Leaks and the Law: The Story of Thomas Drake

The former NSA official reached a plea deal with the government, but the case still raises questions about the public’s right to know

"I will not live in silence," said Thomas A. Drake, in Washington, D.C. in May. He was charged with retaining national defense information. (Brendan Hoffman / Prime)
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Understanding these charges requires a short course in U.S. espionage law. Congress passed the original Espionage Act on June 15, 1917—two months after the United States entered World War I—and President Woodrow Wilson signed it into law the same day. There was no formal system for classifying nonmilitary information until President Harry Truman established one, by executive order, in September 1951. With the exception of information dealing with codes and communications intelligence, the language of the espionage laws refers not to classified documents per se, but to information “relating to the national defense”—a broader category.

In practice, prosecutors are usually reluctant to bring a case under the espionage laws unless they can show that a defendant has revealed classified information; jurors might be reluctant to conclude that the release of unclassified information has harmed national security. But in Drake’s case, the government was careful to say that the documents he allegedly leaked were related, in the language of the statute, “to the national defense.”

The point was highlighted at a pre-trial hearing this past March 31, when Drake’s attorneys—public defenders Deborah L. Boardman and James Wyda—produced a two-page document described in the indictment as “classified” that was clearly stamped “unclassified.”

Judge Richard D. Bennett turned to the government attorneys. “Your position on this is that, despite an error with respect to that particular document having ‘Unclassified’ stamped on it, it still related to the national defense...?”

“Yeah, that’s right,” replied Assistant U.S. Attorney William M. Welch II, according to a transcript of the hearing. Bennett then denied a defense motion to dismiss the count of the indictment relating to the document in question. In subsequent rulings, however, Bennett said the prosecution could not substitute unclassified summaries of classified evidence during the trial, severely limiting the government’s case.

In his Ridenhour Prize acceptance speech, Drake insisted that the government’s prosecution was intent “not on serving justice, but on meting out retaliation, reprisal and retribution for the purpose of relentlessly punishing a whistleblower,” and on warning potential whistleblowers that “not only can you lose your job but also your very freedom.” Dissent, he added, “has become the mark of a traitor.... as an American, I will not live in silence to cover for the government’s sins.”

Strong words, but Drake’s case raises another question. Why has the Obama administration pursued so many leakers?

All presidents abhor leaks. They see leaks as a challenge to their authority, as a sign that people around them, even their closest advisers, are talking out of turn. There will be no more “blabbing secrets to the media,” James Clapper warned in a memo to personnel when he took over as President Obama’s director of national intelligence last year. Of course, some leaks may interfere with the execution of government policy, or indeed harm national security.

Lucy A. Dalglish, executive director of the Reporters Committee for Freedom of the Press, says the Obama administration “is clearly making a point of going after people who have access to sensitive and classified information. They are aggressively pursuing government employees who have access to that information and release it to journalists.” Technology has made the job of government investigators much easier, she adds. “If you are a public employee, they can get your e-mail records. They can get anyone’s phone records. People these days leave electronic trails.”

As a result, she says, potential whistleblowers will think twice before going to the press. “It’s going to have a chilling effect—sources will be less likely to turn information over to reporters,” she said. “As a result citizens will have less of the information they need about what is going on in our country and who they should vote for.”


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