Thomas Andrews Drake
Encyclopedia
Thomas Andrews Drake is a former senior official of the U.S. National Security Agency
(NSA), decorated United States Air Force
and United States Navy
veteran, computer software
expert, linguist, management and leadership specialist, and whistleblower
. In 2010 the government alleged that he 'mishandled' documents, one of the few such Espionage Act cases in U.S. history. His defenders claim that he was instead being persecuted for challenging the Trailblazer Project
. He is the 2011 recipient of the Ridenhour Prize for Truth-Telling
.
On June 9, 2011, all 10 original charges against him were dropped. He rejected several deals because he refused to "plea bargain with the truth". He eventually pleaded to one misdemeanor count for unauthorized computer access; Jesselyn Radack
of the Government Accountability Project
, who helped represent him, called it an act of "Civil Disobedience
"
veteran and his mother a secretary for Pearl S. Buck
. He entered the U.S. Air Force in 1979. He became an Airborne Voice Processing Specialist, with a fluency in German
, and went on ELINT (electronic intelligence) missions. He left the Air Force in 1989. He was also in the U.S. Navy, where he analyzed intelligence for the National Military Joint Intelligence Center. According to the Washington Post, he also at one time worked with the CIA. In 1989 he began work as an NSA contractor, evaluating software. He worked on projects like JACKPOT and LIBRARIAN. He became an expert in the quality-testing of software and worked on a system for measuring the quality of computer code at the NSA. He also continued his academic studies.
In 2000 Drake was employed as a software systems quality specialist and management and information technology consultant for Columbia, Maryland
, based Costal Research & Technology Inc. (CRTI), a wholly owned subsidiary of Alexandria, Virginia
, based Computer Systems Management, Inc.(CSMI). In late 2001 he went to work at the NSA as a full time employee at the Signals Intelligence Directorate
at Fort Meade, Maryland
. In 2002, he became a Technical Director for Software Engineering Implementation within the Cryptologic Systems and Professional Health Office. In 2003, Drake became a Process Portfolio Manager within NSA's newly formed Directorate of Engineering
. He held a Top Secret security clearance
. During the congressional investigations into 9/11, he testified about NSA failures. In 2006 he was reassigned to the National Defense University
, where he became the NSA Chair and an Assistant Professor of Behavioral Sciences within the Industrial College of the Armed Forces
(ICAF) He was forced to leave the NDU in 2007 when his security clearance was suspended and resigned from the NSA the next year. He then went to work at Strayer University
but was forced from that job after his indictment of April 2010. He found work at an Apple store. He then founded Knowpari Systems, a consulting firm.
In 2011, Drake was awarded the Ridenhour Prize
for Truth Telling.
and the ThinThread
project. He became part of the "minority" that favored ThinThread for several reasons, including its theoretical ability to protect privacy while gathering intelligence. Trailblazer, on the other hand, not only violated privacy, in violation of the Fourth Amendment, USSID 18, and other laws and regulations, it also required billions of dollars, dwarfing the cost of Thinthread. Drake eventually became "disillusioned, then indignant" regarding the problems he saw at the agency. Circa 2000 NSA head Michael Hayden chose Trailblazer over Thinthread; Thinthread was cancelled and Trailblazer ramped up, eventually employing IBM
, SAIC, Boeing
, CSC
, and others.
Drake worked his way through the legal processes that are prescribed for government employees who believe that questionable activities are taking place in their departments. In accordance with Whistleblower protection laws such as the Intelligence Community Whistleblower Protection Act, Drake complained internally to the designated authorities: to his bosses, the NSA Inspector General, the Defense Department Inspector General, and both the House and Senate Congressional intelligence committees.
He also kept in contact with Diane S. Roark, a staffer for the Republicans
on the House Intelligence Committee
of the U.S. Congress (the House committee responsible for oversight of the executive branch's intelligence activities). Roark was the "staff expert" on the NSA's budget; they had met in 2000.
In September 2002, Roark and three ex-NSA members, Binney, Wiebe, and Loomis, filed a DoD Inspector General
report regarding problems at NSA, including Trailblazer. Drake was a major source for the report, and gave information to DoD
during its investigation of the matter. Roark also went to her boss at the House committee, Porter Goss. She also attempted to contact William Rehnquist
, a Supreme Court justice. She got no response from either.
By 2003, the NSA IG had declared Trailblazer an expensive failure. It cost more than 1 billion dollars.
In 2004, the DoD IG produced a final report of its investigation that had been prompted by Roark & the others in 2002. The report basically agreed with their assertions and found very serious flaws at NSA. For a time, the NSA was even banned from starting projects over a certain size, for fear it would waste the money. However, there were no plans to release this DoD IG report to the public at the time.
Jane Mayer
, in her New Yorker article of 2011, writes that Drake felt the NSA was committing serious crimes against the American people; on a level worse than what president Nixon had done in the 1970s. He reviewed the laws regarding disclosure of information, and decided that if he revealed unclassified information to a reporter, then the worst thing that would happen to him was probably that he would be fired.
In November, 2005, Drake contacted Siobhan Gorman, of The Baltimore Sun
newspaper. Drake began communicating with Gorman, sending her emails through hushmail
and discussing various topics. He claims that he was very careful not to give her sensitive or classified information; it was one of the basic ground rules he set out at the beginning of their communication. This communication occurred circa 2006. Gorman wrote several articles about waste, fraud, and abuse at the NSA, including articles on Trailblazer. She received an award from the Society of Professional Journalists for her series exposing government wrongdoing. Judge Richard Bennett later ruled that "there is no evidence that Reporter A relied upon any allegedly classified information found in Mr. Drake's house in her articles".
