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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When Thomas Drake's trial begins next week on June 13th the courtroom should be overflowing because we need people to bear witness to history being made. I urge everyone who does not need to work to attend this critical, historic trial at the Federal District Courthouse in Baltimore. Shout-out to retirees, work-at-home Moms, and the unfortunately unemployed.
I am grateful that Drake's case is finally getting the attention it deserves because it has huge ramifications for both Whistleblowers, the media, and the First Amendment.
While The New Yorker, 60 Minutes, and LA Times have already given the Drake case the attention it deserves, I am surprised and thankful that the more conservative Washington Post editorial board understands that the Espionage Act prosecution of NSA whistleblower Thomas Drake is overkill.
In today's editorial, titled "A case that could be overkill against a whistleblower," WaPo criticizes the Drake prosecution and hits on the consequences for national security whistleblowers considering speaking out against government waste, fraud, abuse, or illegalities:
Mr. Drake’s prosecution smacks of overkill and could scare others with legitimate concerns about government programs from coming forward.
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In the case of former National Security Agency (NSA) official Thomas Drake, yesterday the judge issued a powerful "Order Regarding Admissibility of Classified Information." This is significant because Drake is being charged with "retention" of classified information "for the purpose of disclosure" to the media." Drake did not give classified information to a reporter. Drake is not charged with disclosure, only with retention, and now the Court has ordered the government to stipulate that there is no evidence that the reporter in question relied on the documents Drake is accused of retaining! Kafkaesque.
Drake is being prosecuted because he blew the whistle through proper internal channels.
Instead of tips or Tweets, PLEASE sign the petition demanding accountability in the Drake case.
Yesterday, the Court made the following rulings regarding the evidence:
The email is relevant to the defendant's state of mind and when his cooperation with the DOD IG [Department of Defense Inspector General] began.
Paragraph 1
The email is relevant to the defendant's state of mind, the issue of his retention of documents and his cooperation with the DOD IG.
Paragraphs 2, 6
The e-mail is relevant to the defendant's state of mind and his cooperation with the DOD IG.
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NSA whistleblower Thomas Drake and two other former NSA employees (Bill Binney and Kirk Wiebe) gave stunning interviews on 60 Minutes last night.
In a hard-hitting, on-point report, they told Scott Pelley that NSA had technology---a program called ThinThread--that was ready to deploy in January 2001 and could have picked up critical intelligence prior to 9/11. NSA management rejected ThinThread, and embarked on a billion-dollar boondoggle, Trailblazer, a proposal designed figure how to do what ThinThread could do (collect and analyze massive amounts of data) on a massive and far more invasive scale. NSA also tossed ThinThread's privacy protections, leaving Americans vulnerable to illegal surveillance.
Drake called the failure to gather critical intelligence prior to 9/11
one of the great tragedies in the history of NSA
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