Former NSA Official’s Advice to Fellow Whistleblowers: “You Better Lawyer Up“

In a January interview with Michael Hastings of Rolling Stone, WikiLeaks founder Julian Assange expressed concern that the First Amendment, as we know it, is under attack.

“The U.S. government is trying to redefine what have been long-accepted journalistic methods,” he said, relaying to Hastings how he has been told that the Justice Department (DOJ) is preparing a case against him.

“If the Pentagon is to have its way; it will be the end of national-security journalism in the United States,” he remarked.

While this claim might seem hyperbolic to those persuaded by the federal government's campaign to make Assange out to be some sort of cyber Bin Laden, Assange's fears seem to be corroborated by the Obama DOJ's decision to charge more national security whistleblowers under the Espionage Act than all other administrations combined.

And perhaps no such case is more controversial and worrying than the failed prosecution of former National Security Agency (NSA) senior official turned whistleblower, Thomas Drake. Drake helped shed light on the Bush administration's warrantless wiretapping through two Congressional investigations of 9/11; a Defense Department Inspector General audit of the NSA regarding waste, fraud and constitutional abuse; and, finally, through the disclosure of non-classified information to Baltimore Sun reporter Siobhan Gorman in 2006 and 2007,which triggered the government's criminal investigation (Drake said that internal whistleblowing had already made officials eager to retaliate up until that point). The chronicling of Drake's case is extensive, but the controversy surrounding it can be summed up succinctly by author, blogger and Nation contributor Marcy Wheeler:

“Faced with the prospect of trying to convict a man for leaking unclassified information, the government frantically crafted a plea deal in the last days before the case was due to go to trial,” she said.

That is, he agreed to a substantially diluted plea deal four years after his house was first raided in the dead of night; after he was branded as a traitor, lost his job and his pension and ended up working at an Apple Store (which is no walk in the park, according to a report by Josh Eidelson of In These Times). And, to add insult to injury, the indictment was not filed by the DOJ of the Imperial President, George W. Bush, but by a president who campaigned on the idea that his would be the “Most Transparent Administration in History.”

Moreover, the plea wasn't struck until after sympathetic portraits of Drake were painted by the New Yorker's Jane Mayer and a “60 Minutes” profile of the case. A chance encounter with Attorney General Eric Holder at the Apple Store where Drake works also may have influenced the DOJ's decision to strike a deal, along with the lobbying efforts of Project on Government Oversight's Danielle Brian (who made an overture to President Obama on Drake's behalf). Finally, Drake also said that he demanded all felony charges be dropped before entering a plea agreement.

Regardless, the single misdemeanor Drake was charged with – “exceeding authorized use of a computer” – left a bitter taste in the whistleblower's mouth. In an email, he described it as “the equivalent of spitting on the sidewalk at [the] NSA with unclassified information.” It was a small price to pay to finally get the feds off his back.

When I met Drake last September, he was on Capitol Hill with a number of other whistleblowers and representatives from the Government Accountability Project (GAP), as part of an initiative to lobby members of Congress to pass the Whistleblower Protection Enhancement Act (a piece of legislation drafted by Sen. Daniel Akaka in 2009 which came close to passing in late 2010 before being secretly scuppered by an unidentified Republican senator – deemed by NPR and GAP to have been either Senator Kyl or Senator Sessions).

After a panel Q and A – which, unbelievably, was sparsely attended – Drake seemed eager to detail, in his opinion, why and how the DOJ brought the Espionage Act against him; why he believes that the DOJ, which he called “The Department of Injustice,” has been willing to get its fingernails dirty for the national security state; and how the Whistleblower Protection Enhancement Act might be able to counter the backlash against whistleblowers.

“Out McCarthy-ed McCarthy”

“For all intents and purposes, it made me an enemy of the state,” he said of the Espionage Act behind a wistful cringe, describing it as an “egregious statute.”

Drake also spoke of an irony in the DOJ's use of the law in its prosecution: He was specifically charged with violating section 793(e), a modification to the 1917 bill that was part of the McCarran Internal Security Act of 1950, and a piece of legislation that gave the government sweeping powers, rife for abuse, amid the Second Red Scare. The bill gave the federal government the authority to investigate those suspected of encouraging the creation of a “totalitarian dictatorship.” So, for blowing the whistle on the Bush administration's extrajudicial surveillance, Drake was effectively accused by the Obama administration of encouraging the establishment of a dictatorship.

“It was an inversion of what I did as a whistleblower,” Drake pointed out, saying that historians have described Sen. Pat McCarran (D-Nevada) – the sponsor of the aforementioned bill – as having “out McCarthy-ed McCarthy.”

The entire case against Drake might have made McCarthy proud, too. It all kicked off after The New York Times' James Risen published an article that delved into the details of the Bush administration's illegal eavesdropping. A witch hunt for the leaker ensued, and everyone who joined Drake in making the inspector general (IG) complaint had their homes raided by the FBI – a possible violation of federal law, if the Department of Defense (DoD) IG revealed those behind the Office of the Inspector General report to the feds. According to court documents, hard copies of the mistakenly retained DoD IG complaint – the source of three counts of Espionage Act violations – were destroyed; the grand jury may have been misled about the classification of some of the information retained by Drake, and, in what Drake described as “an insidious twist,” that information – supposedly evidence of his treason – had only been declared classified after the NSA found out he had it (most so-called ex poste facto legal maneuvers are considered unconstitutional) and was the basis for another Espionage Act violation; the other piece of information that evidenced espionage had been declared declassified after Drake's indictment (see p.80 of the March 31, 2011 court proceedings transcript), which evidenced beyond reasonable doubt that Drake hadn't “aided the enemy,” willingly or otherwise.

