Saturday, May 21, 2011

Jail the Whistleblower! (The Curious Case of Thomas Drake)

UPDATE -- 10 JUNE 2011:
A critical moment in the United States’ case against former National Security Agency official Thomas A. Drake came a week ago Friday, when a federal judge ruled that the prosecution could not shield from public disclosure classified information it wanted to present as evidence.

So the prosecutors, rather than reveal what the NSA considered sensitive material, withdrew their proposed exhibits.

That decision effectively doomed the government’s effort to put Drake behind bars for as many as 35 years for unlawfully retaining classified information. As the prosecution crumbled, so went the government’s opportunity to turn Drake’s case into a cautionary tale for would-be leakers.

On Friday, Drake accepted lead prosecutor William M. Welch II’s offer to plead guilty to a single misdemeanor of misusing a government computer to provide information to an unauthorized person. Drake is expected to serve no prison time.

NSA leak trial exposes dilemma for Justice Department, Washington Post

OK, so the Washington Post can not bring themselves to say it: The government blew it. They've been chasing this guy Drake for quite a while, and they just now realized they could not proceed without revealing classified information? Nonsense. They had no case in the first place. Prosecutor Welch and his crew of Justice Department thugs used Drake to send a chilling message to future whistle blowers; and to advance their own reputations as fearless defenders of justice, motherhood, and apple-pie. And this is who they decide to take down? Drake? Fearless, my ass. The US prosecutors succumbed to their own petty arrogance -- they overreached. Cheers, Mr. Drake. ;)

That's the cry of the US Justice Department in the infamous case of Thomas Drake. Throw the bum in jail...for thirty-five years, for violation of the Espionage Act of 1917

Well, it sure seems like government lawyers are prosecuting Mr. Drake out of spite. Or, to put a chill on would be whistle-blowers who expose government wrongdoing. Especially wrongdoing on the part of our domestic intelligence, military-industrial, white-collar welfare apparatus. We do expend a lot of effort and treasure throwing people in jail in this country.

Here's a brief description of the history of his case, and Mr. Drake's alleged offenses from the discussion section of the Facebook page entitled, Save Tom Drake:
Tom Drake and the "Need to Know"
Have you heard of the phase “need to know”? Although rarely addressed in the Thomas Drake case, the need to know principle is at the heart of how information is shared, both classified and unclassified, inside (and outside) the government.

Need to know restricts the sharing of information to those who need the information to do their jobs. Need to know is not used “…to refuse others access to information they hold in an attempt to increase their personal power, prevent unwelcome review of their work, prevent embarrassment resulting from actions or thoughts, or to cover up illegal actions.” (Wikipedia)

Tom successfully practiced need to know throughout his 25-year intelligence career. However, in an environment of gross malfeasance, the need to know principle breaks down. Truth-tellers become the prosecuted. The innocent become the victims.

With close to a billion dollars wasted on a failed, illegal NSA program (Trailblazer) and when urged to remain silent by some of his peers, Tom spoke out. He first went to his superiors, then to congress, to the Department of Defense Inspector General, and finally to the media. He shared information only as allowed by law. He did not use the need to know principle to hide misconduct. He exercised need to know to alert Americans to taxpayer waste and to threats of their civil liberties.

Today Tom’s case has all the symptoms of a retaliatory prosecution – an overzealous prosecutor, prosecutorial selectiveness, an unequal application of the law, a draft conspiratorial indictment, unclassified information being treated as classified, retroactive classification, prejudicial procedural defects, slicing and dicing of the Espionage Act, using the act as a whipping stick on whistleblowers, judicial precedence setting, the silent witness rule, and on and on and on.

The motive for the prosecution of Tom is clear: NSA seeks retribution for its embarrassment; President Obama needs an example for his dislike of leaks.

