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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And in January of this year, Jeffrey A. Sterling, 43, a former CIA employee, was arrested and charged with leaking defense information to “an author employed by a national newspaper,” a description that pointed to reporter James Risen of the New York Times. In his 2006 book, State of War, Risen disclosed a failed CIA operation, code-named Merlin, in which a former Russian nuclear scientist who had defected to the United States was sent to Iran with a design for a nuclear weapons device. The blueprint contained a flaw meant to disrupt the Iranian weapons program. Certain that Iranian experts would quickly spot the flaw, the Russian scientist told them about it. The indictment of Sterling, in circumspect language, says in effect that he had been the Russian’s case officer. His trial was scheduled for September 12.

According to Jesselyn A. Radack of the Government Accountability Project, a whistleblower advocacy organization, the Obama administration “has brought more leak prosecutions than all previous presidential administrations combined.” Radack, a former Justice Department attorney, was herself a whistleblower, having told a reporter in 2002 that FBI interrogators violated the right of American terrorism suspect John Walker Lindh to have an attorney present during questioning. (Lindh later pleaded guilty to two charges and is serving a 20-year prison sentence.) Radack introduced Drake at a reception at the National Press Club in Washington, D.C. this past April, at which he received the Ridenhour Prize for Truth-Telling. The $10,000 award is named for Ron Ridenhour, the Vietnam veteran who in 1969 wrote to Congress, President Richard M. Nixon and the Pentagon in an attempt to expose the killing of civilians in the Vietnamese village of My Lai the previous year; the massacre was later brought to light by reporter Seymour Hersh.

“I did not take an oath to support and defend government illegalities, violations of the Constitution or turn a blind eye to massive fraud, waste and abuse,” Drake said in accepting the award, his first public comment on his case. (He declined to be interviewed for this article.) His oath to defend the Constitution, he said, “took precedence...otherwise I would have been complicit.”

The Justice Department has taken a different view. When Drake was indicted, Assistant Attorney General Lanny A. Breuer issued a statement saying, “Our national security demands that the sort of conduct alleged here—violating the government’s trust by illegally retaining and disclosing classified information—be prosecuted and pros­ecuted vigorously.”

Drake’s case marked only the fourth time the government had invoked the espionage laws to prosecute leakers of information related to national defense.

The first case was that of Daniel Ellsberg, who in 1971 leaked the Pentagon Papers, a secret history of the Vietnam War, to the New York Times. Two years later, Judge William Byrne Jr. dismissed the charges against Ellsberg due to “improper government conduct,” including tapping Ellsberg’s telephone and breaking into his psychiatrist’s office in search of damaging information about him. The Nixon White House also tried to suborn Judge Byrne, offering him the job of FBI director while he was presiding over the trial.

Next came the Reagan administration’s prosecution of Samuel Loring Morison, a Navy intelligence analyst convicted in 1985 and sentenced to two years in prison for leaking—to Jane’s Defence Weekly, the British military publication—three satellite photos of a Soviet ship under construction. After Morison was released from prison, he was pardoned by President Bill Clinton.

And in 2005, the Bush administration charged Lawrence A. Franklin, a Pentagon official, with leaking classified information on Iran and other intelligence to two employees of the American Israel Public Affairs Committee, the pro-Israel lobby. Franklin was convicted and sentenced to more than 12 years in prison, but in 2009 that was reduced to probation and ten months in a halfway house after the Obama administration dropped its case against the two AIPAC officials.

Tom Drake, who is 54, married and the father of five sons, worked in intelligence for most of his adult life. He volunteered for the Air Force in 1979 and was assigned as a cryptologic linguist working on signals intelligence—information derived from the interception of foreign electronic communications—and flying on spy planes that scoop up such data. He later worked briefly for the CIA. He received a bachelor’s degree in 1986 from the University of Maryland’s program in Heidelberg, Germany, and in 1989 a master’s degree in international relations and comparative politics from the University of Arizona. Beginning in 1989, he worked for several NSA contractors until he joined the agency as a senior official in the Signals Intelligence Directorate at the agency’s headquarters in Fort Meade, Maryland. His first day on the job was September 11, 2001.

The NSA, which is so secretive that some joke its initials stand for “No Such Agency,” collects signals intelligence across the globe from listening platforms under the sea, in outer space, in foreign countries, on ships and on aircraft. Technically part of the Defense Department, it receives a sizable chunk of the $80 billion annual U.S. intelligence budget and has perhaps 40,000 employees, although its exact budget and size are secret. In addition to collecting electronic intelligence, the agency develops U.S. codes and tries to break the codes of other countries.


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