Feds Ridiculous Prosecution Of Whistleblower Thomas Drake Falling Apart

from the stay-strong dept

Thu, Jun 9th 2011 12:21pm — Mike Masnick

We've written a few times about the federal government's ridiculous and vindictive attempt to convict Thomas Drake of violating the Espionage Act and put him in jail for 35-years, all because he blew the whistle on some massively wasteful NSA spending.

If you haven't followed the case, Drake was part of a team that helped to develop a system that the NSA could use for its warantless wiretapping program. To prevent the system from being used to wiretap Americans (something the NSA is not supposed to do), the team also built in some protections to block out such taps on Americans. However, after 9/11, the NSA upper management decided to spend billions on a brand new system that would more broadly wiretap pretty much everyone without a warrant and without any such protections. That system was something of a failure and Drake and some others were upset that so much was wasted on such a bad system, when the NSA had a system that worked within the law. As part of being upset, he provided some info to a reporter at the Baltimore Sun concerning the financial failure of the system (but not anything classified about the warrantless wiretapping program itself).

As investigators were seeking to find out a source for a different report (to the NY Times), which did reveal the warrantless wiretapping, they investigated Drake and claimed to have found four "classified" documents that he had mishandled. Even that's misleading. Drake (and a few others) had (properly) filed a complaint with the Inspector General about NSA waste, and were told to keep copies of the report themselves, which included those files. One of the "classified" documents was even stamped "unclassified", but the government argues Drake should have known it was really classified. Other documents were declassified anyway months later. Drake's case is a clear example of a vindictive administration trying to hit back at whistleblowers by abusing the Espionage Act.

And now that case may be falling apart.

Earlier in the week, it was reported that, to avoid revealing secrets at the trial scheduled to begin next week, the government would use a code based on boxes and arrows to try to obfuscate any classified info, leading to complaints from Drake's team that the government seemed to want to hide important information that would help clear Drake. However, the government instead decided not to use that evidence at all, and people are beginning to realize that the entire case is crumbling. In fact, the feds are apparently now desperate to avoid actually going to trial and are offering up all sorts of plea bargains, including the latest: rather than face 10 felonies, Drake could agree to a misdemeanor and get no time in jail.

For someone facing potentially 35 years in jail, I can see how tempting that can be. But Drake has declared that he won't "plea bargain with the truth." It would be nice if he continues to stick up for what he believes is right, but I don't think anyone can rightly complain if he ends up accepting such a plea bargain. Unless you've been on the wrong end of a criminal lawsuit that could put you in jail for 35-years, it's difficult to complain about a guy taking a plea bargain that keeps him out of jail. Still, that doesn't mean we can't hope that he continues to fight this clear abuse of federal power against whistleblowers.

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Filed Under: censorship, obama, thomas drake, whistleblowing

20 Comments

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Anonymous Coward, 9 Jun 2011 @ 12:35pm

Where can we contribute funds for his legal defense?
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- U.S., 9 Jun 2011 @ 1:14pm
  
  Re:
  Where can we contribute funds for his legal defense?
  
  So you want to provide financial aid to an enemy of the United States, eh? Please post your address so that we may come have a little "visit" with you. By the way, I hear that Gitmo is lovely this time of year.
  
  -- The Government
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  - Ron Rezendes (profile), 9 Jun 2011 @ 3:29pm
    
    Re: Re:
    Bring it on GI Joe! I would love to see a few black Expeditions blown to pieces!
    
    Just wishful thinking actually, I have no means to do anything of the sort but it would be a spectacular news clip!
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  - Gwiz (profile), 9 Jun 2011 @ 6:22pm
    
    Re: Re:
    So you want to provide financial aid to an enemy of the United States, eh?
    
    Are you sure you are not an enemy infiltrator? That "eh" sounded a bit too Canadian for me.
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    - Lawrence D'Oliveiro, 9 Jun 2011 @ 10:43pm
      
      Re: Eh?
      That when you hear �eh�, you only think �Canadian�, I find a bit stink, eh.
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- Hephaestus (profile), 9 Jun 2011 @ 3:22pm
  
  Re:
  "Where can we contribute funds for his legal defense?"
  
  You can't, the federal prosecutor had a little talk with PayPal, Visa, and Mastercard. They no longer accept donations for his legal defense.
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quickbrownfox, 9 Jun 2011 @ 1:06pm

60 Minutes had an excellent report on this story recently.
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- Anonymous Coward, 9 Jun 2011 @ 1:47pm
  
  Re:
  Biased.
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- Vidiot (profile), 9 Jun 2011 @ 1:50pm
  
  Re:
  Excellent New Yorker piece, too, including the observation that the government has walked away from prosecuting far more egregious offenses when "friends" are involved. Also suggested that Drake's brand of whistleblowing... his persistence... may have had annoying overtones; some anecdotal mention of his past as a stickler for the tiniest everyday infractions... a profoundly rules-based "noodge". Not a criterion for prosecution, of course, but perhaps a gadfly anyone (in power) would love to swat.
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  - Bnesaladur (profile), 12 Jun 2011 @ 11:38am
    
