Travesty Of Thomas Drake Being Charged With Espionage Making Mainstream News

from the making-a-joke-of-government dept

Tue, May 24th 2011 3:59am — Mike Masnick

We already covered the excellent New Yorker piece by Jane Meyer about the government's ridiculous prosecution of whistleblower Thomas Drake under the Espionage Act, and it appears that story is getting much more mainstream attention as well. The Economist picked up the story and over the weekend 60 Minutes did a big piece on it that basically reiterates everything in Mayer's piece. Drake blew the whistle on a ridiculous bit of mismanagement by the NSA, in which they paid billions to defense contractors, rather than using a better, cheaper (and more legal) solution built in-house. His "crime" wasn't revealing any classified info -- because he did not. It was that in keeping the records for the (official and legal) complaint he filed with the Inspector General's office, he kept certain records in his home that were designated as classified. The Economist's summary covers the ridiculousness of charging him over these 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.

And that's it. At worst, he mishandled some documents, but even that's in question. It seems abundantly clear that the prosecution of Drake is because he annoyed his bosses at the NSA and embarrassed them by getting press coverage for the fact that they became enamored with the spin from some defense contractors, leading them to waste taxpayer money. And for that he gets charged with espionage, even as President Obama continues to insist that he values whistleblowers within the government. The Thomas Drake affair is shaping up to be yet another example of an executive branch out of control when it comes to abusing the power of its position. This is a problem that all Americans should be worried about, as both major parties seem more than happy to abuse power while in office.

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Filed Under: free speech, nsa, thomas drake, warrantless wiretapping, whistleblowing

22 Comments

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abc gum, 24 May 2011 @ 4:30am

The Thomas Drake Affair - coming to theaters this fall
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Call me Al, 24 May 2011 @ 4:36am

What frustrates me most about politicians...
What frustrates me most about politicians is that they can brazenly say one thing in public and allow something completely different behind partially closed doors. They clearly look at the situation and judge the risk of most voters or newspapers picking up on, and criticising and remembering, the falsehood as being pretty remote. Therefore they pay lip service to the morals they are supposed to uphold while busily chipping away at them for the sake of convenience.
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Yogi, 24 May 2011 @ 4:40am

Change you can be in prison for
Washington DC: from the seat of democracy to the height of hypocrisy.
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John Doe, 24 May 2011 @ 4:52am

Re: What frustrates me most about politicians...
There are still people who think Obama is the most open president there has ever been all because he said he would be transparent during his campaign. Most people don't pay attention after the election to see how things actually turn out.
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Anonymous Coward, 24 May 2011 @ 4:59am

"...President Obama continues to insist that he values whistleblowers within the government"

Yes, they are very valuable. There are a few bounties on their heads.
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Tom The Toe, 24 May 2011 @ 6:09am

No Freedom Here
Another great example of Freedom of Suppress.
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Greg G (profile), 24 May 2011 @ 6:25am

Whistleblowers...
Yea, Obama values whistleblowers, so that the administration can find out where the problems are. Once they pinpoint problem areas, they can now cover them up easier and discredit the aforementioned whistleblower.
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PrometheeFeu (profile), 24 May 2011 @ 6:27am

Maybe winning an election should automatically result in your indictment for deceiving the public and abuse of power. I mean, we could wait until evidence of crimes surfaces, but we all know it will so let's just cut the middle-man. Go directly to jail. Do not pass the White House. Do not collect campaign contributions.
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Call me Al, 24 May 2011 @ 6:49am

Re:
Reminds me of a bit in the Terry Pratchett book Last Continent. The leader of the country conducts all his business from jail. He was put there upon being elected as people said it saved hassle later.
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Jess Radack, 24 May 2011 @ 6:55am

Please sign the petition on Drake's behalf
http://news.change.org/stories/why-thomas-drake-is-not-an-enemy-of-the-state
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Anonymous Coward, 24 May 2011 @ 7:00am

This is a problem that all Americans should be worried about, as both major parties seem more than happy to abuse power while in office.

New political party: the Transparency Party. If elected, there wouldn't be any more whistleblowers, because there wouldn't be any more government secrets. This would have the side-benefit of slightly boosting the economies of several other countries, who would no longer have to pay exorbitant fees to spies to learn said secrets.
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PrometheeFeu (profile), 24 May 2011 @ 7:09am

Re: Whistleblowers...
Cover up is such a strong word for toss in jail and torture.
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PrometheeFeu (profile), 24 May 2011 @ 7:11am

Re:
Yeah right... And then politicians will do what they say. Wait... Shoot! I can't use that one when we're actually talking about politicians lying.
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Will Sizemore (profile), 24 May 2011 @ 7:38am

I wish I had time to read all the comments and the full story, but I don't want to be late for work.
The Department of Defense has a Fraud, Waste, and Abuse hotline. Mr. Drake's office is sure to have a safe. Mr. Drake SHOULD HAVE kept copies in a safe at work. He should have kept copies in his email, scanned-in if necessary. He should have reported it without the documents but referred to the documents that were classified. I think there is also an email address at all classification levels, for Fraud, Waste, and Abuse and I hope that we all receive training on this in the near future, all across the government and into the contracting world.

He will likely not be able to obtain a clearance again, even if the courts clear him of any wrong doing. In the world of government contracting, this doesn't surprise me. Fortunately, NOT ALL companies are like this. Some even take the fall for government mismanagement. All are required to have their internal fraud, waste, and abuse reporting policies too.

