By NICK SCHWELLENBACH
When the subject of national security whistleblowers came up at a White House meeting in March, "the President shifted in his seat and leaned forward," my boss Danielle Brian told The New Yorker's Jane Mayer. "He said this may be where we have some differences. He said he doesn't want to protect the people who leak to the media war plans that could impact the troops."
Mayer also wrote that my boss:
felt that [the President] might be misinformed about some of the current leak cases. She warned Obama that prosecuting whistle-blowers would undermine his legacy. Brian had been told by the White House to avoid any 'ask's on specific issues, but she told the President that, according to his own logic, Drake was exactly the kind of whistle-blower who deserved protection.
Why did Obama appear misinformed? Thomas Drake, a former senior executive at the highly secretive National Security Agency (NSA) who is being prosecuted by the Justice Department under the Espionage Act, did not leak information that could give our enemies any sort of advantage. Instead he blew the whistle on a failed multi-billion dollar intelligence program called Trailblazer that came at the expense of a cheaper, more effective intelligence program known as ThinThread that had civil liberties-protecting technology built-in, according to Drake.
A few weeks after the aforementioned White House meeting, the Justice Department dropped its investigation into Thomas Tamm, a former Justice Department attorney who blew the whistle on the warrantless wiretapping in the previous administration. But DOJ's prosecution of Drake continues.
As Mayer also wrote about my boss's meeting with Obama, "during the discussion, the President drew a sharp distinction between whistle-blowers who exclusively reveal wrongdoing and those who jeopardize national security." By Obama's logic, Drake should be the kind of whistleblower he favors: Drake was revealing wrongdoing, not aiding our enemies. Even then-NSA Director Michael Hayden admitted to a Senate committee that Trailblazer's costs "were greater than anticipated, to the tune of, I would say, hundreds of millions."
Cooperation with Pentagon Inspector General
Drake was a cooperating witness in a Defense Department (DOD) Office of Inspector General (OIG) audit of the Trailblazer and ThinThread programs that was completed on December 15, 2004. An unredacted version of the classified audit report, called "Requirements for the Trailblazer and ThinThread Systems," has never been made publicly available, but is listed on the DOD OIG's website.
Much of the case against Drake revolves around his work cooperating with the DOD OIG. A close reading of three of the five counts against him for unauthorized possession of classified documents reveals that these documents were related to his work with the DOD OIG. It is not true, as the Justice Department claims, that "what documents the defendant provided to the DOD IG have no bearing on the present charges." Indeed, these very documents are at the heart of the present charges against Drake.
The DOJ further argues that "an individual's assistance with an IG investigation is no exception to" NSA's rules regarding bringing classified documents home. But the full nature of Drake's work with the DOD OIG auditors is still unknown. Drake's lawyers argue that there is no criminal case against Drake because he did not willfully break the law. To help make that case, Drake's lawyers want to demonstrate the voluminous exchange between Drake and the DOD OIG to show "the volume of the documents will provide a contrast with the slight number of DOD-IG related documents recovered from the basement and, thus, will evidence the likelihood of negligence, inadvertence, mistake, or carelessness." This could seriously upset the prosecution's case, as the prosecution is charging Drake with knowingly and willfully possessing classified documents in an unauthorized manner.
Drake and his lawyers want to learn more about the OIG auditors' work with Drake, but the DOJ has put the kibosh on Drake's requests for documentation believed to be in the OIG's possession:
…as to any hard copy documents provided by the defendant to the DOD IG, his request assumes that the DOD IG can trace back and segregate which documents in its possession were received from the defendant. Today, we learned that the DOD IG cannot segregate out hard copy documents provided by the defendant. In addition, most of the hard copy documents related to the audit were destroyed before the defendant was charged, pursuant to a standard document destruction policy. There was, for example, a notebook of documents provided by the defendant, many of which had nothing to do with the IG's audit, but this notebook was destroyed before the case began, and after the IG completed its audit.
DOJ's response to Drake's request is problematic for at least three reasons. First, the OIG does not have a “document destruction policy,” but a “document retention” policy. Second, it is puzzling that the DOJ would specifically mention that they know about a “notebook of documents” that, according to DOJ, “was destroyed before the [DOJ's] case began.” Third, the DOD OIG may have been in violation of its retention policy, because, according to Drake's lawyers:
"the government was on notice as early as October 2006, and as recently as August 2007, that the DOD-IG audit was directly related to a criminal investigation, and it should have ordered retention of the DOD-IG audit documents.
