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Protecting Whistleblowers since 1977

WaPo Editorial: Prosecution of NSA Whistleblower Tom Drake Is Overkill

Jesselyn Radack , June 06, 2011

This post originally appeared in her Daily Kos column.

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.

For those wondering why the Obama Justice Department is engaging in the most severe form of whistleblower retaliation I have ever seen, remember that Drake blew the whistle using proper internal channels and participated in a years-long Department of Defense Inspector General investigation, which resulted in a still-secret audit substantiating his concerns that NSA wasted billions of dollars on a failed surveillance program that eliminated critical privacy protections for Americans.  In Drake's own words, on60 Minutes a few weeks ago, he is being prosecuted to

send a chilling message . . . To other whistleblowers, to others in the government, not to speak up or speak out. Do not tell truth to power. We'll hammer you.

With Drake's trial beginning next week and four other whistleblowers on deck for trial under the Espionage Act, the Obama administration, despite candidate Obama's lofty rhetoric that whistleblowers are courageous, patriotic, and necessary to good government, is trying to set a precedent that would criminalize whistleblowing, make it much easier to prosecute journalists, and is a back-door way of creating an Official Secrets Act.

WaPo also recognized the enormous First Amendment implications of Drake's case:

The newspaper maintains an interest in obtaining information that sheds light on the inner workings of government, including its national security apparatus.

In her recent New Yorker piece dissecting the Drake prosecution, Jane Mayer articulated the disastrous consequences for the media if Drake is convicted:

Because reporters often retain unauthorized defense documents, Drake’s conviction would establish a legal precedent making it possible to prosecute journalists as spies. “It poses a grave threat to the mechanism by which we learn most of what the government does,” [Mort] Halperin of the [Open Society Institute] says.

If you can commit to attending trial, please so indicate in the comments.  We cannot let this selective and retaliatory prosecution go forward unnoticed.

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