BALTIMORE — Prosecutors asked a federal judge Friday to drop their Espionage Act case against National Security Agency whistleblower Thomas Drake, avoiding a trial that could have alienated Obama administration allies and sent Drake to prison for the rest of his life.
So instead of going to trial Monday on charges he violated his country's espionage laws, Drake will return to his job in an Apple computer store in the Washington area and his doctoral studies in public administration.
The government's backtracking on the case comes as it pursues charges against four others under the act, regarded by some legal experts as vague and overbroad. These national security cases have angered many civil liberties groups, who say the government overreaches when it invokes espionage statutes in leak cases.
But the Obama administration is faced with the problem of how to discourage the unauthorized disclosure of sensitive information, especially after the whistleblowing website WikiLeaks obtained hundreds of thousands of diplomatic cables and military field reports and shared them with the media.
Drake, an Air Force veteran, was originally charged with illegally keeping classified documents in his home, lying to federal investigators and obstructing justice. Conviction on all 10 counts could have sent him to prison for 35 years. Instead, the 54-year-old resident of Glenwood pleaded guilty in U.S. District Court to the unauthorized use of a government computer.
U.S. District Judge Richard Bennett is expected to dismiss the felony charges at Drake's sentencing July 15.
The lesser charge carries a penalty of up to a year in prison and a $100,000 fine. But the Government Accountability Project, a whistleblower advocacy group that aided Drake's defense, said it expects the prosecution to recommend he spend no time in prison nor pay a fine.
As the judge pronounced Drake guilty, he stood with a slight stoop, his fists clenching and unclenching. He waved off questions Friday morning as he walked out of the courthouse carrying an expose of the NSA's operations after the Sept. 11 attacks titled "The Shadow Factory."
His defense counsel, Debbie Boardman and Jim Wyda, issued a statement.
"Tom Drake never should have been charged under the Espionage Act. Tom never intended to harm his country. And he didn't," they wrote.
The case against Drake collapsed after the judge ruled that summaries of four classified documents couldn't be used in the trial. Prosecutors asked to withdraw the documents Sunday as evidence, saying the originals would disclose a telecommunications technology targeted by NSA eavesdropping.
Assistant Attorney General Lanny Breuer said in a statement that prosecutors had to balance "holding accountable those who break our laws, while not disclosing highly sensitive information that our intelligence agencies conclude would be harmful to our nation's security if used at trial."
The government claimed that Drake had passed NSA information to a reporter. Court documents showed she was Siobhan Gorman, who wrote several articles in The Baltimore Sun in 2006 and 2007 about mismanagement and dubious legal practices by the NSA
The government never disclosed the contents of any of the documents they accused Drake of leaking. But they are thought to be related to the NSA's internal debate over Trailblazer, an ill-fated project launched in 2002 to overhaul vast computer systems which capture and analyze information flooding in from around the world.
Drake and a small group of internal critics regarded Trailblazer as a billion-dollar boondoggle that benefited defense contractors. They lost a struggle to get the NSA to adopt a much cheaper, internally designed system called ThinThread. Some critics claim that ThinThread might have alerted the U.S. to the Sept. 11 attacks.
Drake worked with four former NSA employees who filed a whistleblower complaint about Trailblazer with the Department of Defense inspector general's office. Investigators issued a report in 2005, but it has remained classified.
As a candidate, Barack Obama called for a more open government and lauded federal workers who reported wrongdoing. But President Obama has taken a hard line with those charged with leaking national security secrets.
His administration has pursued cases against five government leakers under espionage statutes, more than any of his recent predecessors. Obama has come under heavy criticism for the crackdown from civil liberties advocates.
Jesselyn Radack of the Government Accountability Project said that during plea negotiations Drake balked at admitting to leaking classified information.
"I think he felt it was bizarre to essentially make a false statement to get out of a charge of having made a false statement to the government," she said, referring to charges he had lied to the FBI.
The NSA employs an army of linguists, cryptologists and computer experts to snoop on electronic communications across the globe from its headquarters at Fort Meade, south of Baltimore. The need for secrecy is drilled into NSA employees, who sometimes joke the initials stand for "Never Say Anything," and "No Such Agency."
James Bamford, the author of "The Shadow Factory" and two other books on the NSA, says it is the country's largest, costliest and most secretive spying organization. "And it's arguably the most influential," he said.
He sat in on Friday's hearing and said defense attorneys had asked him to testify in the trial as an expert witness. As far he knows, Drake was the first NSA official accused of leaking to the press.
Bamford called the Drake prosecution "a very important case" because it set a precedent for the four similar Espionage Act trials to follow.