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"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)

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

There is, it must be noted, a double standard in the handling of leaks of classified information. In Washington, the same senior officials who deplore leaks and warn that they imperil national security regularly hold “backgrounders,” calling in reporters to discuss policies, intelligence information and other sensitive issues with the understanding that the information can be attributed only to “administration officials” or some other similarly vague source. The backgrounder is really a kind of group leak.

Backgrounders have been a Washington institution for years. Even presidents employ them. As the columnist James Reston famously noted, “The ship of state is the only known vessel that leaks from the top.” Lower-level officials who divulge secrets can be jailed, but presidents and other high officials have often included classified material in their memoirs.

Despite this double standard, Congress has recognized that it is often in the public interest for government employees to report wrongdoing and that public servants who do so should be protected from retaliation by their superiors. In 1989, Congress enacted the Whistleblower Protection Act, designed to protect employees who report violations of law, gross mismanagement, waste, abuse of authority or dangers to public health and safety.

Critics say the statute has too often failed to prevent retaliation against whistleblowers. Repeated efforts to pass a stronger law failed this past December when a single senator anonymously placed a “hold” on the bill. The legislation would have covered workers at airports, at nuclear facilities and in law enforcement, including the FBI. Earlier versions of the bill, backed by the Obama administration, would have included employees of intelligence and national security agencies, but House Republicans, apparently worried about leaks on the scale of the WikiLeaks disclosures, cut those provisions.

Meanwhile, whistleblowers may draw solace from reports this past April that the Justice Department had suspended its investigation of Thomas Tamm, a former department lawyer. Tamm has said he was a source for the 2005 New York Times story disclosing the existence of the warrantless wiretapping program. After a probe lasting five years, that leak case was effectively closed. But that decision did not close the case of U.S.A. v. Thomas Andrews Drake.

David Wise has written several books on national security. The latest is Tiger Trap: America’s Secret Spy War with China.

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