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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Despite the NSA’s secrecy, it was widely reported that the agency has had great difficulty keeping up with the vast pools of data it collected—billions of e-mails sent daily; text and voice messages from cell phones, some of which are encrypted; and the millions of international telephone calls that pass through the United States each day.

Developing the ability to cull intelligence from so much data became even more critical after 9/11. With the secret authorization of President George W. Bush, Air Force Gen. Michael V. Hayden, then the NSA director, initiated a program of intercepting international phone calls and e-mails of people in the United States without a warrant to do so. The program was launched even though the Foreign Intelligence Surveillance Act (FISA) provided for a special court to approve wiretap warrants and the Fourth Amendment of the Constitution prohibits unreasonable searches and seizures. The Bush administration said it relied on the president’s constitutional power as commander in chief of the armed forces when it authorized the secret eavesdropping. It also said the wiretapping was justified by a Congressional resolution passed after 9/11 authorizing the president to use “all necessary and appropriate force” against those responsible for the attacks.

The warrantless wiretapping was disclosed in 2005 by James Risen and Eric Lichtblau of the New York Times. They received a Pulitzer Prize for their reporting, and the government began investigating the source of the leak. Several months after the Times wiretapping story appeared, USA Today disclosed that the NSA was collecting the records of billions of domestic telephone calls with the cooperation of major telecommunications companies. (A 2008 revision of the FISA law has expanded the executive branch’s authority to conduct electronic surveillance and reduced court review of some operations.)

Drake’s troubles began when he became convinced that an NSA program intended to glean important intelligence, code-named Trailblazer, had turned into a boondoggle that cost more than a billion dollars and violated U.S. citizens’ privacy rights. He and a small group of like-minded NSA officials argued that an alternate program, named ThinThread, could sift through the agency’s oceans of data more efficiently and without violating citizens’ privacy. (ThinThread cloaked individual names while allowing their identification if necessary.) Drake has said that if the program had been fully deployed, it would likely have detected intelligence related to Al Qaeda’s movements before 9/11.

When Drake took his concerns to his immediate boss, he was told to take them to the NSA inspector general. He did. He also testified under subpoena in 2001 before a House intelligence subcommittee and in 2002 before the joint Congressional inquiry on 9/11. He spoke to the Defense Department’s inspector general as well. To him it seemed that his testimony had no effect.

In 2005, Drake heard from Diane Roark, a former Republican staff member on the House intelligence committee who had monitored the NSA. According to the indictment of Drake, Roark, identified only as Person A, “asked defendant Drake if he would speak to Reporter A,” an apparent reference to Siobhan Gorman, then a Baltimore Sun reporter covering intelligence agencies. Roark says she didn’t. “I never urged him to do it,” she said in an interview. “I knew he could lose his job.”

In any case, Drake contacted Gorman, and they subsequently exchanged encrypted e-mails, according to the indictment. At a court hearing in March, defense attorneys confirmed that Drake had given Gorman two documents, but said Drake believed they were unclassified. (Gorman, now with the Wall Street Journal, declined to comment for this article.)

In 2006 and 2007, Gorman wrote a series of articles for the Sun about the NSA, focusing on the intra-agency controversy over Trailblazer and Thin­Thread. Her stories, citing several sources and not naming Drake, reported that Trailblazer had been abandoned because it was over budget and ineffective.

In November 2007, federal agents raided Drake’s house. He has said they questioned him about the leak to the New York Times regarding warrantless wiretapping and that he told them he had not spoken to the Times. He has also said he told them he provided unclassified information about Trailblazer to the Sun. The government’s investigation continued, and in April 2010 a federal grand jury in Baltimore issued the indictment against him.

Drake was not charged with classic espionage—that is, spying for a foreign power. (The word “espionage,” in fact, appears only in the title of the relevant section of the U.S. Code, not in the statutes themselves.) Rather, the five counts under the Espionage Act accused him of “willful retention of national defense information”—the unauthorized possession of documents relating to the national defense and failure to return them to officials entitled to receive them.


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