. None of these people were charged with any crimes. In November 2007, there was a raid on Drake's residence. His computers, documents, and books were confiscated. He was never charged with giving any sensitive information to anyone; the charge actually brought against him is for 'retaining' information . The FBI tried to get Roark to testify against Drake; she refused. Reporter Gorman was not contacted by the FBI.
Drake initially cooperated with the investigation, telling the FBI about the alleged illegality of the NSA's activities. The government created a 'draft indictment' of Drake, prepared by prosecutor Steven Tyrrell. It listed charges as "disclosing classified information to a newspaper reporter and for conspiracy". Diane Roark, Binney, Wiebe, and Loomis (the complainants to the DoD IG in 2002) were also allegedly listed as "unindicted co-conspirators". In 2009 a new prosecutor came on the case, William Welch II, and changed the indictment. Some charges were removed, as was any naming of 'co-conspirators'. The new case only contained charges against Drake.
Prosecutors wanted Drake to plead guilty, but he refused. He believed that he was innocent of the charges against him. The government wanted him to help prosecute the other whistleblowers. He refused this as well. He later explained his motivations to the Ridenhour Prizes organization:
on the following charges:
The indictment
contains many other allegations; most of them do not relate to the actual charges against him. He was not specifically charged with unauthorized disclosure of classified information, nor was he charged at all under , the "SIGINT" statute. The indictment gives details about his communications with Roark and with Gorman, but he is not charged with any crime directly relating to those communications. The indictment also did not list the names of Gorman or Roark, but they were confirmed by reporters (i.e. Hosenball of Newsweek). Roark's lawyer has claimed the indictment contains a "mischaracterization of the facts" about the relationship between her client and Drake. Roark herself later spoke out in support of Drake and the other whistleblowers of the Trailblazer project.
The 'Willfull retention' charges are regarding five documents allegedly 'related to the national defense' that were found at Drake's residence. The five documents in question are referred to as "What a Success", "the Regular Meetings", "Volume is our Friend", "Trial and Testing", and "Collections Sites". "What a Success" was declassified a few months after Drake was indicted. "Regular Meetings" was marked "UNCLASSIFIED" and posted on NSANet but prosecution argues the defendant should have known it was really classified. Drake's team also argued that the latter 3 of the 5 documents were part of a collection of thousands of unclassified papers related to the DoD Inspector General Report (mentioned above). Defense argues this means the defendant brought home the material accidentally, not 'willfully'.
The obstruction charge is related to allegedly deleting documents while knowing the FBI was investigating leaks to the media, and that it was contemplating investigating leaks to the aforementioned reporter. The false statements charge come out of the FBI's questioning of Drake without a lawyer present, in the initial stages of the investigation when he was cooperating with them. One count is for alleged statements made by him regarding whether he had willfully taken certain documents home. Another count is for allegedly lying about allegedly giving classified information to Gorman. Drake's defenders point out that the government's own expert has found that he did not destroy any evidence. They also point out that he was careful not to give any classified information to Gorman, and that many of the documents in question were 'retroactively classified' after they were seized from his home by the FBI.
Offices involved in the indictment included the DOJ Public Integrity Section
, DOJ Criminal Division
, DOJ National Security Division
, the FBI
, and the NSA Office of Security & Counterintelligence
. Drake is being represented by James Wyda and Deborah Boardman, federal public defender
s.
Drake is a client of the Government Accountability Project
, a whistleblower non-profit. Jesselyn Radack
, director of Homeland Security and Human Rights for GAP, worked with Drake. Author James Bamford
was a consultant for Drake's defense as well.
Government prosecutor William M. Welch II (previously charged with contempt
and removed from the Ted Stevens
case) is the government's Senior Litigation Counsel on the case. John P Pearson of the DOJ Public Integrity Section is the government's Trial Attorney. Lanny A. Breuer
is overseeing the prosecution.
Judge Richard D. Bennett is handling the case. Trial is scheduled for June 2011.
The Drake case has been written about in the Washington Post, the New York Times, Agence France-Press, Newsweek.com, Wired, the Washingtonian.com, the Federation of American Scientists
' Secrecy News, Politico, and elsewhere. Jesselyn Radack
, of the Government Accountability Project
, has also discussed the case.
and others. This is done per the Classified Information Procedures Act
, which attempts in theory to prevent the release of classified information during open trials. The prosecution also motioned to use the controversial 'silent witness rule
', in which exhibits are hidden from the public by the use of 'code words' in court. The government has only attempted to use the rule a handful of times; its legality has been challenged under the Fifth and Sixth Amendments. The government also motioned to restrict cross-examination of witnesses, to restrict jurors from reading the Siobhan Gorman Baltimore Sun articles about problems with NSA and Trailblazer
, and to prevent the defense from making arguments or introducing evidence to the courtroom about whistleblowing or overclassification.
The prosecution also attempted (successfully) to seal two exhibits the defense had published in one of their public court filings, which listed various documents the prosecution would try to use at trial.
The prosecution has also argued that the CIPA applies to non-classified information and has attempted to redact unclassified information at trial.
Government arguments
The government claimed the "newspaper articles are unduly prejudicial. The only purpose for the
admission of these newspaper articles is to put NSA on trial." It also believed that it "does not
have to prove that defendant intended to harm the country" under the specific part of the Espionage Act that Drake is charged with; . As for the 'overclassification' defense, the government has argued that it is 'confusing to the jury' and irrelevant to the charges. The government argues the whistle-blower defense is irrelevant to the charges as well.
