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UPDATE: WaPo and The New Yorker are reporting that the prosecutors have offered NSA whistleblower Tom Drake a plea to reduced charges, but that Drake is refusing. Jane Mayer reports that  

the government has been scrambling to find a way to avoid the trial

but that
Drake is refusing, so far, to plead guilty to any wrongdoing, arguing that it is a lie, and he won’t compromise the truth.

As Mayer articulates, this latest development is more evidence the prosecution's case is imploding:

The government’s willingness to bargain down the charges from ten felony counts to a single misdemeanor suggests that the case is teetering.

Today's front page article from The Washington Post reveals that the prosecution's Espionage Act case against NSA whistleblower Thomas Drake is unraveling.  

The prosecution has already agreed to withdraw key exhibits.

Steven Aftergood of the Federation of American Scientists suggests in today's Post article the meaning of the government's withdrawing exhibits:

"By withdrawing several of the exhibits, at least a couple of the counts against Drake will almost certainly need to be dismissed,” said Steven Aftergood, a national security expert with the Federation of American Scientists who has followed the case closely since Drake was indicted last year. “It changes the whole dynamic of the prosecution and may even set the stage for settlement or dismissal.”

The article follows a WaPo editorial earlier this week, which declared that the Drake prosecution "smacks of overkill."  The Drake case is finally on the front page of the main stream media (MSM) where it belongs.  Using the criminal justice system to punish whistleblowers is an affront to the First Amendment, and the MSM is finally standing up for freedom of the press.

According to the Post

the government may have to drop two Espionage Act counts that relate to information that Drake submitted to the Defense Department inspector general between 2002 and 2004 to buttress colleagues’ complaints about waste, fraud and abuse of a bungled NSA data-sifting program, Trailblazer.

After a years-long investigation, the Department of Defense Inspector General's investigation ultimately resulted in an audit vindicating Drake and the other whistleblowers.  It is outrageous that information lawfully provided to the Inspector General is being used in relation to criminal Espionage Act charges against Drake. Such complaints are supposed to be protected under the Inspector General Act of 1978:

[Drake] and his former NSA colleagues thought the complaints were confidential.

As the Post points out, the fact that the prosecution has had to withdraw exhibits signals the Justice Department's overkill:

The government’s decision to withhold certain documents may complicate prosecutors’ efforts to prove a violation of the act, suggesting that the government may have overreached in using an espionage law to target a suspected leaker.

I'm glad the MSM is paying close attention.  There are disastrous First Amendment implications if federal employees open themselves up to an Espionage Act prosecution if they, as Drake did, talk to a reporter about unclassified widespread government wrongdoing and report massive waste, fraud, mismanagement, and illegality though lawful whistleblowing channels to Congress and the Inspector General.

More on Drake is available on the Government Accountability Project website.  To support Tom Drake, please attend the trial, starting Monday in Baltimore.  Details and directions available here.

Originally posted to Jesselyn Radack on Thu Jun 09, 2011 at 05:57 AM PDT.

Also republished by Pink Clubhouse and The Amateur Left.

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