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Protecting Whistleblowers since 1977

Judge Has Choice Words for Justice Department's Prosecution of Drake

Jesselyn Radack, July 18, 2011

I went to the sentencing of former National Security Agency official Thomas Drake, who was charged with 10 felony counts and faced 35 years in prison for allegedly retaining allegedly classified information.

The case extravagantly collapsed as Drake pleaded guilty to a minor misdemeanor of "Exceeding Authorized Use of a Computer" and received a sentence of no jail time and no fine.

Besides the flop of the Obama administration's centerpiece "leak" prosecution, what really stood out to me were the strong words of Judge Richard Bennett, who called the government's handling of the case "unconscionable."

It's worth watching Drake's statement after sentencing:

Some choice exchanges that stood out to me (I'm working off my notes because the transcript is not yet available):

Judge Bennett:

It is unconscionable to search someone's house and then take 2.5 years to bring an indictment. . . . Do you know the reason for the delay?

Prosecutor William Welch III:

I don't.

[This is a lie.  Welch knew that the case was handled by former prosecutor Steve Tyrell before he took it over, and that Lanny Breuer was overseeing it.  He knew thaere had been a draft indictment that the Bush Justice Department considered too weak to file.]

Judge Bennett:

Well, if the Justice Department cannot say, then judicial branch will say this is completely inappropriate. . . I'm confident there's not a single federal judge in the entire country who wouldn't agree.

Prosecutor William Welch III:

We [need a harsh sentence] of Drake to send a message to the silent majority of people who live by secrecy agreements . . . and take it seriously.

Judge Bennett:

What kind of message is sent by the government to suddently dismiss an entire 10-count indictment a few days before trial?

Prosecutor William Welch III:

He should be fined $50,000.  This case calls for an upward departure.

Judge Bennett:

He spent $82,000 in attorney's fees defending himself in a case in which you dropped all the charges.  He's here today represented by public defenders because he's indigent.  He lost his job.  He was shy 5 years of federal service before being eligible for a pension, which he cannot now get.  He will never work in the Intelligence Community again.  Or for the government.  He is working as an hourly employee in the Apple Store.

The New York Times had the best reporting on this:

Judge Bennett reserved his strongest condemnation for the Justice Department. . . The visibly angry judge said that Mr Drake had been through "four years of hell" and that the dragging out of the investigation--and then the dropping of the major charges on the eve of trial--was "unconscionable". . . "It doesn't pass the smell test," he said . . .[The judge's] remarks, following the collapse of the major charges against Mr. Drake, were another embarrassing setback for the government.

Afterwards, Drake summed it up best:

Wow, there's a third branch of government.

 One that works.

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