“IS THOMAS DRAKE an enemy of the state?”
That is the question Jane Mayer asks in her latest piece for the New Yorker. And in order to answer it, perhaps it is best to place Mr Drake’s actions in context.
On October 4th 2001, President George Bush authorised a secret domestic surveillance programme that, in Ms Mayer’s words, “contravened a century of constitution case law”. The government isn’t allowed to spy on American citizens without a warrant, but Bush officials ignored that requirement, citing their powers under the war on terror. In order to pull off this grand intrusion, the administration convinced three big telecommunication companies to share customer data with the government. That too was illegal, but the telecoms didn’t seem to mind. Still, some in the administration must’ve felt pangs of guilt because officials first tried to keep the programme secret, then misled the public about it, then, after the true nature of the programme was revealed, claimed it had been legal all along (because, as Richard Nixon famously told David Frost, “when the president does it, that means that it is not illegal”). The classified programme was exposed by the New York Times in late 2005 after a former lawyer at the Justice Department tipped off the paper.
None of the actors referred to above have faced any legal consequences for their actions.
Thomas Drake, on the other hand, faces up to 35 years in prison for violating America’s Espionage Act. Mr Drake, a former executive at the National Security Agency, was probed by investigators looking into the warrantless wiretapping leak, but they couldn’t pin that misdeed on him. At the time, though, he admitted to talking to a reporter (an unauthorised act, but not illegal) and the Pentagon’s inspector-general about problems at the NSA. So instead of charging him for the leak, they accused him of retaining in his personal files five classified documents.
Let’s go through this trove of secrets. Three of the documents that could land Mr Drake in jail were copies of material he had submitted to the inspector-general in a complaint about a surveillance programme described by others as a “wasteful failure”. The programme in question was abandoned in 2006 after eating up $1.2 billion. (Ms Mayer helpfully notes that the inspector general’s website tells complainants to keep copies of their documents.) One of the other documents under scrutiny is a schedule of meetings marked “unclassified/for official use only”. Prosecutors say the paper should’ve been secret and that Mr Drake should’ve known it should’ve been secret. The final document was declassified three months after Mr Drake’s indictment.
Let’s again put Mr Drake’s actions in context. John Deutch, the former CIA director, Alberto Gonzales, the former attorney-general, and Sandy Berger, the former national security adviser, were all accused of similarly mishandling classified material. None of them received more than a slap on the wrist for their actions. (Mr Berger, who pled guilty to a misdemeanour charge, received the harshest punishment: two years probation. In one of the many ironies of this story, Mr Berger’s defence lawyer was Lanny Breuer, who is now heading up the Drake prosecution.)
Far from being an enemy of the state, Mr Drake appears to be a whistleblower who rubbed some people the wrong way. He complained to the inspector general and he spoke to a Baltimore Sun reporter about waste, mismanagment and illegalities at the NSA. For that he expected to lose his job. But, he maintains, he did not leak classified information, and he is not accused of such. What he did was embarrass the NSA and then fall into the hands of frustrated investigators who couldn’t find their primary target. The man they were looking for is named Thomas Tamm. In 2008 he admitted to leaking the warrantless wiretapping programme to theTimes. The Justice Department has said it will not file charges. Something’s wrong with this story.