NSA employee accused of leaking information sentenced to probation

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baltimoresun.com

By Tricia Bishop, The Baltimore Sun

9:12 PM EDT, July 15, 2011

Thomas Andrews Drake, the former NSA employee accused of felony espionage but convicted of a misdemeanor computer violation, was sentenced Friday in Baltimore's federal court to 240 hours of community service and one year's probation.

It was an abrupt end to a lengthy case that became a rallying point for both free-speech advocates and those seeking to plug media leaks. It had also threatened to imprison Drake, who was accused of retaining classified information to give to a Baltimore Sun reporter, for up to 35 years before a surprising plea deal was struck on the eve of trial last month.

This has been "an extraordinarily difficult ordeal for me, and [it caused] tremendous pain [for] my family and friends and colleagues," Drake, 54, told the court in a quiet voice.

In delivering the sentence, U.S. District Judge Richard D. Bennett had harsh words for the government, calling it "unconscionable" that Drake and his family were dragged through "four years of hell" only to have prosecutors ultimately back down on all felony charges. 

He refused to impose a fine on Drake and warned the Justice Department that if the evidence doesn't support the charges, prosecutors need to act swiftly in making amends. 

"What kind of message is sent by the government when the government dismisses a 10-count indictment?" Bennett asked. "If the executive branch of the government doesn't provide an explanation, it's up to the judicial branch to note the impropriety of it."

After the sentencing, Drake said he was tired and looking forward to rebuilding his life. "I paid a very high price as a public servant for choosing my conscience over my career and blowing the whistle on government wrongdoing," he said. 

FBI agents searched his Glenwood home in November 2007, but he wasn't indicted — on 10 charges of retaining classified information, obstruction of justice and making false statements — until April 2010. Then, days before his scheduled June 13 trial, prosecutors offered him a chance to plead guilty to "exceeding the authorized use of a computer," a misdemeanor.

Drake was never charged with leaking, though it was a constant subtext to his criminal case, which came to symbolize an increasing government intolerance toward the disclosure of unauthorized information. 

Five alleged leakers have been pursued under the Espionage Act by President Barack Obama's Justice Department — more than all previous administrations combined, though two cases, including Drake's, were carried over from the Bush years.

Drake's case was built on a "house of cards, and it collapsed beneath the weight of truth," Jesselyn Radack, an attorney and director at the Government Accountability Project, which advocates for whistle-blowers, said after the sentencing. 

She and others fought for Drake's freedom through a media campaign that included interviews with The New Yorker and "60 Minutes" and the circulation of grass-roots petitions, along with a contingent of bloggers who repeatedly called the charges against Drake a stretch. 

While prosecutors described Drake as ego-driven, he was often portrayed by sympathizers as an honest, patriotic man, and even won a $10,000 Ridenhour prize in April for truth-telling.

Court documents filed by his federal public defenders, Jim Wyda and Deborah Boardman, claim that Drake believed he was protecting his country when he told The Sun reporter — identified in court documents as Siobhan Gorman, who now works for The Wall Street Journal — about allegedly wasteful programs at the Fort Meade intelligence agency. 

Gorman, who wrote a series of award-winning articles about NSA mismanagement and programmatic problems for The Sun in 2006 and 2007, declined to comment through a Journal spokeswoman. 

"In the end, I was just being an American who simply stood up as a public servant in defense of truth, justice and our Constitution," Drake said after the sentencing. 

The criminal case against him was his first "brush with the law," according to his attorneys, who described him in a 17-page sentencing memorandum as living an "exemplary life" dedicated to hard work in the public interest. 

Friends and family "herald his honesty and patriotism, and laud his commitment to family, citizenship and the ideals of the Constitution," the lawyers wrote.

Drake grew up in Texas and Vermont, where he attended the second and third grades in a one-room schoolhouse. 

He went to the Burr and Burton Academy in Manchester for high school, where his father, a World War II veteran, taught history. His mother was a secretary to author Pearl S. Buck.

A former Burr and Burton classmate described Drake in a letter to the editor, as a "quiet, kind and thoughtful guy." 

In 1979, when he was 22, Drake enlisted in the Air Force — the same military branch in which his father served — and took a special interest in German, learning the language and becoming an Airborne Voice Processing Specialist, who translated and analyzed intercepted communications.

