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Protecting Whistleblowers since 1977

Powerful Ruling in the Drake Case

Jesselyn Radack, June 02, 2011

This post originally appeared in herDaily Kos column.

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.

Paragraphs 3, 4, 5.
 
Why is this so important?  Because the evidence underlying Counts 3, 4, and 5 consists of information found in Drake's basement related to the Department of Defense Inspector General investigation of NSA, for which he served as the primary material witness and which ultimately validated the concerns of four whistleblowers about NSA's gross waste, mismanagement and illegality regarding secret domestic spying programs.  That information, under the Inspector Generals Act of 1978, is supposed to be protected, not used to later prosecute a cooperating witness in an investigation that vindicated the whistleblowers.
 
The Court notes that the parties agree that these documents, identified as the [Baltimore Sun reporter] Gorman Hushmail emails [with Drake], are relevant and admissible, and contain no classified information.
 
 

Paragraph 11 (emphasis added).  This is significant because, as explained in the next paragraph,

The government contends that the [newspaper] articles contain classified information [but] has offered to stipulate that there is no evidence that Reporter A [Gorman] relied on any of the allegedly classified information found in Mr. Drake's home in any newspaper articles published on her behalf. . . The Court also recognizes that the topic areas and subject matter of the articles are relevant to the willful retention charges and to rebut the allegations in the Indictment that Mr. Drake brought classified information home for the purpose of sharing it with a reporter. . .[T]he court instructs the parties to agree to a stipulation regarding the fact that there is no evidence that Reporter A [Gorman] relied upon any allegedly classified information found in Mr. Drake's house in her articles.

Paragraph 12 (originally the government tried to keep the newspaper articles for which they claimed Drake was the "leaker" out of trial).

But the government is still forcing this case to trial at the expense of the taxpayers and Mr. Drake.  Why aren't we asking why?
 

Jesselyn Radack is National Security & Human Rights Director for the Government Accountability Project, the nation's leading whistleblower advocacy organization.