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

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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