Mr. Drake isn't the same as Bradley Manning, though both are accused of roughly the same thing. At best, Mr. Drake exercised poor judgement, but we don't know, and probably never will know because the matter has been deemed classified, whether or not that is true. He may not have had any other venue with which to make his report.

Sadly, though, this sort of thing happens far more than most people know. The way we do contracting isn't perfect, but normally the moneys lost aren't as much an issue like they are now with our budget concerns and repeated threats of government shut downs.
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Michael Lockyear, 24 May 2011 @ 7:44am

Its only torture if they die or the organs fail...
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Anonymous Coward, 24 May 2011 @ 8:12am

Not that it will change anything of substance contained here, I would like to note that the 60 Minutes presentation made no claim I can recall that the contractors who worked under contract from the NSA were claimed to have been doing something illegal. What the Director of the project did note is that the NSA decided to pursue a more robust product having a wider range options and functinality. Apparently this proved to be an unwise move on the part of the NSA because it made successful completion of the development phase significantly more difficult, if not impossible, and resulted in the project being cancelled.

This is not at all an unusual occurrence in complex projects attempting to push technical boundaries to their limits.
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The Infamous Joe (profile), 24 May 2011 @ 9:18am

Re:
but normally the moneys lost aren't as much an issue like they are now with our budget concerns and repeated threats of government shut downs.

Did it ever occur to you that if we paid attention to the 'moneys lost' that we wouldn't be in a place 'like we are now'?
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harbingerofdoom (profile), 24 May 2011 @ 11:39am

Re: Re: What frustrates me most about politicians...
take my tack & tell your friends relatives and the homeless bums on the street.... remind them of these very incidents and beg them like hell to stop voting for the idiots that keep getting re-elected.
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EL DRUDE, 24 May 2011 @ 11:36pm

DRAKED OVER THE COALS!
A classic case of being DRAKED over the Coals!! Get set to enter the DRACON as we move in more into more GOVERNMENT OVERSEERSHIP.
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Go hard or Go home, 25 May 2011 @ 10:55pm

woah...
His mishandling of Classified should result in him being punished... no matter what you are not to remove anything classified without authorization. He submitted to IG and FWAP, and he could have even locked the crap in his desk with no punishment. However, no matter what the law was broken. I dont think he should get anything more than the minimum punishment however. Also many gov agencies use money for research to push the boundaries of technology only to lose money in failure, if they didnt we'd still be without internet mind you ;)
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decora (profile), 29 May 2011 @ 5:17pm

Re: woah...
1. He did not mishandle classified information. There are 5 counts that each refer to a single document.

One of the documents is clearly marked UNCLASSIFIED - the government claims he should have known it was classified

Several other documents were classified -after he was indicted-. It's called "retroactive classification", and it has been used before in bogus Espionage cases, especially Wen Ho Lee (who later won a million dollar+ lawsuit against the government).

On top of all this, the portion of the Espionage Act that he is charged with doesn't even use the word 'classified', it only talks about 'national defense' information. What is that? Good question - there is no hard, fast definition. The jury has to decide at trial.

So why does the government keep harping on the word 'classified'? good question.
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decora (profile), 29 May 2011 @ 5:28pm

Re:
Mr Sizemore

I would heartily encourage you to dig into the story more deeply. I think you would find it very interesting.

The method you suggest, of keeping documents in a safe at work, is in fact, exactly what Wen Ho Lee did. He kept documents in secure places at his work. Unfortunately for him, the government did not think his places were secure enough, and they also (like Drake) decided to retroactively classify a bunch of material he had and declare he was committing Espionage. Your method, IMHO, does not guarantee against prosecution. The Espionage Act section he is charged under refers to 'retaining' information - keeping it in your safe at work is 'retention', as Wen Ho Lee discovered.

Drake knew he would probably be fired. He describes this in the Mayer article and elsewhere. He felt that he needed to stand up for the law and for the taxpayers, and that this was more important than his career. He took many precautions but he also knew some of the risks. He just didn't imagine that the Executive branch would spend millions of dollars chasing down the Tamm / NY Times leak on warrantless surveillance, and somehow wind up at his door. Drake and his associates were targeted because they worked on an Inspector General complaint in 2002. Drake later gave unclassified non-sensitive information to a reporter. This is why he was targeted, not because he violated any law.

Mr Drake and Bradley Manning are, in fact, charged with almost precisely the same piece of legal code. Subparagraph (e) of section 793 of Title 18 of the US Code. Drake is charged with 'retention' of information while Manning is charged with 'delivering' information 'related to the national defense'. The funny thing about this particular subparagraph is that it was created in 1950 as part of the McCarran Internal Security Act, which was shoved through during the Red Scare era. President Truman vetoed it but Congress overruled him.

Manning has 34 counts against him; only a few of them are for allegedly violating the Espionage Act. One of those is for leaking the Collateral Murder video.

If he is convicted, that will become precedent - leaking gun camera footage to the media will be placed up there with what Aldrich Ames and Robert Hanssen did. If Drake is convicted, there will be more precedent. Discussing unclassified information with a reporter could get your house raided, your documents 'retroactively classified', and get you 35 years in prison.

Imagine what effect this will have on the freedom of press.
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