (as defined by the government) whistleblowing. He went to Congress and the Inspector General, the former of which did nothing, and the latter of which vindicated his concerns and then double-crossed him. The case against former NSA official Tom Drake ended not with a bang but a burp. Drake was set to go on trial today for grave charges under the Espionage Act--ironically on the 40th anniversary of the release of the Pentagon Papers by the first man to be prosecuted under the Espionage Act for "mishandling classified information": Daniel Ellsberg.
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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."
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GAP has learned that client Thomas Drake has agreed to a plea bargain arrangement on the charges brought against him by the federal government. While Drake was facing 10 felony counts and 35 years in jail, this settlement agreement stipulates no jail time or fines shall be imposed on him. In return, Drake will plead guilty to a mere misdemeanor. Drake appears publicly in court tomorrow to enter his plea.
The action taken against Drake by the Department of Justice was widely seen as a bellwether case for the current crop of the Obama administration's prosecutions under the Espionage Act against national security and intelligence whistleblowers. Today's news is an absolute victory for whistleblowers.
GAP Homeland Security and Human Rights Director Jesselyn Radack commented, "This is a victory for national security whistleblowers and against corruption inside our intelligence agencies. The prosecution's case was built on sand and crumbled under the weight of the truth.
"Tom Drake went through all proper and legal channels. His experience proves that, presently, there is no safe way to draw attention to wrongdoing at intelligence agencies. The intelligence community cannot keep using a broken classification system to escape responsibility for its internal corruption and lawbreaking."
GAP represents Drake on whistleblower issues. He has a separate criminal defense team.
UPDATE: WaPo and The New Yorker are reporting that the prosecutors have offered NSA whistleblower Tom Drake a plea to reduced charges, but that Drake is refusing. Jane Mayer reports that
the government has been scrambling to find a way to avoid the trial
but that
Drake is refusing, so far, to plead guilty to any wrongdoing, arguing that it is a lie, and he won’t compromise the truth.
As Mayer articulates, this latest development is more evidence the prosecution's case is imploding:
The government’s willingness to bargain down the charges from ten felony counts to a single misdemeanor suggests that the case is teetering.
Today's front page article from The Washington Post reveals that the prosecution's Espionage Act case against NSA whistleblower Thomas Drake is unraveling.
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As reported today by the NYT, the complete Pentagon Papers are set to (finally) be released, about 40 years after making headline news. The whistleblower in that case, Daniel Ellsberg, has been recognized widely by the 'good government' community as the "patron saint" of whistleblowing. At a time when the negative connotations involved with whistleblowers were enormous and all too commonplace, he put his professional career, reputation, and the overall well-being of his family on the line to speak the truth about the Vietnam War. Ellsberg, who has graciously appeared with GAP on several occasions to promote our work and the importance of the phenomenon, was on the right side of history.
This announcement comes at an interesting time, because there's another prominent whistleblower who's about to go to trial -- who's also on the right side of history. Former NSA employee Tom Drake is being prosecuted under the Espionage Act for retaining, not leaking, classified information about a data collection program that was amazingly expensive, threatening to Americans' privacy rights, and wholly undeveloped, despite the availability of a cost-effective, functional alternative that respected Americans' privacy.
Drake (a GAP client) did what he was supposed to do, raising concerns through official channels first -- including senior NSA management, the Defense Department's inspector general, and Congress. You would like to think that the progress made by the American government with regards to the whistleblower system, since Ellsberg's disclosures, would have never allowed for Drake's allegations to be sat on, and done nothing with. This, unfortunately, is not the case. His concerns were ignored.
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 This past Friday, June 3, the Government Accountability Project (GAP) delivered a petition to the heads of both the Senate and House of Representatives Judiciary Committees, as well as Attorney General Eric Holder, regarding the selective and unjust prosecution of National Security Agency (NSA) whistleblower Thomas Drake. Over 4,100 people lent their voices to demand that the Department of Justice drop its case against Drake, who exposed gross waste and wrongdoing at the agency. Specifically, the petition (which can be viewed at http://bit.ly/mU1iVZ) states:
I find it shocking that the Department of Justice is prosecuting National Security Agency (NSA) whistleblower Tom Drake for exposing gross waste and wrongdoing at his agency.And continues:
Why is the Department of Justice prosecuting Tom Drake for acting to protect our rights? And why is he being charged as a spy for his role in fighting gross waste and wrongdoing at the NSA? I urge you to conduct proper oversight and demand that the Justice Department drop the retaliatory prosecution of Tom Drake."The widespread support for Tom Drake has accumulated in the past few weeks, and the message is clear. The public is behind Tom Drake, and is against the federal government's selective and retaliatory prosecution of this hero," stated GAP Homeland Security & Human Rights Counsel Kathleen McClellan.
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