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The government's transparent attempt to save face in the collapse of its Espionage Act case against NSA whistleblower Thomas Drake is misleading.  Assistant Attorney General Lanny Breuer of the Criminal Division stated in a press release:

[I]n cases involving classified information, we must always strike the careful balance between holding accountable those who break our laws, while not disclosing highly-sensitive information that our intelligence agencies conclude would be harmful to our nation’s security if used at trial.

As a general proposition, this is true, but that is not what happened in the Drake case.  The real reason the case imploded is because the government was attempting to try him on information that it knew before it indicted him was unclassified, which should send chills down everyone's spine.

It felt like were were doing a freedom march rather than the perp walk when I accompanied former National Security Agency (NSA) official Thomas Drake to the courthouse yesterday to enter his honorable, dignified and truthful guilty plea.  

The case ended not with a bang, but a burp, when he pleaded guilty to a single misdemeanor count of "exceeding the authorized use of a computer," with a recommendation by the government of no jail time and no fine.  Mr. Drake did the noble and right thing: he pleaded guilty to what he had actually done.  He said all along that he never gave classified information to the press, but that he did engage in conduct (I consider it an act of civil disobedience) that merited an NSA administrative penalty (which is how identical conduct is normally treated at NSA), getting fired, or possibly some sort of misdemeanor.

But the mainstream media, while it universally agrees that this case collapsed because it was a gross overreach, unfortunately is buying into the government meme that it couldn't bring the case to trial because it would expose too much classified information.

This is false.  The first two Espionage counts involved information that was published on NSA's intranet and seen by thousands of people.  Count 1 was specifically marked UNCLASSIFIED.  Count 2 was DECLASSIFIED shortly after Drake was indicted, though the prosecution didn't tell that to the defense team for ten months.  The evidence underlying Counts 3, 4 and 5 consisted of information found in Drake's basement related to the Department of Defense Inspector General investigation of NSA, for which he served as the primary material witness and which ultimately validated the concerns of four other whistleblowers about NSA's gross waste, mismanagement and illegality regarding secret domestic spying programs.

(This also contradicts the derogatory statements by Matthew Aid, an NSA expert who has never met Drake, in The New Yorker and today's Baltimore Sun, that

Drake has a kind of Jesus mentality where [he's] right, and everybody else is wrong.
 Let me repeat: Drake was not a lone actor here.  He was a witness in support of a complaint filed by 3 other NSA officials and  1 House intelligence staffer who held the NSA portfolio.  And guess what??  The 5 of them were right and as for everyone else?  They didn't speak up.  

The government retroactively classified information in this case.  It tried to submit "substitutions" (allowed under the Classified Information Procedures Act for classified information) for information that not classified.  And it tried to make a "classified by inference" argument that, even though certain information was specifically marked UNCLASSIFIED, Drake should have known that it should have been classified.

The government's twisted strategy of using the Espionage Act to "send a message" to "leakers"--many of whom are really whistleblowers--is really a back-door way to create a Official Secrets Act while sending a chilling message to those who try to expose government ineptitude and illegality.  Be afraid.  And be really vigilant.

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Comment Preferences

  •  Retro vindication for you? (14+ / 0-)

    Our son is a criminal defense attorney and I am astounded by the prosecution's nebulous charges against his clients.  The latest charge is vague and alludes to the client's other "ways" to commit crimes w/o stating exactly what the "ways" are or were.  In one case, the Feds with held pertinent information from the defense until the trial was over and then was forced to under the FOI.  

    Anyway, it is great to see a 'good guy' win for a change, and rightly so.  Have Federal Prosecutors always acted so underhandedly or is this a post-Nixon mentality?

    •  It's patriot act trickle down. (7+ / 0-)

      More and more it's becoming "the law is whatever we say it is."

      "I never heard a corpse ask how it got so cold." - Richard, The Lion in Winter

      by divitius on Sat Jun 11, 2011 at 07:08:40 AM PDT

      [ Parent ]

      •  The Constitution doesn't have an expiration date. (5+ / 0-)

        The Patriot Act does, thankfully.

        The Canary in the Coalmine is available for purchase at

        by Jesselyn Radack on Sat Jun 11, 2011 at 09:17:13 AM PDT

        [ Parent ]

        •  Tell Congress. (1+ / 0-)
          Recommended by:

          Worse than useless.  I call THEM traitors to the Constitution and to America.