Last year the DOJ charged Tom Drake with the willful retention of classified information, lying to federal investigators, and obstructing justice. If convicted, Tom faces 35 years in prison. His support bloggers have had a field day on the retention charge, especially considering the DOJ’s push to classify previously unclassified information and to redact unclassified documents. The retention charge is the load-bearing wall of the DOJ’s house of charges. If it collapses, the house of charges comes tumbling down.

Don’t you think the American people had a need to know, even a right to know about the NSA billion dollar fiasco? What about threats to their privacy? Do you think that Tom’s prosecution is retaliatory in nature? If you answered yes to any of these questions, please consider signing the petition below to support Tom, an award winning truth-teller.

Here's the Democracy Now! piece on Drake from May 18, 2011:

And here are the specific charges leveled by the Justice Department against Mr. Drake, from a post by Jesselyn Radack for the Government Accountability Project
I was just on Democracy Now! discussing the prosecution of whistleblower Thomas Drake, who used to be a senior executive at the National Security Agency (NSA). I'm glad people are finally paying attention to this case, thanks to Jane Mayer's explosive cover story in the New Yorker, which Glenn Greenwald referred to as the "must-read article of the month."

The government would have you believe that this is a case involving the disclosure of classified information to a journalist.  It is not.  It's a "retention" case about 5 innocuous pieces of information that Drake allegedly took home, if at all, by mistake. His real crime? Committing the truth by revealing gross waste, mismanagement and illegality at NSA.Let's get down to brass tacks.  Drake never leaked classified information to a reporter, or anyone, and is not CHARGED with "leaking" classified information. So, what is he charged with?:

Count 1 - a "Regular Meetings" document that appeared on NSA's intranet marked as UNCLASSIFIED;

Count 2 - a self-congratulatory "What a Success" document that appeared on NSA's intranet, which was declassified in July 2010 (but the prosecution didn't tell Drake this for 8 months);

Counts 3-5 - information that in whole or in part formed the basis of some of Drake's protected communication to the Department of Defense Inspector General as part of their investigation into NSA's gross waste, mismanagement and illegality related to a secret surveillance program;

Count 6 - obstruction of justice for allegedly impeding the Justice Department's pretextual "leak" investigation into the sources for the New York Times Pulitzer prize-winning article on warrantless wiretapping;

Count 7 - alleged "false statements" for telling the truth, namely, that he never gave the reporter classified information;

Count 8 - alleged "false statements" for telling the truth, namely, that Drake didn't bring any classified documents home;

Count 9 - alleged "false statements" for telling the truth, namely, that he only removed unclassified information from classified documents; and

Count 10 - alleged "false statements" for telling the truth, namely, that he never took handwritten notes that contained classified information.

"That's it??" I hear you saying as you scratch your head.


These charges should be easy to defeat, right?  Unfortunately, Thomas Drake has to do that in a trial where the government has tried to preclude mention of "whistleblowing," "overclassification" and published newspaper articles!  (Thankfully, the judge overruled the government on all three.) But now he has to contend with the government wanting to use a "silent witness rule" through which the judge and jury would use a special code to discuss the evidence but the public would have no clue what's happening, and wait for it . . . the government wants to use classification substitutions for information that is not classified.

Every step of the way this has been an uphill battle.  As the target of a federal criminal "leak investigation" (now closed) myself,  I know what a David vs. Goliath struggle it is to fight the government. Drake blew the whistle on government illegality and now he's the one being prosecuted. It's that simple.

Please sign the petition urging congressional oversight of this case.

Jesselyn Radack is Homeland Security & Human Rights Director for the Government Accountability Project, the nation's leading whistleblower advocacy organization. This post originally appeared in her Daily Kos column.
Yeah, so think about signing that petition mentioned above. I did.

After all..."Only Thing We Have to Fear Is Fear Itself..." (click here to listen to the apropos inaugural speech by FDR, which includes this quote, along with a lot of eerily timely sentiments. Give it a hearing.)

"He wondered, as he had many times wondered before, whether he himself was a lunatic. Perhaps a lunatic was simply a minority of one." George Orwell, "1984"

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