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Protecting Whistleblowers since 1977

Hoodwinked: The DOJ lied to us about NSA whistleblower Thomas Drake

Decora, May 20, 2011

This blog originally appeared in Decora's Daily Kos column. Decora also blogs at Purple Dead Nettle.

Note: Some may find this diary wandering, overlong, meandering, obtuse, and scatterbrained. I agree. However one person has expressed a like for it, so I reckon I'll post it anyways.

I am not the sharpest tack in the box. I'm not trained in national security, law, or much of anything really. Like most people, I first heard about the NSA whistleblower Thomas Drake case back in mid 2010. I didn't, at first, think he was a whistleblower. I thought he was just some guy who had been caught doing something dumb. Some of the news stories quote anonymous sources, saying that it was "hubris" or "corporate IT politics" that Drake had gotten caught up in. I believed that. Part of the problem was that I couldn't understand the basic facts of the case. It was like swimming through algae. I looked at the news stories; many were titled something like 'leak case' or 'leaker', and they had this 'tsk tsk' vibe and they were short on details. Most of them didn't even list the actual specific charges against him; they just said 'leaking'. I don't think any of the headlines said 'Whistleblower'. Now, looking back, I have to wonder; how can the word 'leaker' meet journalistic ethics rules for neutrality, but not the word 'whistleblower'?

Something about those words "Espionage" or "Leaking" seem to switch off the logic center of my brain. Maybe I just don't wan't to support anything that might "harm the troops"; maybe I want to be patriotic. When the government says things, I'm inclined to believe them. In the Drake case, I believed what the indictment said... that he shredded documents, that he copy-pasted classified info, that he gave classified information to a reporter, and that he lied about all of it. I was totally, completely, one hundred percent wrong. And now I'm ashamed of myself.

Thanks to dozens more articles in the news media, like Gerstein @ Politico, and by bloggers like Jesselyn Radack @ whistleblower.org / dailykos.com, and the 'Save Tom Drake' facebook page, and now, recently, this new article in The New Yorker, by Jane Mayer, the muddy water is clearing up. The facts are coming to the surface and the sunshine is coming out. Drake's case is a travesty and the government should be ashamed of itself, and so should I for believing the government unquestioningly. This is the new McCarthyism -- in fact, the law they are using against Drake is a law that was created during the McCarthy era, something I will describe at the end of this rant.

Thomas Drake carefully and meticulously avoided revealing any sensitive information to the reporter he dealt with. He did not 'leak', he did not 'disclose', and he did not 'deliver' sensitive information.

A bunch of the documents he is charged with 'retaining' were not classified. The government decided to classify them -- after they had indicted him. The law they charged him with, 18 USC 793(e), doesn't even use the word 'classified', it uses the phrase 'national defense information'. One must ask, then, why the government bothered to 'retroactively classify' the documents, if their classification has no bearing on the case? Judges have specifically declared that classification doesn't matter in a 793(e) case -- the jury is supposed to ignore all that and just decide whether it's 'national defense information' or not.

The government says it doesn't want to play the case in the media. Why, then, did the government  issue such a damning press release announcing it's indictment of Mr. Drake? Why did the government write an indictment against Mr. Drake with pages and pages of irrelevant details that are completely unrelated to the charges against him?

The government claims that he lied to them about giving classified information to a reporter. That makes it sound like he gave classified information to a reporter. He didn't. See what they did there? They faked me out; making me think he did two bad things at once. But he did neither. He told the FBI that he didn't give classified information to a reporter. Then the FBI said that they think he did, and that therefore he is lying. See how it works?

The government claims Drake lied about copy/pasting classified information. But he copy/pasted material that was not sensitive and not classified. He took great pains to avoid copying anything sensitive. They decided he didn't, and that therefore he was lying. They charged him with 'making a false statement'.

They say he 'deleted documents'. Do you ever delete files off of your computer? That's what Drake did. Drake, the "mad shredder", did the same thing you do every day to free up space on your hard disk. They call that 'obstruction of justice'.