        •  Wrongly, Congress Critters... (1+ / 0-)
          Recommended by:

          ... keep renewing that idiotic unconstitutional and illegal "Patriot Act."

          There are no words available in the English language that can convey the depths of my disgust and contempt for the members of Congress who have voted in favor of the Patriot Act since day one when Dumbya and Dickie were in charge (thanks to an erroneous SCOTUS decision that basically appointed those two criminals).

          My disgust and contempt became greater when they also voted in favor of MCA '06 and FISA fiasco '08..., and those pieces of unconstitutional and illegal legislation have also been renewed.

          Unconstitutional and illegal legislation all needed instant repealing in their entirety a very long time ago, just as the various unconstitutional and illegal wars and mini-invasions should never have started, but once started.  We can't afford endless war.  We've already become a third-world nation, and I do not understand why Obama retained the Bushistas who continue the illegal and unconstitutional wars and occupations and start new ones with drone bombing into other countries.  These unconstitutional and illegal ambitions to create a militaristic empire aimed at world domination are going to get us shunned by people in other countries.

          Wrongly attempting to criminalize whistle-blowing for releasing UN-classified information, or actually criminalizing whistle-blowing based on lies, lies, and more lies is but the tip of the iceberg.

          We desperately need a whole new crop of Congress Critters who abide by their oath of office and actually abide by the constitution and laws of the land as they were prior to election day 2000.  All the additions since then need repealing.

          We've been living in a psychedelic waking nightmare since 2000, and I - for one - am damned tired of thinking someone used 1984 as a guide book to change our reality.  If there's an after-life, George Orwell is spinning in his grave.

          Excellent diary, Jesselyn.  Thank you for keeping us informed.

          I'm sick of attempts to steer this nation from principles evolved in The Age of Reason to hallucinations derived from illiterate herdsmen. ~ Crashing Vor

          by NonnyO on Sat Jun 11, 2011 at 02:16:20 PM PDT

          [ Parent ]

  •  It is interesting that some of our courts (11+ / 0-)

    DO work in the interest of justice.  The Bushco folks were working hard to fill up the benches with partisans who would toe the line.  It is good that some of those folks actually had a sense of what the law means.

    I am so disappointed in the President and the current Attorney General.  Why, in the name of all that matters, do we have two guys in office who ought to really have a good feel for how much good, ethical justice lawyering really means and yet turn their backs on true justice.

    And at a time when true civil rights violations are happening all over the place, they are turning their sights on people who have ethics, who have a sense of right and wrong.  People who actually give a damn are the ones they are targeting.

    I fail to understand why this should happen with a "pragmatic" president.

    boycott Koch = don't buy Northern TP

    by glitterscale on Sat Jun 11, 2011 at 06:32:14 AM PDT

  •  Broken link in a previous diary (1+ / 0-)
    Recommended by:

    Hi Jesselyn, I've been clicking on some of your old diaries and there's a broken link in Thomas Drake Encounters Attorney General Holder:

    Daniel Ellsberg, the first man charged under the Espionage Act with mishandling classified information recently noted that Drake's trial is to begin on June 13th, the 40th anniversary of when Ellsberg released the Pentagon Papers.

    (space in front of ellsberg)

    (From Antiwar Radio interview with Ellsberg last month, ok in original: )

    •  Have you heard... (1+ / 0-)
      Recommended by:

      ... how Mike Gravel got the Pentagon Papers into the Congressional Record?  Dan Ellsberg is part of the story.

      Seventeen of the funniest minutes on YouTube.  Ignore the first fifteen seconds when Goodman is commenting on the past segment.

      Mike Gravel - The Pentagon Papers

      We no longer have anyone brave enough to do this sort of thing about the Bushista years and how they bamboozled everyone regarding starting their illegal and unconstitutional wars and the rest of the illegal and unconstitutional laws they bamboozled Congress into passing.

      I'm sick of attempts to steer this nation from principles evolved in The Age of Reason to hallucinations derived from illiterate herdsmen. ~ Crashing Vor

      by NonnyO on Sat Jun 11, 2011 at 02:33:50 PM PDT

      [ Parent ]

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