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.