It's like if the city government decided to change the speed limit from 45 to 25, then retroactively fined everyone for speeding. Then, if a driver said they weren't speeding, the government would declare them liars. Then, if a driver reset their trip odometer, which is a normal activity for a car owner, the government would declare that to be "obstructing justice" and "deleting evidence". It is a legal edifice built upon a foundation of logical sand.

If you have ever seen the famous youtube video entitled "Don't talk to the police," this is a perfect case of why you shouldn't. In that video, a lawyer and a police officer detail all the various tricks that  police use to catch suspects in lies and confessions. The police officer in the video is an honest cop; he points out that his purpose is not to convict innocent people. Professor Duane points out that some police officers are not as upstanding as Officer Bruch.

The trick they used on Drake is similar to the trick they used on Dr. Wen Ho Lee, as he described in his book "My Country Versus Me". They lied to Lee in order to get him into a room on false pretenses, for example saying they needed his help on another case. Then they went into  long, long interview sessions, asking him tons of confusing questions, and often the same question multiple times over the course of several hours or days. If he made a tiny discrepancy in wording they claimed he was lying. If he said he didn't copy classified information, like math equations that can be found in college textbooks, they would simply decide the information was classified anyways and then claim he was lying about it. They used a similar trick against Stephen Jin-Woo Kim, who is also currently fighting an Espionage Act charge for having a conversation with a reporter about whether North Korea might test a nuclear bomb. They simply asked him a bunch of questions and then tricked him into screwing up the facts surrounding the timing of his contacts with the reporter. All three of these men have one thing in common; they were trying to be 'helpful' and cooperate with the FBI. They all got punished for their good intentions.

The FBI raided the houses of several of Drake's friends in 2007; Roark, Binney, and Wiebe. Why? His friends had filed a request for the government to investigate what they felt was waste, fraud, and abuse at the NSA in the Trailblazer program. That was in 2002. Five years later, the raids happened.

The government burst into their homes. Some of them had kids in their homes at the time. One of them claims, in the Mayer article, that government agents pointed a gun at his head, and also at his wife. The government seized their personal information, their computers, etcetera.

I have wondered why we have not heard anything from Roark, Binney, Wiebe, and Loomis all through 2010 and early 2011. The closest I remember is that Roark's lawyers spoke to reporters from Newsweek. Jane Mayer's article is the first I recall of hearing their stories in their own words.

Perhaps, with all the details in Mayer's article, there is an explanation of why we haven't heard anything from them. I cannot know for certain, but if I had been in their shoes, had my house raided, my family threatened, my computers taken, and my friend facing 35 years in prison; I would be frightened. Add these details to the 'draft indictment' against Drake; originally his  friends were named in it, their names were only dropped from the indictment later, circa 2009. In the face of all that, I probably wouldn't speak with anyone. But that is just my speculation.

A commenter on slashdot named Geoboxer says the following:

"this surveying and whistleblower retribution essentially blows watergate out of the fucking water."

I don't know if experts would agree, and I am certainly not an expert, but it seems like it's in the same ballpark. Nixon personally ordered the organs of state to illegally spy on, intimidate, harass, and prosecute his political opponents and critics. I haven't personally seen evidence that Bush or Obama  did anything on that level. However, this Drake case certainly doesn't make things look good. And we are only finding out about the details many many years after it happened. Bush's staff also harassed whistleblowers like Jesselyn Radack and Sibel Edmonds. What Obama did to Bradley Manning is unconscionable. There are many others, many that we probably don't even know about. It is not exactly a record that inspires confidence in Bush's administration nor in Obama's.

One of the hallmarks of Nixon's problems was that his behavior shocked all spectrums of the political rainbow. It is funny then, today, to find various stripes of internet comment boards have similar sentiments about the activity uncovered in Jane Mayer's article. Who is defending the government here, in the public sphere? When you dig through news articles on the Drake case, there are a few people accusing him of hubris or of being angry about corporate politics. Maybe, but the more facts that come out, the less that seems to be correct.

According to Mayer's interviews, Drake and his friends were not simply worried about wasting money. Drake says that what the govermnent was doing made Nixon's group "look like pikers". (piker: One who does things in a small way. Merriam Webster's online). Binney said he should apologize to the American people; his work had been 'twisted'; he believes the government is collecting phone records and email on everyone in the country. They all quit over their concerns. Even Drake's boss, Baginski, number 3 at the agency, quit for similar reasons, according to Mayer. It's hard to believe that this was simply office politics about an IT system.