Final Disposition
In early June, shortly after the broadcast of a 60 Minutes episode on the Drake case, the government dropped all of the charges against Drake and agreed not to seek any jail time in return for Drake's agreement to plead guilty to a misdemeanor of misusing the agency’s computer system. Drake was sentenced to one year of probation and community service.
At the July sentencing hearing the judge, Richard D. Bennett of the Federal District Court, issued some harsh words for the government, saying that it was "unconscionable" to charge a defendant with a list of serious crimes that could have resulted in 35 years in prison only to drop all of the major charges on the eve of trial. The judge also rejected the government's request for a large fine noting that Drake had been financially devastated, losing his $154,600 job at the NSA and his pension. Drake is now working at an Apple Store in the D.C. area.
was created in 1950 during the Second Red Scare, as part of the McCarran Internal Security Act
. Anthony Russo
and Daniel Ellsberg
were the first to be prosecuted for the 'retention' of what came to be known as the Pentagon Papers
(which he gave to the New York Times, eventually resulting in another landmark Espionage Act case in 1971, New York Times Co. v. United States
). The prosecution of Russo and Ellsberg was dismissed in 1972 because of government misconduct. The second prosecution was of Samuel Loring Morison
in 1985, a Navy analyst who sold satellite photographs to Jane's Defense Weekly; he was later pardoned by President Bill Clinton
. The third was the AIPAC case in 2005 (United States v. Franklin, Rosen, and Weissman
).
National Security Agency
The National Security Agency/Central Security Service is a cryptologic intelligence agency of the United States Department of Defense responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S...
(NSA), decorated United States Air Force
United States Air Force
The United States Air Force is the aerial warfare service branch of the United States Armed Forces and one of the American uniformed services. Initially part of the United States Army, the USAF was formed as a separate branch of the military on September 18, 1947 under the National Security Act of...
and United States Navy
United States Navy
The United States Navy is the naval warfare service branch of the United States Armed Forces and one of the seven uniformed services of the United States. The U.S. Navy is the largest in the world; its battle fleet tonnage is greater than that of the next 13 largest navies combined. The U.S...
veteran, computer software
Computer software
Computer software, or just software, is a collection of computer programs and related data that provide the instructions for telling a computer what to do and how to do it....
expert, linguist, management and leadership specialist, and whistleblower
Whistleblower
A whistleblower is a person who tells the public or someone in authority about alleged dishonest or illegal activities occurring in a government department, a public or private organization, or a company...
. In 2010 the government alleged that he 'mishandled' documents, one of the few such Espionage Act cases in U.S. history. His defenders claim that he was instead being persecuted for challenging the Trailblazer Project
Trailblazer Project
Trailblazer was a United States National Security Agency program intended to analyze data carried on communications networks like the internet. It was able to track communication methods such as cell phones and e-mail...
. He is the 2011 recipient of the Ridenhour Prize for Truth-Telling
The Ridenhour Prizes
The Ridenhour Prizes comprise awards in three categories given annually in recognition of those "who persevere in acts of truth-telling that protect the public interest, promote social justice or illuminate a more just vision of society." The awards are presented by The Nation Institute and The...
.
On June 9, 2011, all 10 original charges against him were dropped. He rejected several deals because he refused to "plea bargain with the truth". He eventually pleaded to one misdemeanor count for unauthorized computer access; Jesselyn Radack
Jesselyn Radack
Jesselyn Radack is a former ethics adviser to the United States Department of Justice who came to prominence as a whistleblower after she disclosed that the Federal Bureau of Investigation committed an ethics violation in its interrogation of John Walker Lindh , without an attorney present, and...
of the Government Accountability Project
Government Accountability Project
The Government Accountability Project is a leading United States whistleblower protection organization. Through litigating of whistleblower cases, publicizing concerns and developing legal reforms, GAP’s mission is to protect the public interest by promoting government and corporate accountability...
, who helped represent him, called it an act of "Civil Disobedience
Civil disobedience
Civil disobedience is the active, professed refusal to obey certain laws, demands, and commands of a government, or of an occupying international power. Civil disobedience is commonly, though not always, defined as being nonviolent resistance. It is one form of civil resistance...
"
Biography
His father was a World War IIWorld War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
veteran and his mother a secretary for Pearl S. Buck
Pearl S. Buck
Pearl Sydenstricker Buck also known by her Chinese name Sai Zhenzhu , was an American writer who spent most of her time until 1934 in China. Her novel The Good Earth was the best-selling fiction book in the U.S. in 1931 and 1932, and won the Pulitzer Prize in 1932...
. He entered the U.S. Air Force in 1979. He became an Airborne Voice Processing Specialist, with a fluency in German
German language
German is a West Germanic language, related to and classified alongside English and Dutch. With an estimated 90 – 98 million native speakers, German is one of the world's major languages and is the most widely-spoken first language in the European Union....
, and went on ELINT (electronic intelligence) missions. He left the Air Force in 1989. He was also in the U.S. Navy, where he analyzed intelligence for the National Military Joint Intelligence Center. According to the Washington Post, he also at one time worked with the CIA. In 1989 he began work as an NSA contractor, evaluating software. He worked on projects like JACKPOT and LIBRARIAN. He became an expert in the quality-testing of software and worked on a system for measuring the quality of computer code at the NSA. He also continued his academic studies.
In 2000 Drake was employed as a software systems quality specialist and management and information technology consultant for Columbia, Maryland
Columbia, Maryland
Columbia is a planned community that consists of ten self-contained villages, located in Howard County, Maryland, United States. It began with the idea that a city could enhance its residents' quality of life. Creator and developer James W. Rouse saw the new community in terms of human values, not...
