By DANIELLE BRIAN
News broke yesterday that the Department of Justice (DOJ) has agreed to drop ten felony counts against National Security Agency (NSA) whistleblower Thomas Drake. The collapse of the Drake prosecution is a victory over extreme abuse of government power and hopefully heralds the end of Obama witch hunts. It was a case of our government vengefully protecting its own bureaucratic interests at the expense of the public interest and of the personal civil liberties of Thomas Drake.
This prosecution should never have begun. Drake, like whistleblower Thomas Tamm, exhibited exactly the kind of integrity and patriotism we want in our public servants. To have treated them both as criminals is appalling, and sends the wrong message to federal and contractor employees. So while we can now herald the fact that it is over, we need to learn from the terrible legacy and do everything we can to make sure it cannot happen again.
The most obvious and basic lesson is that we need to create meaningful and safe channels for intelligence workers to disclose wrongdoing. The Drake case illustrates painfully that even when an intelligence community whistleblower goes by the book, he or she is forced to decide whether to give up and remain silent, or risk not just their job, but their freedom. The Whistleblower Protection Enhancement Act (WPEA) that died at the end of the last Congress would have created a system that might have saved Drake and Tamm from the nightmares they have endured. The WPEA has been reintroduced in the Senate, where we hope it will quickly pass, while we are still waiting for the bill to drop in the House. This reform must become law this year.
We understand that this prosecution was part of a coordinated effort by the intelligence agencies to specifically target a “leaker” from each agency in order to send a message to other employees that there is a “zero tolerance” policy for leaking. Hopefully, the very public humiliation of the failed Drake prosecution will spur DOJ and the NSA to reconsider their shoot-first-and-ask-questions-later post-Wikileaks plan. The intelligence community and the Justice Department deserve genuine condemnation for being so full of hubris that they believe the public has no right to know when its government is doing something wrong.
It was, I believe, not simply the weak case, nor as the DOJ claims, concerns about disclosing sensitive information, that caused the collapsed prosecution. We have witnessed plenty of specious cases pursued stubbornly by DOJ—given they regularly have the upper hand in judicial proceedings. In this case, I believe it was also the weight of the outcry from the public (special hat tip for the great work by our friends at the Government Accountability Project) to force the DOJ to back down. But how often will we see 60 Minutes and New Yorker profiles, Washington Post editorials, recognition as the Ridenhour Award Truth-teller, and face-to-face meetings with the President (never mind a random, direct encounter with the Attorney General, but that’s another story)? It should not take this herculean effort to stop the government from doing the wrong thing.
In the end, we need to create a system where the public interest is protected by the government, and not where the public needs to be protected from the government.
Danielle Brian is POGO’s Executive Director.
Portrait of Tom Drake by Robert Shetterly.