The Washington Post has another editorial critical of the prosecution of NSA Whistleblower Thomas Drake. Last week's editorial said that the Drake prosecution "smacks of overkill."
This week, the Post drills down on the Justice Department's glaring defeat in agreeing to let Drake plea to a single misdemeanor with no jail time and no fine when he was originally facing decades in prison for charges under the Espionage Act:
[T]he yawning gap between the original charges against Mr. Drake and the plea bargain is not only an embarrassment for the Justice Department but demonstrates the extent to which it overreached.
Just as important, it focuses on the fact that there's no meaningful whistleblower protection for national security and intelligence employees. Drake has been the model of "responsible" (as defined by the government) whistleblowing. He went to Congress and the Inspector General, the former of which did nothing, and the latter of which vindicated his concerns and then double-crossed him.
The case against former NSA official Tom Drake ended not with a bang but a burp.
Drake was set to go on trial today for grave charges under the Espionage Act--ironically on the 40th anniversary of the release of the Pentagon Papers by the first man to be prosecuted under the Espionage Act for "mishandling classified information": Daniel Ellsberg.
WaPo hits the nail on the head regarding how the government got itself into this mess: intelligence community whistleblowers have no meaningful whistleblower protections, and the proper legal channels--which Drake used exactly as they were meant to be used--failed to actually change anything within NSA.
The Drake case should serve as a reminder of the importance of giving government employees, especially those who work in areas that touch on national security, a clear and lawful path to allege malfeasance and abuse. . . [Drake] filed a complaint with the Defense Department’s IG, which validated much of his criticism. Yet little came of the investigation, which is what prompted Mr. Drake to turn to the press.
The Inspector General vindicated Drake's concerns and those of the four original whistleblowers, but immediately classified the Report, which remains secret today--6 years later--despite references to a redacted version in court papers and FOIA requests from my organization, the Government Accountability Project, and multiple media outlets. To add insult to injustice, the Inspector General sppears to have sold out Drake and the other whistleblowers by turning over their names--which by law are supposed to be protected--to the Justice Department for its pretextual "leak investigation" into the sources for the Pulitzer Prize-winning New York Times article that exposed warrantless wiretapping. Note: Neither the IG complainants nor Drake were sources for the New York Times article.
The Washington Post recommends that:
Congress and the administration should work to strengthen the tools and independence of the IGs, especially those in the intelligence communities. The administration should also quickly fill the 10 IG vacancies, including those in the Justice, Homeland Security and State departments.
The Whistleblower Protection Enhancement Act would provide such desperately-needed protections.
The Justice Department's spin on its ungraceful nosedive from the Espionage Act to a single misdemeanor is that abandoning the Espionage Act charges and letting Drake plea was needed to protect national security because the case was "too classified to try." Assistant Attorney General Lanney Breuer said in a Justice Department press release:
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
Funny,
a year ago, when Drake was indicted, AAG Breuer himself told us that going forward with the case against Drake using the Espionage Act was necessary to protect national security:
Our national security demands that the sort of conduct alleged here . . . be prosecuted and prosecuted vigorously.
Our national security is too important for the Justice Department to use it as an excuse when its ill-conceived prosecutions of whistleblowers tank.
WaPo hits the Justice Department twice today. Another article details the problems and botched cases plaguing Justice Department's public integrity section. No surprise that former Public Integrity Section head (William Welch II) and Public Integrity employee (John Pearson) were prosecuting Drake.
Full disclosure: I am one of Drake's attorneys (on whistleblower issues), but am concerned about the constitutional, transparency, good-government, and First Amendment implications of this case beyond my advocacy for Drake.
UPDATE: Stephen Kohn has an Op-Ed in today's New York Times, which explains the historical protections of whistleblowers and the continuing need to make sure our public servants can safely report government wrongdoing:
It is no surprise that honest citizens who witness waste, fraud and abuse in national security programs but lack legal protections are silenced or forced to turn to unauthorized methods to expose malfeasance, incompetence or negligence.
Instead of ignoring and intimidating whistle-blowers, Congress and the executive branch would do well to follow the example of the Continental Congress, by supporting and shielding them.