, based Costal Research & Technology Inc. (CRTI), a wholly owned subsidiary of Alexandria, Virginia
Alexandria, Virginia
Alexandria is an independent city in the Commonwealth of Virginia. As of 2009, the city had a total population of 139,966. Located along the Western bank of the Potomac River, Alexandria is approximately six miles south of downtown Washington, D.C.Like the rest of northern Virginia, as well as...
, based Computer Systems Management, Inc.(CSMI). In late 2001 he went to work at the NSA as a full time employee at the Signals Intelligence Directorate
National Security Agency
The National Security Agency/Central Security Service is a cryptologic intelligence agency of the United States Department of Defense responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S...
at Fort Meade, Maryland
Maryland
Maryland is a U.S. state located in the Mid Atlantic region of the United States, bordering Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware to its east...
. In 2002, he became a Technical Director for Software Engineering Implementation within the Cryptologic Systems and Professional Health Office. In 2003, Drake became a Process Portfolio Manager within NSA's newly formed Directorate of Engineering
National Security Agency
The National Security Agency/Central Security Service is a cryptologic intelligence agency of the United States Department of Defense responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S...
. He held a Top Secret security clearance
Security clearance
A security clearance is a status granted to individuals allowing them access to classified information, i.e., state secrets, or to restricted areas after completion of a thorough background check. The term "security clearance" is also sometimes used in private organizations that have a formal...
. During the congressional investigations into 9/11, he testified about NSA failures. In 2006 he was reassigned to the National Defense University
National Defense University
The National Defense University is an institution of higher education funded by the United States Department of Defense, intended to facilitate high-level training, education, and the development of national security strategy. It is chartered by the Joint Chiefs of Staff, with Navy Vice Admiral...
, where he became the NSA Chair and an Assistant Professor of Behavioral Sciences within the Industrial College of the Armed Forces
Industrial College of the Armed Forces
The Industrial College of the Armed Forces is a U.S. military educational institution tasked with preparing military officers and civilian government officials for leadership and executive positions in the field of national security...
(ICAF) He was forced to leave the NDU in 2007 when his security clearance was suspended and resigned from the NSA the next year. He then went to work at Strayer University
Strayer University
Strayer University, formerly Strayer College of Baltimore, Maryland, is a private, for-profit educational institution. The Strayer University campuses are owned by Strayer Education, Inc. , headquartered in Herndon, Virginia....
but was forced from that job after his indictment of April 2010. He found work at an Apple store. He then founded Knowpari Systems, a consulting firm.
In 2011, Drake was awarded the Ridenhour Prize
The Ridenhour Prizes
The Ridenhour Prizes comprise awards in three categories given annually in recognition of those "who persevere in acts of truth-telling that protect the public interest, promote social justice or illuminate a more just vision of society." The awards are presented by The Nation Institute and The...
for Truth Telling.
Whistleblowing on Trailblazer, and government response
In the late 1990s and early 2000s, the NSA required new tools to collect intelligence from the growing flood of information pouring out of the new digital networks like the internet. Drake become involved in the internal NSA debate between two of these tools, the Trailblazer ProjectTrailblazer Project
Trailblazer was a United States National Security Agency program intended to analyze data carried on communications networks like the internet. It was able to track communication methods such as cell phones and e-mail...
and the ThinThread
ThinThread
ThinThread is the name of a project that the United States National Security Agency engaged in during the 1990s, according to a May 17, 2006 article in the Baltimore Sun...
project. He became part of the "minority" that favored ThinThread for several reasons, including its theoretical ability to protect privacy while gathering intelligence. Trailblazer, on the other hand, not only violated privacy, in violation of the Fourth Amendment, USSID 18, and other laws and regulations, it also required billions of dollars, dwarfing the cost of Thinthread. Drake eventually became "disillusioned, then indignant" regarding the problems he saw at the agency. Circa 2000 NSA head Michael Hayden chose Trailblazer over Thinthread; Thinthread was cancelled and Trailblazer ramped up, eventually employing IBM
IBM
International Business Machines Corporation or IBM is an American multinational technology and consulting corporation headquartered in Armonk, New York, United States. IBM manufactures and sells computer hardware and software, and it offers infrastructure, hosting and consulting services in areas...
, SAIC, Boeing
Boeing
The Boeing Company is an American multinational aerospace and defense corporation, founded in 1916 by William E. Boeing in Seattle, Washington. Boeing has expanded over the years, merging with McDonnell Douglas in 1997. Boeing Corporate headquarters has been in Chicago, Illinois since 2001...
, CSC
Computer Sciences Corporation
Computer Sciences Corporation is an American information technology and business services company headquartered in Falls Church, Virginia, USA...
, and others.
Drake worked his way through the legal processes that are prescribed for government employees who believe that questionable activities are taking place in their departments. In accordance with Whistleblower protection laws such as the Intelligence Community Whistleblower Protection Act, Drake complained internally to the designated authorities: to his bosses, the NSA Inspector General, the Defense Department Inspector General, and both the House and Senate Congressional intelligence committees.
He also kept in contact with Diane S. Roark, a staffer for the Republicans
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
on the House Intelligence Committee
United States House Permanent Select Committee on Intelligence
The United States House Permanent Select Committee on Intelligence is a committee of the United States House of Representatives, currently chaired by Mike Rogers. It is the primary committee in the U.S...
of the U.S. Congress (the House committee responsible for oversight of the executive branch's intelligence activities). Roark was the "staff expert" on the NSA's budget; they had met in 2000.
