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Protecting Whistleblowers since 1977

Newly-Released Documents Show Case Against Thomas Drake Was Built on Sand

, July 31, 2012

I've said since the collapse of the Espionage Act case against National Security Agency (NSA) whistleblower Thomas Drake that the case was built on sand and collapsed under the weight of the truth.

Since the case collapsed last summer, the more information revealed publicly about the government's evidence only confirms the flimsiness of the evidence used to prosecute Drake under the heavy-handed Espionage Act. I wrote yesterday on a Washington Post editorial asking "is the classification system dysfunctional?" after it was revealed that an Espionage Act count was based on a completely innocuous and obviously unclassified e-mail.

Now, Steven Aftergood of the Federation of American Scientists reports on the release of NSA's supposed justifications for the clearly incorrect classification designations and former G.W. Bush administration classification czar's J. William Leonard's scathing critique of the NSA's after-the-fact decisions. All of the allegedly-classified information found in Drake's home underwent a "forced classification review" after which NSA experts claimed it was classified.

Props to Aftergood for using FOIA to get the information publicly released. It should give any American pause to consider the fact that not only will the government consider such bland and unremarkable information as "classified," but use that banal information as the basis to prosecute a whistleblower under the Espionage Act.

Leonard's complaint articulates how damaging it is to the classification system to over-classify information and use that wrongly-classified information to aggressively prosecute a whistleblower under the Espionage Act:

Nonetheless, when deciding to apply the controls of the classification system to information, government officials are in-turn obligated to follow the standards set forth by the President in the governing executive order and not exceed its prohibitions and limitations. Failure to do so undermines the very integrity of the classification system and can be just as harmful, if not more so, than unauthorized disclosures of appropriately classified information.

Leonard goes on to state that failure to hold the over-classifying officials accountable would

render [the provision prohibiting over-classification] of the [Executive] Order utterly feckless.

Now the Justice Department is aggressively prosecuting Central Intelligence Agency (CIA) whistleblower John Kiriakou under the Espionage Act. Thomas Drake himself has pointed to similarities between his case and Kiriakou's. Considering the banality of the documents that formed the basis of the Espionage Act case against Drake, the Justice Department should take the hint that using the Espionage Act to go after whistleblowers based on such innocuous information not only chills constitutionally-protected free speech, it undermines the entire classification system.

The epilogue to Drake's case: Drake, and his fellow whistleblowers (Bill Binney, J. Kirk Wiebe, Edward Loomis, and Diane Roark), have been forced to sue the government for return of their property, which the government seized in retaliatory FBI raids over four years ago. Outrageously, the NSA still maintains the whistleblowers had allegedly-classified information on their home computers. Josh Gerstein of Politico reported on Diane Roark's suit, filed in Oregon last week, five years to the day since her property was confiscated:

Roark says in the complaint (posted here) that she signed an affidavit "swearing that she was not the source of the NYT or [NYT reporter James] Risen exposes on 'warrantless wiretaps.'" She contends that she cooperated with investigators, but acknowledges that she asserted legislative privilege in refusing to reveal her sources for information about the warrantless wiretaps issue and about her discussion with a member of Congress on the issue

Roark's suit is particularly interesting as her complaint articulates that she was subjected to an invasive "sneak & peak" search under the PATRIOT Act, but never notified as required by law:

Roark's case could present particular complications because she says that prior to the main raid she was the target of a surreptitious search, also known as a "sneak and peek." Such searches can be carried out under the Foreign Intelligence Surveillance Act or the Patriot Act, though under the latter law those searched are almost always formally notified of the search after some delay. Roark says she never was. Her suit for the return of property could give her the opportunity to challenge the legality of the searches.

The more information revealed about the Drake case, the more clear it becomes that the prosecution's goal was not to protect classified information, but to punish a whistleblower who went through proper internal channels to disclose massive fraud, waste, abuse, and illegality at NSA.


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