He and his young family were stationed in England during the early 1980s, and moved to Arizona in 1985, where he flew on electronic warfare missions. His service evaluations call Drake an "outstanding airman" with "unlimited potential." He is called "mature and capable," "directly responsible for [his] unit's success," and was selected as an instructor of the year. 

A fellow German linguist, who has known Drake for 20 years, said in a letter to the court that Drake was "the straightest arrow I have ever known," who's never even tried marijuana. "He follows the rules," the man wrote. 

Drake earned several degrees while enlisted, including a bachelor's degree from the University of Maryland, Europe. He was honorably discharged in 1989. He and his family moved to the Washington area, where he worked for several consulting firms and defense contractors, primarily dealing with government NSA contracts, and the U.S. Navy Reserves. 

In late 2001, Drake began working for the NSA directly as a senior executive in signals intelligence. 

 

"Tom chose to work for the government because he felt that it was the best way he could make a positive difference," a former NSA colleague wrote in a letter to the court. 

Drake held a Top Secret security clearance and worked at NSA's Fort Meade location until the summer of 2006, when he took a teaching assignment at the National Defense University. He stayed there until late November 2007, when the NSA suspended his security clearance. 

According to the indictment against him, Drake had already reached out to Gorman by then, saying he was referred to her by "someone we both knew" — identified in court documents as former congressional staffer Diane Roark, who once had NSA oversight while working for the House Permanent Selection Committee on Intelligence. 

In a court document filed this week, prosecutors claim that Drake was obsessed with Roark, who retired in 2002, and had been feeding her information since 1999. He agreed to talk to Gorman to impress Roark, they claimed. 

Roark could not be reached for comment Friday, and Drake declined to discuss the government's allegations after the sentencing. 

The case against him started to unravel in the week before the June 13 trial date, when prosecutors chose to withdraw certain classified exhibits. Drake pleaded guilty to the much lesser charge of unauthorized computer use on June 10.

"What he pled to is really theft," prosecutor William M. Welch II said in court, asking that Drake be forced to pay a $50,000 fine along with probation and community service. 

But Judge Bennett said the financial toll has already been severe. 

Bennett chastised him for exercising poor judgment and being careless, and ordered Drake to perform his community service at Fort Detrick in Frederick. He commended all attorneys, particularly the public defenders, and again voiced concerns about the duration of the case.

Afterward, Drake said he would have more to say about the ordeal in the months to come. 

"I now look forward to getting my life back, so I can live free again knowing that freedom is never free," he said. "It requires eternal vigilance." 

tricia.bishop@baltsun.com
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www.baltimoresun.com/news/maryland/bs-md-thomas-drake-sentencing-20110715,0,7628749.story

 

Legal Trouble in SpyLAND...

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[ed.note: TWO NSA-related articles below. Various Legal scholars cited.]

NSA leak trial exposes dilemma for Justice Department

By Ellen Nakashima and Jerry Markon, Published: June 10, 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. 

“This is a just result,” said Debbie Boardman and Jim Wyda, Drake’s attorneys, in a statement. “Tom Drake should never have been charged under the Espionage Act. Tom never intended to harm his country. And he didn’t.”

The Drake case exposes a fundamental dilemma in prosecutions involving national security: How do you prove that a leaker released sensitive information without discussing that information in public? The case also raises the question of whether the Obama administration, which has brought more leak-related prosecutions than any previous administration, is overreaching in its desire to discourage leaks.

“There’s a real trade-off for the government, in which prosecuting may be more harmful to the nation’s interests than in not being able to prosecute,” said Geoffrey Stone, a University of Chicago constitutional law expert, referring to the balancing act between protecting classified information and a defendant’s right to a fair and open trial.

“The two goals are inherently in conflict,” said Barry J. Pollack, a lawyer defending a former CIA official, Jeffrey Sterling, in another leak-related prosecution. “A lot of these cases end up imploding because of that tension.”

The sudden collapse of the Drake case after years of preparation calls into question whether the Justice Department accurately assessed the likelihood of prevailing at trial, analysts said.

“It wasn’t a strong case to begin with,” said Steven Aftergood, a national security expert with the Federation of American Scientists. “Even the most basic facts, such as whether the documents in question were classified, were in dispute. So the government was beginning from a difficult position.”