In September 2002, Roark and three ex-NSA members, Binney, Wiebe, and Loomis, filed a DoD Inspector General
Office of the Inspector General, U.S. Department of Defense
The Department of Defense Inspector General is an independent, objective agency that provides oversight related to the programs and operations of the Department of Defense...
report regarding problems at NSA, including Trailblazer. Drake was a major source for the report, and gave information to DoD
United States Department of Defense
The United States Department of Defense is the U.S...
during its investigation of the matter. Roark also went to her boss at the House committee, Porter Goss. She also attempted to contact William Rehnquist
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
, a Supreme Court justice. She got no response from either.
By 2003, the NSA IG had declared Trailblazer an expensive failure. It cost more than 1 billion dollars.
In 2004, the DoD IG produced a final report of its investigation that had been prompted by Roark & the others in 2002. The report basically agreed with their assertions and found very serious flaws at NSA. For a time, the NSA was even banned from starting projects over a certain size, for fear it would waste the money. However, there were no plans to release this DoD IG report to the public at the time.
Jane Mayer
Jane Mayer
Jane Mayer is an American investigative journalist who has been a staff writer for The New Yorker magazine since 1995...
, in her New Yorker article of 2011, writes that Drake felt the NSA was committing serious crimes against the American people; on a level worse than what president Nixon had done in the 1970s. He reviewed the laws regarding disclosure of information, and decided that if he revealed unclassified information to a reporter, then the worst thing that would happen to him was probably that he would be fired.
In November, 2005, Drake contacted Siobhan Gorman, of The Baltimore Sun
The Baltimore Sun
The Baltimore Sun is the U.S. state of Maryland’s largest general circulation daily newspaper and provides coverage of local and regional news, events, issues, people, and industries....
newspaper. Drake began communicating with Gorman, sending her emails through hushmail
Hushmail
Hushmail is a web-based email service offering PGP-encrypted e-mail, file storage, vanity domain service, and instant messaging . Hushmail uses OpenPGP standards and the source is available for download. Additional security features include hidden IP addresses in e-mail headers...
and discussing various topics. He claims that he was very careful not to give her sensitive or classified information; it was one of the basic ground rules he set out at the beginning of their communication. This communication occurred circa 2006. Gorman wrote several articles about waste, fraud, and abuse at the NSA, including articles on Trailblazer. She received an award from the Society of Professional Journalists for her series exposing government wrongdoing. Judge Richard Bennett later ruled that "there is no evidence that Reporter A relied upon any allegedly classified information found in Mr. Drake's house in her articles".
2007 FBI raids
In July 2007, armed FBI agents raided the homes of Roark, Binney, and Wiebe, the same people who had filed the complaint with the DoD Inspector General in 2002. Binney claims they pointed guns at his wife and himself. Wiebe said it reminded him of the Soviet UnionSoviet Union
The Soviet Union , officially the Union of Soviet Socialist Republics , was a constitutionally socialist state that existed in Eurasia between 1922 and 1991....
. None of these people were charged with any crimes. In November 2007, there was a raid on Drake's residence. His computers, documents, and books were confiscated. He was never charged with giving any sensitive information to anyone; the charge actually brought against him is for 'retaining' information . The FBI tried to get Roark to testify against Drake; she refused. Reporter Gorman was not contacted by the FBI.
Drake initially cooperated with the investigation, telling the FBI about the alleged illegality of the NSA's activities. The government created a 'draft indictment' of Drake, prepared by prosecutor Steven Tyrrell. It listed charges as "disclosing classified information to a newspaper reporter and for conspiracy". Diane Roark, Binney, Wiebe, and Loomis (the complainants to the DoD IG in 2002) were also allegedly listed as "unindicted co-conspirators". In 2009 a new prosecutor came on the case, William Welch II, and changed the indictment. Some charges were removed, as was any naming of 'co-conspirators'. The new case only contained charges against Drake.
Prosecutors wanted Drake to plead guilty, but he refused. He believed that he was innocent of the charges against him. The government wanted him to help prosecute the other whistleblowers. He refused this as well. He later explained his motivations to the Ridenhour Prizes organization:
Indictment
In April 2010, Drake was indicted by a Baltimore, Maryland, grand juryGrand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
on the following charges:
- Willful Retention of National Defense Information (5 counts)
- ( 793(e) is a modification of the Espionage Act of 1917Espionage Act of 1917The Espionage Act of 1917 is a United States federal law passed on June 15, 1917, shortly after the U.S. entry into World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code but is now found under Title 18, Crime...
made under the McCarran Internal Security ActMcCarran Internal Security ActThe Internal Security Act of 1950, , also known as the Subversive Activities Control Act or the McCarran Act, after Senator Pat McCarran , is a United States federal law of the McCarthy era. It was passed over President Harry Truman's veto...
of 1950 )
- ( 793(e) is a modification of the Espionage Act of 1917
- Obstructing justice (1 count)
- Making a False Statement (4 counts)
The indictment
Indictment
An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...
contains many other allegations; most of them do not relate to the actual charges against him. He was not specifically charged with unauthorized disclosure of classified information, nor was he charged at all under , the "SIGINT" statute. The indictment gives details about his communications with Roark and with Gorman, but he is not charged with any crime directly relating to those communications. The indictment also did not list the names of Gorman or Roark, but they were confirmed by reporters (i.e. Hosenball of Newsweek). Roark's lawyer has claimed the indictment contains a "mischaracterization of the facts" about the relationship between her client and Drake. Roark herself later spoke out in support of Drake and the other whistleblowers of the Trailblazer project.
