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Jesselyn Radack

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Why Thomas Drake Is Not an Enemy of the State

Posted: 05/19/11 04:40 PM ET

Former National Security Agency (NSA) senior official Thomas Drake is a whistleblower. Through legal and proper channels, Drake disclosed massive corruption, gross waste and mismanagement to tune of billions of taxpayer dollars, and, worse, widespread illegal domestic surveillance at the NSA.

When President Obama first took office, he applauded whistleblowers as "often the best source of information about waste, fraud, and abuse in government." He said that "such acts of courage and patriotism... should be encouraged rather than stifled."



Given these remarks, Thomas Drake is exactly the type of whistleblower that the Obama administration should protect. However, under President Obama's leadership, the Justice Department has labeled Drake an enemy of the state, and charged him with violating the Espionage Act -- an archaic law intended to prosecute spies, not whistleblowers. Drake's prosecution is selective and retaliatory.

Drake discovered that the NSA was illegally spying on Americans, wasting billions of taxpayer dollars on a failed surveillance program, and had rejected alternatives that provided valuable intelligence to protect national security while protecting Americans' privacy. Rather than remain silent and complicit, Drake disclosed the wrongdoing to his superiors, the Department of Defense Inspector General, and the Congressional Intelligence Committees.


Jane Mayer's explosive piece in The New Yorker provides stunning insight into NSA's secretive world and the corruption and illegality Drake challenged through proper channels. Giving his first public interview on the case, Drake explained the disastrous transformation at NSA after 9/11: "It wasn't just that the brakes came off after 9/11 -- we were in a whole different vehicle." Drake elaborated: "this was a violation of everything I knew and believed as an American. We were making the Nixon Administration look like pikers."

Three other former NSA employees and a former congressional staffer were equally concerned, and filed a formal complaint with the Department of Defense Inspector General. Drake served as a key material witness in the years-long investigation, which substantiated their concerns.

Drake took his unclassified concerns about NSA's billion-dollar boondoggle to a Baltimore Sun reporter, who published an award-winning series of articles embarrassing to the NSA. Drake never gave classified information to the reporter -- it was one of the conditions he set before speaking with her -- and, tellingly, Drake is not charged with disclosing classified information.

The New Yorker details how the Inspector General co-complainants and Drake were targeted as part of a massive investigation into the sources for the Pulitzer Prize-winning New York Times article revealing NSA's warrantless wiretapping program. All the complainants were criminally investigated, and three were subjected to armed raids, which they felt were retribution for filing the Inspector General complaint. Even though he was not a New York Times source, Drake received the worst retribution for his whistleblowing, and is only person to be indicted as a result of the investigation.

Drake is charged with improperly retaining -- not disclosing -- classified information. Other government officials accused of improper retention have not been subject to such grave charges. The New Yorker describes how former C.I.A. director John Deutch and former Attorney General Alberto Gonzales received lesser punishments for taking classified documents home and how former Clinton Administration official Sandy Berger's smuggling of classified documents out of a federal building was treated a misdemeanor. Yet, Drake is being treated like a spy. Even a conservative secrecy advocate at the Hudson Institute, Gabriel Schoenfeld, told The New Yorker that "The selectivity of the prosecutions here is nightmarish. It's a broken system."

Mayer describes the far-reaching implications for Drake's case:

"Because reporters often retain unauthorized defense documents, Drake's conviction would establish a legal precedent making it possible to prosecute journalists as spies. 'It poses a grave threat to the mechanism by which we learn most of what the government does,' [Mort] Halperin [of the Open Society Institute] says."

Our government cannot hide illegality behind secrecy and should not be permitted to silence and punish whistleblowers using our criminal justice system.

Drake's trial is set to begin on June 13, 2011. He is facing 35 years in prison.


If you agree that Drake is not an enemy of the state, please show your support by signing the petition to Congress and the Attorney General demanding accountability for the selective prosecution of Thomas Drake: http://www.change.org/petitions/demand-accountability-for-the-selective-prosecution-of-nsa-whistleblower-tom-drake