There are also commenters who say he should have gone through 'official channels', and not 'leak to the press'. That is a nice meme, but he did go through official channels. That is the only reason the government targeted his friends; because they had all gone through the official channel of filing an Inspector General complaint. If they had just 'gone to the press', they probably wouldn't be in trouble because the government coudln't have figured out who they were. Furthermore, he didn't "leak to the press." He didn't "leak" anything. He talked to a reporter about unclassified, non sensitive information.

I feel ashamed now. The government has lied to us. I have been hoodwinked, with apologies to Malcolm X. I am so caught up in this terror scare that I have just started to accept things without applying my God-given brain (such as it is) to the facts. I believed the government, despite the large mounds of evidence in the past few years that the government is often incompetent, dishonest, and prone to use it's power to cover it's own mistakes rather than to protect security. Pat Tillman, Iraq WMDs, the failure of the 9/11 commission to interview key FBI and NSA personnel, etc. etc. etc. And now, armed agents raiding whistleblowers houses and pulling loaded guns on them and their family. I wish the dozens of FBI & DOJ agents assigned to this whistleblower case had been assigned instead to the FBI's recent raids on Maria Salvatrucha and other violent gangs; the Mexican mafias make Al Qaeda look like rank amateurs.

Oh, I promised to discuss how the law they are using against Mr. Drake came out of the McCarthy Era. His indictment says he is charged with 18 USC 793(e). If you look at the history of this law, US Code Title 18, section 793 subparagraph (e), you will find out that it was created as part of the massive McCarran Internal Security Act of 1950, which was passed during the Second Red Scare. This act was actually vetoed by President Truman, who described it as follows:

"The course proposed by this bill would delight the Communists, for it would make a mockery of the Bill of Rights and of our claims to stand for freedom in the world."

The congress overturned his veto.

793(e) was created basically to enable the government to prosecute people like Alger Hiss; Mr Hiss had hidden a bunch of state department documents in a pumpkin, and a new Congressman named Richard Nixon had worked on the case against him. It turns out that Hiss was not prosecutable for Espioange, because the old fashioned Espionage Act from 1917 only applied to people who had 'delivered' documents. So, the congress put this word "retained" into 793(e), thus making the Espionage Act applicable to the next alleged Soviet spy that might come along.

Of course, most of the actual, real Soviet spies, like Ames and Walker, were prosecuted under the old fashioned 1917 Espionage law sections, like (d), without resorting to (e). And it turns out that 793(e) has been used against a lot of non-spies, whistleblowers, and innocents over the years, like Russo and Ellsberg, Morison, Dr. Wen Ho Lee, Rosen, Weissman, and now Thomas Drake.

Anyways. The more facts that come out about the Drake case, the more it seems like the government is not giving us the whole story, and the worse the government's motivations look. I know, that, we are supposed to allow the trial to decide on a lot of these facts. The judge and jury are supposed to decide the outcome. But in the governments statements, it's press releases, and it's indictment, it has tossed away all those considerations, going way, way beyond the actual charges, and painted a picture of the defendant that is simply not matching up with reality as time goes on and the facts are revealed. I was fooled. I believed the government without asking questions. My apologies.

"In the intoxication of youthful successes I had felt myself to be infallible, and I was therefore cruel. In the surfeit of power I was a murderer and an oppressor. In my most evil moments I was convinced that I was doing good, and I was well supplied with systematic arguments. It was only when I lay there on rotting prison straw that I sensed within myself the first stirrings of good. Gradually it was disclosed to me that the line separating good and evil passes not through states, nor between classes, nor between political parties either, but right through every human heart, and through all human hearts. This line shifts. Inside us, it oscillates with the years. Even within hearts overwhlemed by evil, one small bridgehead of good is retained; and even in the best of all hearts, there remains a small corner of evil."

-Alexander Solzhenytsin, Gulag Archipelago, quoted at John Simkin's Spartacus Schoolnet