The 'Willfull retention' charges are regarding five documents allegedly 'related to the national defense' that were found at Drake's residence. The five documents in question are referred to as "What a Success", "the Regular Meetings", "Volume is our Friend", "Trial and Testing", and "Collections Sites". "What a Success" was declassified a few months after Drake was indicted. "Regular Meetings" was marked "UNCLASSIFIED" and posted on NSANet but prosecution argues the defendant should have known it was really classified. Drake's team also argued that the latter 3 of the 5 documents were part of a collection of thousands of unclassified papers related to the DoD Inspector General Report (mentioned above). Defense argues this means the defendant brought home the material accidentally, not 'willfully'.
The obstruction charge is related to allegedly deleting documents while knowing the FBI was investigating leaks to the media, and that it was contemplating investigating leaks to the aforementioned reporter. The false statements charge come out of the FBI's questioning of Drake without a lawyer present, in the initial stages of the investigation when he was cooperating with them. One count is for alleged statements made by him regarding whether he had willfully taken certain documents home. Another count is for allegedly lying about allegedly giving classified information to Gorman. Drake's defenders point out that the government's own expert has found that he did not destroy any evidence. They also point out that he was careful not to give any classified information to Gorman, and that many of the documents in question were 'retroactively classified' after they were seized from his home by the FBI.
Offices involved in the indictment included the DOJ Public Integrity Section
Public Integrity Section
The Public Integrity Section is a section of the Criminal Division of the U.S. Department of Justice charged with combating political corruption at all levels of government through the prosecution of corrupt federal, state, and local elected and appointed public officials.-Administrative...
, DOJ Criminal Division
United States Department of Justice Criminal Division
The U.S. Department of Justice Criminal Division develops, enforces, and supervises the application of all federal criminal laws in the United States, except those specifically assigned to other divisions. Criminal Division attorneys prosecute many nationally significant cases and formulate and...
, DOJ National Security Division
United States Department of Justice National Security Division
The United States Department of Justice National Security Division is the division of the DOJ that handles all national security functions of the Department. Created by the 2005 USA PATRIOT Act reauthorization, the Division consolidated all of the Department's national security and intelligence...
, the FBI
Federal Bureau of Investigation
The Federal Bureau of Investigation is an agency of the United States Department of Justice that serves as both a federal criminal investigative body and an internal intelligence agency . The FBI has investigative jurisdiction over violations of more than 200 categories of federal crime...
, and the NSA Office of Security & Counterintelligence
National Security Agency
The National Security Agency/Central Security Service is a cryptologic intelligence agency of the United States Department of Defense responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S...
. Drake is being represented by James Wyda and Deborah Boardman, federal public defender
Public defender
The term public defender is primarily used to refer to a criminal defense lawyer appointed to represent people charged with a crime but who cannot afford to hire an attorney in the United States and Brazil. The term is also applied to some ombudsman offices, for example in Jamaica, and is one way...
s.
Drake is a client of the Government Accountability Project
Government Accountability Project
The Government Accountability Project is a leading United States whistleblower protection organization. Through litigating of whistleblower cases, publicizing concerns and developing legal reforms, GAP’s mission is to protect the public interest by promoting government and corporate accountability...
, a whistleblower non-profit. Jesselyn Radack
Jesselyn Radack
Jesselyn Radack is a former ethics adviser to the United States Department of Justice who came to prominence as a whistleblower after she disclosed that the Federal Bureau of Investigation committed an ethics violation in its interrogation of John Walker Lindh , without an attorney present, and...
, director of Homeland Security and Human Rights for GAP, worked with Drake. Author James Bamford
James Bamford
V. James Bamford is an American bestselling author and journalist who writes about United States intelligence agencies, most notably the National Security Agency.-Biography:...
was a consultant for Drake's defense as well.
Government prosecutor William M. Welch II (previously charged with contempt
Contempt of court
Contempt of court is a court order which, in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court's authority...
and removed from the Ted Stevens
Ted Stevens
Theodore Fulton "Ted" Stevens, Sr. was a United States Senator from Alaska, serving from December 24, 1968, until January 3, 2009, and thus the longest-serving Republican senator in history...
case) is the government's Senior Litigation Counsel on the case. John P Pearson of the DOJ Public Integrity Section is the government's Trial Attorney. Lanny A. Breuer
Lanny A. Breuer
Lanny Breuer is an American lawyer and the Assistant Attorney General for the Criminal Division of the U.S. Department of Justice.After graduating from Columbia Law School, Breuer was an assistant district attorney in Manhattan from 1985 to 1989...
is overseeing the prosecution.
Judge Richard D. Bennett is handling the case. Trial is scheduled for June 2011.
The Drake case has been written about in the Washington Post, the New York Times, Agence France-Press, Newsweek.com, Wired, the Washingtonian.com, the Federation of American Scientists
Federation of American Scientists
The Federation of American Scientists is a nonpartisan, 501 organization intent on using science and scientific analysis to attempt make the world more secure. FAS was founded in 1945 by scientists who worked on the Manhattan Project to develop the first atomic bombs...
' Secrecy News, Politico, and elsewhere. Jesselyn Radack
Jesselyn Radack
Jesselyn Radack is a former ethics adviser to the United States Department of Justice who came to prominence as a whistleblower after she disclosed that the Federal Bureau of Investigation committed an ethics violation in its interrogation of John Walker Lindh , without an attorney present, and...