If the prosecution is holding back on producing exculpatory documents or information, or is not producing a thorough search for such information, that will stack the deck against Drake in trial, as he will be without facts that help his defense. This could also pose trouble for the government's prosecution down the road, something the prosecutor William M. Welch II should be well aware of—but I'll get to that later.
Other Problems with Justice's Arguments
As The New Yorker's Mayer points out, Drake may have kept the documents he is being charged with possessing because he thought he was only holding onto less sensitive materials used in support of the OIG's audit. Mayer wrote:
The boxes in his basement contained copies of some of the less sensitive material that he had procured for the Inspector General's Trailblazer investigation. The Inspector General's Web site directs complainants to keep copies. Drake says that if the boxes did, in fact, contain classified documents he didn't realize it. (The indictment emphasizes that he “willfully” retained documents.)
Furthermore, the DOJ implies that Drake should have gone to NSA Inspector General, rather than the DOD OIG. In its motion to block a whistleblower defense, the prosecution wrote that Drake never contacted “the National Security Agency's Office of Inspector General (NSA IG) regarding these issues.” The DOJ does acknowledge that Drake “eventually contacted two DOD IG auditors assigned to the audit of Classified Program A [aka “Trailblazer”]. He provided them information, documents, and his opinion regarding Classified Program A's alleged shortcomings, as well as similar information regarding Classified Program B's [“ThinThread”] alleged advantages.”
The DOJ's apparent preference for the NSA IG glosses over the fact that the DOD OIG was authorized to oversee NSA because NSA is within the Department of Defense. But furthermore, it may have been more appropriate to go to the DOD OIG given the sensitivity of these matters. Many knowledgeable experts believe the NSA IG is not as independent as the DOD OIG (one reason why the DOD OIG its created intelligence section in the 1990s). At the time of the Drake disclosures, the NSA IG was not a statutory IG (but as of 2010 it is). Eleanor Hill, a former DOD IG during the Clinton administration, addressed this issue in testifimony before the Senate in 2007:
I also had numerous conversations with various administrative IGs within the Department of Defense. This would include Defense agencies like DIA, NSA, NRO. They served without the benefit of statutory independence. They serve at the pleasure of the directors of their agencies. And they also would ask us to take on those kinds of investigations. They recognized that in investigations of very senior officials or in audits of programs that are dear to an agency head, statutory independence was absolutely critical to both the integrity of the inquiry and to the credibility of the findings in the Department, on Capitol Hill, and with the American Public.
I must tell you that I could not help but recall those conversations last year when I read reports that oversight of what is now termed the NSA terrorist surveillance program, which I am sure you are familiar with, had been handled not by the Department of Defense IG, who is independent, but rather by the NSA IG, who has limited resources and no statutory independence.
As another reason to bar his whistleblower defense, the DOJ also argued Drake was not forthcoming with DOD OIG auditors about his relationship with the four named complainants whose complaint led to the audit of Trailblazer. “The defendant never informed the auditors of his contact or personal relationships with the complaint's authors, however, instead presenting himself as an "honest broker" during the process,” according to the DOJ motion. But the failure of the DOD OIG to learn the full nature of his relationship with the named complainants should not be held against Drake.
The document that relates to one of the counts of violating the Espionage Act that Drake is charged with was not even classified when it was in his possession. “In support of its willful retention charges, including Count Two, the government alleges that “[c]lassified information had to contain markings identifying the level at which it was classified,” according to a motion filed by Drake's lawyers to dismiss Count Two. But, but, but…
Evidence recently produced by the government reveals that the allegedly classified “Regular Meetings' document contained clear ‘markings' that it was an ‘unclassified” document. According to a March 22, 2010 memorandum prepared by the lead NSA investigator in this case – which was produced to the defense just three weeks ago – the allegedly classified “Regular Meetings” document was posted on the National Security Agency intranet, called “NSANet,” and it was marked “UNCLASSIFIED//FOR OFFICIAL USE ONLY” in the header and footer.
