This site respects your privacy. GAP will not record your IP address or browser information. A detailed privacy statement can be found here.
Protecting Whistleblowers since 1977

The New Yorker's Damning Dissection of "Leak" Prosecution of Thomas Drake

Jesselyn Radack, May 16, 2011

This post originally appeared in Jesselyn Radack's Daily Kos column.

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 . . .

The reality is that the Drake "leak" prosecution is over 5 documents, 2 of which appeared on the NSA intranet as unclassifed and 3 of which were lawfully turned over to the Department of Defense Inspector General in an investigation that validated Drake's concerns about NSA gross waste, mismanagement, and illegalities. The documents were retroactively classified after Drake's house was raided and at least one has since been declassified.  As has been noted in pre-trial proceedings:

There have never been two documents so benign that are the subject of this kind of prosecution against a client whose motives are as salutary as Tom's.

The Article chronicles how Drake, three other former NSA officials (Bill Binney, Kirk Wiebe, and Ed Loomis), and a former staffer on the House Intelligence Committee (Diane Roark) worked through proper internal channels to bring to light gross waste and mismangement at NSA and, worse, massive, unconsitutional, domestic surveillance.

In September, 2002, [Binney], Wiebe, Loomis, and Roark filed what they thought was a confidential complaint with the Pentagon's Inspector General, extolling the virtues of the original Thin Thread project and accusing the N.S.A. of wasting money on Trailblazer.

Billions in wasted money was only the beginning, according to The New Yorker:

When Binney heard the rumors, he was convinced that the new domestic-surveillance program employed components of Thin Thread: a bastardized version, stripped of privacy controls. "It was my brainchild," he said. "But they removed the protections . . . When you remove that, you can target anyone." 

Binney expressed terrible remorse over the way some of his algorithms were used after 9/11  . . . "I should apologize to the American people.  It's violated everyone's rights. It can be used to eavsdrop on the whole world."

In the face of Roark telling him the NSA's domestic surveillance was unconstituional, the article details that Hayden told her he could count on a majority of "the nine votes:"

According to Roark's notes, Hayden told her that such a vote might even be 7-2 in his favor.

The hurbris and arrogance are stunning. The NSA Director claiming to have 7 Supreme Court justices in his pocket to support warrantless surveillance on Americans is a complete abdication of the oath Hayden took to protect and defend the Constitution against all enemies foreign and domestic. We may never know whether or not Hayden really did have the seven votes as the FISA Amendments Act of 2008 effectively shut down all lawsuits on this issue.

The experts identify what the Drake prosecution is really about.

Steven Aftergood of Federation of American Scientists says:

the case will "test whether intelligence officers can be convicted of violating the Espionage Act even if their intent is pure"

Law professor Jack Balkin agrees:

We are witnessing the bipartisan normalization and legitimization of a national-surveillance state.

Even neo-conservative secrecy advocate Gabe Schoenfeld, whose far-flung idea it was to use the Espionage Act to prosecute leakers calls Obama's conduct "draconian:"  

Ironically, Obama has presided over the most draconian crackdown on leaks in our history-even more so than Nixon

Mort Halperin, whose phone was tapped by his old boss, Richard Nixon, sums it up best:

If Drake is convicted, in means the Espionage Law is an Official Secrets Act.

For those of you who recognize that Drake is not an enemy of the state, please sign the petition to demand oversight and stop his prosecution. You can also "like" the Save Tom Drake Facebook Page.

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