, of the Government Accountability Project
Government Accountability Project
The Government Accountability Project is a leading United States whistleblower protection organization. Through litigating of whistleblower cases, publicizing concerns and developing legal reforms, GAP’s mission is to protect the public interest by promoting government and corporate accountability...
, has also discussed the case.
Court proceedings
In the spring of 2011, the prosecution made several moves to restrict the normally open proceedings of a jury trial in a United States courtroom, as reported by Gerstein at PoliticoPolitico (newspaper)
The Politico is an American political journalism organization based in Arlington, Virginia, that distributes its content via television, the Internet, newspaper, and radio. Its coverage of Washington, D.C., includes the U.S. Congress, lobbying, media and the Presidency...
and others. This is done per the Classified Information Procedures Act
Classified Information Procedures Act
The Classified Information Procedures Act or , is codified as the third appendix to Title18 of the U.S. Code, the title concerning crimes and criminal procedures. The U.S. Code citation is .-Legislative Revision History:...
, which attempts in theory to prevent the release of classified information during open trials. The prosecution also motioned to use the controversial 'silent witness rule
Silent witness rule
The silent witness rule is the use of 'substitutions' when referring to sensitive information in the United States open courtroom jury trial system. The phrase was first used in US v. Zettl, in 1987. An example of a substitution method is the use of code-words on a 'key card', to which witnesses...
', in which exhibits are hidden from the public by the use of 'code words' in court. The government has only attempted to use the rule a handful of times; its legality has been challenged under the Fifth and Sixth Amendments. The government also motioned to restrict cross-examination of witnesses, to restrict jurors from reading the Siobhan Gorman Baltimore Sun articles about problems with NSA and Trailblazer
Trailblazer
Trailblazer may refer to:* Trail blazing, a person who marks a trail through wilderness areasIn sports:* Portland Trail Blazers, a basketball team based in Portland, Oregon* North Carolina Trailblazers, a US women's recreational ice hockey association...
, and to prevent the defense from making arguments or introducing evidence to the courtroom about whistleblowing or overclassification.
The prosecution also attempted (successfully) to seal two exhibits the defense had published in one of their public court filings, which listed various documents the prosecution would try to use at trial.
The prosecution has also argued that the CIPA applies to non-classified information and has attempted to redact unclassified information at trial.
Government arguments
The government claimed the "newspaper articles are unduly prejudicial. The only purpose for the
admission of these newspaper articles is to put NSA on trial." It also believed that it "does not
have to prove that defendant intended to harm the country" under the specific part of the Espionage Act that Drake is charged with; . As for the 'overclassification' defense, the government has argued that it is 'confusing to the jury' and irrelevant to the charges. The government argues the whistle-blower defense is irrelevant to the charges as well.
Final Disposition
In early June, shortly after the broadcast of a 60 Minutes episode on the Drake case, the government dropped all of the charges against Drake and agreed not to seek any jail time in return for Drake's agreement to plead guilty to a misdemeanor of misusing the agency’s computer system. Drake was sentenced to one year of probation and community service.
At the July sentencing hearing the judge, Richard D. Bennett of the Federal District Court, issued some harsh words for the government, saying that it was "unconscionable" to charge a defendant with a list of serious crimes that could have resulted in 35 years in prison only to drop all of the major charges on the eve of trial. The judge also rejected the government's request for a large fine noting that Drake had been financially devastated, losing his $154,600 job at the NSA and his pension. Drake is now working at an Apple Store in the D.C. area.
The Espionage Act and Whistleblowing
Drake is one of four individuals in the history of the United States who has been charged specifically with "willfull retention" of "national defense" information under . Most prosecutions are for 'delivery' of classified information to a third party - something that Mr Drake was not charged with. This particular portion of the Espionage ActEspionage Act of 1917
The Espionage Act of 1917 is a United States federal law passed on June 15, 1917, shortly after the U.S. entry into World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code but is now found under Title 18, Crime...
was created in 1950 during the Second Red Scare, as part of the McCarran Internal Security Act
McCarran Internal Security Act
The Internal Security Act of 1950, , also known as the Subversive Activities Control Act or the McCarran Act, after Senator Pat McCarran , is a United States federal law of the McCarthy era. It was passed over President Harry Truman's veto...
. Anthony Russo
Anthony Russo (whistleblower)
Anthony J. "Tony" Russo, Jr. was an American researcher who assisted Daniel Ellsberg, his friend and former colleague at the RAND Corporation, in copying the Pentagon Papers.-Early life:...
and Daniel Ellsberg
Daniel Ellsberg
Daniel Ellsberg, PhD, is a former United States military analyst who, while employed by the RAND Corporation, precipitated a national political controversy in 1971 when he released the Pentagon Papers, a top-secret Pentagon study of U.S. government decision-making in relation to the Vietnam War,...
were the first to be prosecuted for the 'retention' of what came to be known as the Pentagon Papers
Pentagon Papers
The Pentagon Papers, officially titled United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense, is a United States Department of Defense history of the United States' political-military involvement in Vietnam from 1945 to 1967...
(which he gave to the New York Times, eventually resulting in another landmark Espionage Act case in 1971, New York Times Co. v. United States
New York Times Co. v. United States
New York Times Co. v. United States, 403 U.S. 713 , was a United States Supreme Court per curiam decision. The ruling made it possible for the New York Times and Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censure.President Richard Nixon had...