According to a 1998 congressional report, prosecution or other types of penalties for having classified material that is not marked as classified are completely contrary to having a working system of whistleblower protections:
Without the classification markings on unclassified information, however, an employee cannot be sure that the nondisclosure agreements' restrictions apply to that material. Consequently, they must check with their supervisors, thereby alerting them to the disclosure. That invites a chilling effect. As [then] Congresswoman Boxer noted at the hearings, “I am concerned this will force would-be whistleblowers to have to ask their superiors about classification determinations. This would act to stop the whistleblower.”
This isn't the first time POGO has seen games played through retroactive classification of documents related to whistleblower disclosures as a basis to retaliate or block public scrutiny. This has happened to Franz Gayl, Robert MacLean, Sibel Edmonds, and others.
There is also a lot of hype associated with the term “classified documents.” Although many classified documents are truly sensitive, a good deal of them are not. It is widely acknowledged within the national security community that 50 percent or more of the documents that are classified should not be so designated. Moreover, secrecy often has a shelf life: over time, many documents that should be secret at one point may not need to be later on.
One of the documents that forms the basis of one of the charges against Drake fits into this limited shelf life category. According to Mayer's article in The New Yorker, this document “was officially declassified in July, 2010, three months after Drake was indicted.” Attorney Jesselyn Radack of the Government Accountability Project, which represents Drake (although not as part of his criminal defense team), told Mayer, “After charging him with having this ostensibly serious classified document, the government waved a wand and decided it wasn't so classified after all.”
Clearly, the prosecution cares little about whether truly legitimate secrets were spilled or were even really classified at all. Otherwise it would not be pursuing the two charges based on his possession of an unclassified document and a now-declassified document.
A Double Standard
There's also a clear double standard at work that brings the true motivation of the Justice Department into stark relief: one standard for whistleblowers and another for senior officials. As Mayer wrote:
In recent years, several top officials accused of similar misdeeds have not faced such serious charges. John Deutch, the former CIA director, and Alberto Gonzales, the former Attorney General, both faced much less stringent punishment after taking classified documents home without authorization. In 2003, Sandy Berger, Clinton's national-security adviser, smuggled classified documents out of a federal building, reportedly by hiding them in his pants. It was treated as a misdemeanor. His defense lawyer was Lanny Breuer—the official overseeing the prosecution of Drake.
Jack Goldsmith, a Harvard law professor who served in the Bush Justice Department, laments the lack of consistency in leak prosecutions. He notes that no investigations have been launched into the sourcing of Bob Woodward's four most recent books, even though “they are filled with classified information that he could only have received from the top of the government.” Gabriel Schoenfeld, of the Hudson Institute, says, “The selectivity of the prosecutions here is nightmarish. It's a broken system.”
The Espionage Act was not intended to inhibit the workings of the press in this country or to punish whistleblowers and sources for working with inspectors general, but the prosecutor William M. Welch II is clearly wielding the Act this way.
Besides his creative use of the Espionage Act and pursuance of questionable charges, Welch has a track record of being an overzealous prosecutor in other ways as well. He was the chief of the DOJ Public Integrity Section during the successful prosecution of Sen. Ted Stevens (R-AK). After an FBI agent blew the whistle, alleging that DOJ did not present Stevens with exculpatory evidence, Welch along with other DOJ prosecutors were held in contempt of court. The Justice Department removed Welch and others from the case.
Mayer ends her New Yorker story on a depressing note. The Drake case appears to be an offshoot of the DOJ investigation into who leaked information to The New York Times for its NSA warrantless wiretapping story. Drake was not a source for that story. But what's been largely forgotten in the public discourse was that the Bush administration was engaged in massive violations of the Constitution and the Foreign Intelligence Surveillance Act (FISA)—for several years—and had Congress retroactively legalize it after the Times story. It's against this backdrop that Mark Klein, AT&T whistleblower, told Mayer, “I think it's outrageous…The Bush people have been let off. The telecom companies got immunity. The only people Obama has prosecuted are the whistle-blowers.”
Nick Schwellenbach is POGO's Director of Investigations.
Updated for clarity on May 23, 2011.
Thomas Drake is set to appear on a special two-hour episode of 60 Minutes on Sunday, May 22nd. The program begins at 7:00 p.m., and a piece on Drake is slated to air at 8:00 p.m. In the meantime, make sure to sign a petition demanding accountability for Drake's prosecution.