    Re: Re:
    When the rules he is being a stickler about may be constitutional infractions or other illegal activities then more power to him. That is the trouble with any Intelligence Organization, that they believe that because they can redact information and make it classified, they can do whatever they what and when questioned just say its classified in the interests of national security and shut the case down. Of course the public just has to accept them at their word, a currency that holds little weight anymore due to many lies from them over a long period of time. Also being an annoying rules stickler is not a criterion for prosecution, termination of employ, or even swatting. In fact he likely has grounds for a civil action case against the NSA for defamation that will never see the light of a court room as it will be classified that this even took place.
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Anthony Biedenkapp, 9 Jun 2011 @ 1:08pm

Drake has a lot of testicular fortitude.
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NullOp, 9 Jun 2011 @ 1:17pm

America
I am ashamed to be part of an America that behaves in such a way.
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- Joe Publius (profile), 9 Jun 2011 @ 1:55pm
  
  Re: America
  I am proud to be part of an America that has people like Thomas Drake in it.
  [ link to this | view in chronology ]
  - Anonymous Coward, 9 Jun 2011 @ 4:33pm
    
    Re: Re: America
    and Bradly Manning.
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    - Anonymous Coward, 9 Jun 2011 @ 4:40pm
      
      Re: Re: Re: America
      and lets not forget about Ethan McCord, who managed to save those two children despite being commanded not to bother.
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      - Bnesaladur (profile), 12 Jun 2011 @ 11:53am
        
        Re: Re: Re: Re: America
        Where are all the people we are proud to be associated with, people who are on the bottom. These people, the ones we are proud to be grouped with, should be given the reins. Perhaps we could create a fourth stream of government, beside legislative, executive and judicial, that focuses on oversight of all the rest. Any group in the government currently trying to do so fails with such constancy that I would be embarrassed to count myself as part thereof.
        
        Very few of us do not love our country, in fact probably all here do, but our leadership has been a train wreck for years, maybe even decades. We need to realize that, and take action. Volunteer your time for the benefit of your town or country. If you are a lawyer, do some pro bono. If you have the option, join your volunteer fire department. Whatever it is, simple actions can have powerful effects on all, including yourself. And when you get the chance, argue against the laws you disapprove of and take part in your country like you are doing now. Stand strong for what you believe, and for your country.
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gyffes, 9 Jun 2011 @ 2:05pm

Damned gadlfies
.. hate when they're sticklers for every little thing.

Like, following the law.

Damn them.
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Christopher Gizzi (profile), 9 Jun 2011 @ 5:31pm

Settled
Looks like he did settle for the misdemeanor: http://www.washingtonpost.com/national/national-security/ex-nsa-manager-has-reportedly-twice-rejecte d-plea-bargains-in-espionage-act-case/2011/06/09/AG89ZHNH_story.html
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Capitalist Lion Tamer (profile), 9 Jun 2011 @ 6:07pm

So, that's how it works now...
One of the "classified" documents was even stamped "unclassified", but the government argues Drake should have known it was really classified.

His job description clearly specified that a qualified candidate would be a skilled "mental telepathist" with "20/20 foresight and hindsight."

The breakdown of classified documents is as follows:

[REDACTED]
Executive-level clearance only. (President and Classified Document Club members in good standing ONLY.)

TOP SECRET
Underrated 1984 comedy starring Val Kilmer. (Highly recommended.)

ULTRA SECRET
Top-level clearance only.(NSA executives; "friendly" Washington Post writers)

SECRET
Mid-top-level clearance only. (CIA executives; high-ranking military women seeking better perspiration control.)

ULTRA-CLASSIFIED
Mid-to-upper-tier military and career bureaucrats. (Due to an unfortunate closing of a loophole during defense budget cutbacks, no one is allowed to view or declassify these documents.)

CLASSIFIED [Post-2001 documents]
Same as ULTRA-CLASSIFIED except that loophole now allows modification/perusal/taking-it-home-for-the-night by career bureaucrats only.

CLASSIFIED [Pre-2001]
High-level security clearance needed. (Military, CIA, FBI, NSA, bureaucrats and various sympathetic filmmakers only.)

[CONV] CLASSIFIED
"Temporary" designation of CLASSIFIED documents currently undergoing declassification. While trapped in bureaucratic purgatory, all documents are to remain classified, unless:

a.) Requested by an upper-level bureaucrat or CIA/FBI/NSA equivalent, at which point it will be designated as ULTRA-CLASSFIED and forgotten in the trunk of the rental car at Dulles Airport; or

b.) Requested via the FOIA, at which point 80-90% of nouns, pronouns and a majority of the vowels will be hastily redacted with PERMANENT MARKER. (See supply cabinet. In case of emergency, break glass and fill out enclosed requisition form. Please allow 8-10 weeks for your order to be misplaced/discarded/rejected.)

[STAY] CLASSIFIED
San Diego. (No further data.)

UNCLASSIFIED
Surpisingly "CLASSIFIED." All documents marked UNCLASSIFIED and scattered carelessly about the offices/barracks like so many coffee table books/porno mags are hereby retroactively re-classified, subject to Subclause 31.1.(b) of "The All-New 2011 Sedition Act ('Drake's Law')".

All military personnel in possession of said classified UNCLASSIFIED documents are instructed to turn themselves in to the nearest military police and charge themselves with treason. All attendant military police should summarily place themselves under arrest for leaking said classified UNCLASSIFIED documents.

Under the same bylaws, all government personnel should surrender to the nearest House Un-American Activities Committee, which will require traveling to 1975 at the latest.
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Overcast (profile), 10 Jun 2011 @ 7:04am

"...violating the Espionage Act"

I suspect there are MANY politicians now you could bring up on charges of violating the Espionage Act as well.
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