The prosecution asked U.S. District Judge Richard Bennett to allow it to replace classified references with unclassified substitutions, but the judge said to do so would harm Drake’s ability to defend himself.

“These are tough cases by their very nature, but it is an important principle that people who have access to classified information follow the law and the agreements they signed to protect classified information,” said Laura Sweeney, a Justice Department spokeswoman.  

The Sterling case may illustrate other hurdles. The prosecution, led by Welch, is seeking to compel New York Times reporter James Risen to testify about his relationship with Sterling in order to establish Sterling was the source of classified information that appeared in his book.

“It seems they are unable to make their case without taking the extreme step of subpoenaing a reporter,” Aftergood said. “So the case is morphing into an assault on the press.”

The judge in that case has quashed one subpoena of the reporter. He is expected to oppose the government’s effort to force him to testify...

“Anytime you set out to prove 10 felonies and you end up with one misdemeanor, you’ve overreached.”

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baltimoresun.com

Drake pleads guilty to misdemeanor in NSA espionage case - Espionage charges to be dropped next month

By Tricia Bishop, The Baltimore Sun

8:02 PM EDT, June 10, 2011, 2011

Years of government pursuit came to an end Friday when former NSA employee Thomas Drake pleaded guilty to one misdemeanor count of "exceeding the authorized use of a computer" — a quiet conclusion to an aggressive espionage case.

Drake, who warned government investigators about wasteful National Security Agency programs, was indicted last year for passing information to a Baltimore Sun reporter in 2006 and 2007.

He could have received up to 35 years in federal prison under a combination of criminal charges, including violation of the Espionage Act, yet he was never charged with leaking classified information. The deal came together as public pressure for leniency mounted and the June 13 trial date neared.

"It's breathtaking, and a week ago, I would have said it was impossible," said Steven Aftergood, who studies government secrecy for the Federation of American Scientists. "I expected the trial to begin on Monday, and a last-minute reversal like this is stunning. What it tells me is that the government miscalculated the strength of its own case."

The Department of Justice said it negotiated the plea in part to avoid having to release classified information through the trial.

"We must always strike the careful balance between holding accountable those who break our laws, while not disclosing highly sensitive information," Assistant U.S. Attorney General Lanny A. Breuer said in a statement.

Drake, who declined through a lawyer to comment, could receive a maximum of one year in federal prison at his July 15 sentencing in U.S. District Court, though prosecutors said Friday that they will not oppose a "noncustodial" sentence — meaning one that does not include prison time.

Still, Drake's life is vastly changed, said Jesselyn Radack, a consultant on the case and a director at the Government Accountability Project, which advocates for whistle-blowers. His intelligence career is over, his finances are drained and he is personally spent, she said.

Drake's Espionage Act case, which began under the Bush administration and continued under President Barack Obama, is one of five being pursued by the federal government in court, and part of a larger strategy to shut down unauthorized disclosures of information. But many said the Drake case was an overreach.

"This [case] should never have been brought," said James Bamford, who wrote a book on NSA spying failures and was a consultant on Drake's criminal case. He declined to comment further, concerned about making public statements before sentencing.

Drake has had his say in The New Yorker and on "60 Minutes." Some NSA analysts and various advocacy groups have also taken up his cause, blogging about case developments, pointing out apparent flaws and circulating petitions asking for dismissal of the charges.

"He owes a massive debt of gratitude to the Fourth Estate, which really went to bat for him," along with his federal public defenders, said Matthew M. Aid, who's written one book on the NSA and just completed another about Obama's relationship with the intelligence community, due out early next year.

Aid said he interviewed several of Drake's supervisors for the book and concluded that Drake has a kind of "Jesus mentality where [he's] right, and everybody else is wrong," explaining Drake's assumption of the role of whistle-blower.

Drake and several others complained of waste in an NSA antiterrorism technology program called Trailblazer in 2002 to the Department of Defense inspector general. And Drake said in court filings that he later discussed NSA issues with Sun reporter Siobhan Gorman, who now works for The Wall Street Journal. Drake said he never gave Gorman classified documents, however.

Gorman published a series of articles in The Sun about NSA mismanagement and problematic programs, including Trailblazer...

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www.baltimoresun.com/news/bs-md-nsa-drake-guilty-20110609,0,3734349.story

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