). The prosecution of Russo and Ellsberg was dismissed in 1972 because of government misconduct. The second prosecution was of Samuel Loring Morison
Samuel Loring Morison
Samuel Loring Morison is a former American intelligence professional, who was convicted of espionage and theft of government property in 1985, and pardoned in 2001...
in 1985, a Navy analyst who sold satellite photographs to Jane's Defense Weekly; he was later pardoned by President Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
. The third was the AIPAC case in 2005 (United States v. Franklin, Rosen, and Weissman
United States v. Franklin, Rosen, and Weissman
United States v. Franklin, Rosen, and Weissman was a 2000s era court case in the United States. The government prosecuted one government employee and two lobbyists for allegedly disclosing national defense information to persons 'not entitled' to have it, a crime under the Espionage Act of 1917...
).
See also
- Russ TiceRuss TiceRussell D. Tice is a former intelligence analyst for the U.S. Air Force, Office of Naval Intelligence, Defense Intelligence Agency and National Security Agency...
(NSA) , Thomas TammThomas TammThomas Tamm is a former lawyer in the United States Department of Justice's Office of Intelligence Policy and Review during the period in 2004 when senior Justice officials fought against the widening scope of warrantless NSA surveillance—and was the anonymous initial whistleblower to The...
(NSA), Mark KleinMark KleinMark Klein is a former AT&T technician who leaked knowledge of his company's cooperation with the United States National Security Agency in installing network hardware to monitor and process American telecommunications...
(AT&T) (warrantless wiretap whistleblowers) - Espionage Act of 1917Espionage Act of 1917The Espionage Act of 1917 is a United States federal law passed on June 15, 1917, shortly after the U.S. entry into World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code but is now found under Title 18, Crime...
, McCarran Internal Security ActMcCarran Internal Security ActThe Internal Security Act of 1950, , also known as the Subversive Activities Control Act or the McCarran Act, after Senator Pat McCarran , is a United States federal law of the McCarthy era. It was passed over President Harry Truman's veto...
, 1950- Stephen Jin-Woo KimStephen Jin-Woo KimStephen Jin-Woo Kim is a Senior Analyst at the Office of National Security at Lawrence Livermore National Laboratory with a distinguished career in academia and government service. He lives in McLean, Virginia...
, Jeffrey Alexander SterlingJeffrey Alexander SterlingJeffrey Alexander Sterling is a former CIA employee, who was indicted and subsequently arrested under the Espionage Act for allegedly revealing details about Operation Merlin to journalist James Risen.-Education:...
, Bradley Manning, Shamai Leibowitz, Wen Ho LeeWen Ho LeeDr. Wen Ho Lee is a Taiwan-born Taiwanese American scientist who worked for the University of California at the Los Alamos National Laboratory. He created simulations of nuclear explosions for the purposes of scientific inquiry, as well as for improving the safety and reliability of the US nuclear...
- Stephen Jin-Woo Kim
- Right to a fair trialRight to a fair trialThe right to fair trial is an essential right in all countries respecting the rule of law. A trial in these countries that is deemed unfair will typically be restarted, or its verdict voided....
, Confrontation ClauseConfrontation ClauseThe Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." Generally, the right is to have a face-to-face confrontation with witnesses who are... - State secrets privilegeState Secrets PrivilegeThe state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information...
, Classified Information Procedures ActClassified Information Procedures ActThe Classified Information Procedures Act or , is codified as the third appendix to Title18 of the U.S. Code, the title concerning crimes and criminal procedures. The U.S. Code citation is .-Legislative Revision History:...
, Silent witness ruleSilent witness ruleThe silent witness rule is the use of 'substitutions' when referring to sensitive information in the United States open courtroom jury trial system. The phrase was first used in US v. Zettl, in 1987. An example of a substitution method is the use of code-words on a 'key card', to which witnesses... - Right to free speechFreedom of speech in the United StatesFreedom of speech in the United States is protected by the First Amendment to the United States Constitution and by many state constitutions and state and federal laws, with the exception of obscenity, defamation, incitement to riot, and fighting words, as well as harassment, privileged...
, Right to petitionRight to petition in the United StatesIn the United States the right to petition is guaranteed by the First Amendment to the federal constitution, which specifically prohibits Congress from abridging "the right of the people...to petition the Government for a redress of grievances."...
, Chilling EffectChilling effectIn a legal context, a chilling effect is the term used to describe the inhibition or discouragement of the legitimate exercise of a constitutional right by the threat of legal sanction. The right that is most often described as being supressed by a chilling effect is the right to free speech...
, Prior restraintPrior restraintPrior restraint or prior censorship is censorship in which certain material may not be published or communicated, rather than not prohibiting publication but making the publisher answerable for what is made known... - Whistleblower Protection ActWhistleblower Protection Act-Whistleblower Protection Act of 1989:The Whistleblower Protection Act of 1989 is a United States federal law that protects federal whistleblowers who work for the government and report agency misconduct...
External links
- USA v. Thomas A. Drake: Selected Case Files, from the Federation of American ScientistsFederation of American ScientistsThe Federation of American Scientists is a nonpartisan, 501 organization intent on using science and scientific analysis to attempt make the world more secure. FAS was founded in 1945 by scientists who worked on the Manhattan Project to develop the first atomic bombs...
- Save Tom Drake websites:
- Save Tom Drake, Facebook page
- Save Tom Drake, Twitter page
- Drake's speech at the Ridenhour award ceremony (through Save Tome Drake facebook link)
- Thomas Drake speaking after sentencing, Baltimore Sun website, 2011
- No Jail Time in Trial Over N.S.A. Leak, New York Times website, July 15, 2011
- By Drake
- Measuring Software Quality: A Case Study, IEEE Computer (journal), Nov. 1996
- Why are we subverting the Constitution in the name of security?, Washington Post, 2011 Aug 25