Steven Aftergood: Handling of Drake Leak Case was “Unconscionable,” Court Said

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by Steven Aftergood

July 29th, 2011 

The government’s treatment of former National Security Agency official Thomas Drake was abusive and akin to acts of British tyranny in pre-Revolutionary War days, said Judge Richard D. Bennett at the July 15 sentencing hearing which concluded the Drake case, one of the Obama Administration’s record number of anti-”leak” prosecutions.  A transcript (pdf) of that hearing was prepared at the request of Secrecy News.

Mr. Drake was originally suspected of leaking classified information to a reporter and had been charged with ten felony counts, all of which he denied.  The prosecution was unable to sustain any of those charges, and the case was settled after Mr. Drake pleaded guilty to a misdemeanor charge of exceeding authorized use of a government computer.  He was sentenced (pdf) at the hearing to a year of probation and 240 hours of community service.

The hearing transcript is a gripping document, with moments of high dramatic tension and unusual poignancy.

Much of the tension arose from the recommendation of the relentless prosecutor, William M. Welch, that Mr. Drake should be fined an additional $50,000 to serve as a deterrent and to “send a message” to other government employees who might be inclined to follow in his footsteps.

Mr. Welch complained that Mr. Drake had “received a $10,000 prize for having been a whistleblower,” namely the Ridenhour award, which was presented to Mr. Drake in April 2011.

Mr. Welch said that Mr. Drake should therefore be fined at least $10,000 in order to repudiate and cancel whatever “profit” and public respect he had gained from his whistleblowing activity, in which he exposed questionable management practices at the National Security Agency.

“He shouldn’t walk away in the sense of a comparison between the fine and this award with any semblance of a notion that he’s profited in any way from his conduct,” Mr. Welch said. “At a minimum, the fine ought to be $10,000, but I would urge the court to impose the $50,000.”

But the judge wasn’t having it.

“There has been financial devastation wrought upon this defendant that far exceeds any fine that can be imposed by me. And I’m not going to add to that in any way,” he said decisively.

Judge Bennett further rebuked the government for its handling of the case.  From the time when Drake’s home was searched in 2007, it took two and a half years before Drake was indicted, “and then over a year later, on the eve of trial, in June of 2011, the government says, whoops, we dropped the whole case.”

“That’s four years of hell that a citizen goes through,” the judge said.  “It was not proper. It doesn’t pass the smell test.”

“I don’t think that deterrence should include an American citizen waiting two and a half years after their home is searched to find out if they’re going to be indicted or not,” Judge Bennett said. “I find that unconscionable. Unconscionable. It is at the very root of what this country was founded on against general warrants of the British. It was one of the most fundamental things in the Bill of Rights that this country was not to be exposed to people knocking on the door with government authority and coming into their homes. And when it happens, it should be resolved pretty quickly, and it sure as heck shouldn’t take two and a half years before someone’s charged after that event.”

Mr. Welch said he was unable to account for the chronology of the case.  “With respect to the timeframe, you know, I can’t explain that to the court.”

Judge Bennett praised all of the attorneys involved in the case, and singled out Mr. Drake’s public defenders, James Wyda and Deborah L. Boardman.

“Your representation of your client has been at the highest levels of professionalism and at the highest levels of legal competence,” he said.

“There are not two lawyers in the country who could have done a better job for you, Mr. Drake, than the two lawyers who represented you here in this case. And I think it’s been a great showing on behalf of the Public Defender’s Office, which is not the least bit of a surprise to this legal community. But to the extent it has become known in any sense nationally it is well deserved because the reputation of Miss Boardman and Mr. Wyda are at the highest level, and I commend both of you for an outstanding representation of your client,” Judge Bennett said.

“And Mr. Drake, as to that, this matter is closed and I wish you the best of luck in the rest of your life.”

COMPLETE Story HERE…

https://www.fas.org/blog/secrecy/2011/07/drake_transcript.html

[Information contained in BKNT E-mail is considered Attorney-Client and Attorney Work Product privileged, copyrighted and confidential. Views that may be expressed are those of the author(s) and do not necessarily reflect those of any government, agency, or news organization.]

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.”

CONTINUE READING Full Story HERE...

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...

CONTINUE READING Full Story HERE...

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

[Information contained in BKNT E-mail is considered Attorney-Client and Attorney Work Product privileged, copyrighted and confidential. Views that may be expressed are those of the author(s) and do not necessarily reflect those of any government, agency, or news organization.]