To sum up Drake's frustration at having been labeled a spy: of the five counts of violating the Espionage Act levied against him, three were based on an IG's report – destroyed, possibly illegally, by the government – which, his lawyers maintained, Drake “had no intention to bring them home, in violation of 18 U.S.C. § 793(e), or to harm his country,” and the other two counts were based on decidedly non-sensitive information.

Jesselyn Radack, GAP's homeland security director, and one of Drake's lawyers (a former DOJ whistleblower herself), pointed out that the idea that evidence in Drake's case was “too classified too try” was a “myth”:

“The real reason the case imploded is because the government was attempting to try him on information that it knew before it indicted him was unclassified, which should send chills down everyone's spine,” she said in a post on Daily Kos. [Emphasis hers.]

Drake said that federal officials tried to sidestep this inconvenient truth by telling him he “should have known” the material was classifiable – a legal concept that Congress summarily rejected in 1989 when, after President Reagan issued executive orders mandating the signing of non-disclosure agreements by all federal employees, the legislative branch passed the Anti-Gag Statute. Critics had said that Reagan's maneuver would have effectively created an Official Secrets Act in the US and handed inordinate power to the executive branch.

But with executive overreach the post-9/11 new normal, the trial went on until the government's unique legal interpretation ran out of steam.

Pushing the Envelope and Then Some

At the forefront of the Obama DOJ's case against Drake was a prosecutor who the defendant saw as perfect for a Kafkaesque trial: former Public Integrity Section Chief William Welch II.

“Why was he front and center?” Drake asked rhetorically.

Not only did Welch lack the experience for a case involving national security issues – he earned his spurs as an assistant US attorney in Massachusetts prosecuting corruption cases at the municipal level (“He doesn't have the background,” Drake said) – but he was also known to have violated legal conventions on a number of occasions.

Prior to the Drake case, Welch's stint as Public Integrity Section chief ended in disgrace. His team was cited for contempt of court in the corruption case against the late former Sen. Ted Stevens (R-Alaska) for “the systematic concealment of significant exculpatory evidence,” and for having “seriously damaged the testimony and credibility of the government's key witness.” The DOJ dropped its case against Stevens, but the citation was upheld even after Welch appealed the decision.

Accusations of employing dubious legal practices similarly dogged Welch before and after the Stevens and Drake cases. According to a July 2011 Washingtonian profile, Welch has been described as “tough-as-nails … [b]ut … often overly aggressive.” In three cases, the magazine detailed how Welch “hadn't turned over exculpatory evidence, sometimes after a judge had directed him to do so.” He was also accused by one attorney of “mounting a vindictive prosecution against a woman who had refused to cooperate with one of his investigations,” and by another “of trying to prevent a witness favorable to the defense from testifying.” And last November, in the case against former CIA official Jeffrey Sterling, Welch's team again was accused of failing to turn over exculpatory evidence to the defense on time, a move that led to the judge presiding over the case to bar two government witnesses from testifying.

Drake believes Welch was appointed to the case because of – and not in spite of – his reputation.

“He pushes the boundary of laws, statutes and ethics. The patterns of prosecutorial misconduct cited by the judges in the Stevens case and my own are similar,” he remarked. The DoD IG report that the prosecution said was destroyed would have helped the defense's case. As would have evidence that some of the allegedly classified information retained by Drake was either declassified after the indictment or had been unclassified the entire time. “Welch pushes the envelope and then some,” Drake said.

When asked for a comment, the DOJ defended the choice of personnel to oversee the case. “Bill Welch is a skilled prosecutor and an extraordinary public servant who has dedicated years of excellent service to the department,” Alisa Finelli, a DOJ spokesperson said.

And according to court documents, Judge Richard Bennett, the federal district court judge presiding over the case, praised Welch for his behavior throughout the case.

Nonetheless, Bennett was rather perturbed about the fact that Drake's life remained in limbo for over four years before the plea. He said in court that he was “very troubled, very troubled by the chronology of this case” – a statement that doesn't seem to comport with strong prosecutorial morals, even if Welch was a gentleman in court.

The “Largest Redistribution of Wealth in American History”

Beyond Welch's reputation, Drake also opined that the prosecutor's connections – he described DOJ Criminal Division head Lanny Breuer as Welch's “patron” – helped him land the gig, an assertion that fits the narrative of national security state apparatchiks circling the wagons to protect their golden goose.

“There are those who want to maintain the primacy of the institution,” Drake said. “Congress has been deafeningly silent.”

Not that it would be easy for representatives and senators to stamp out systemic abuses. Drake pointed out that the ballooning of what he called the “military-industrial-security-surveillance complex” has created deeply entrenched interests – “a jobs program,” as he described it – that Congress has little incentive to root out.

“It's the largest redistribution of wealth in American history,” he said.

“9/11 was like a gift to the NSA. It was like a blank check,” he added, remarking that the DOJ's clientele has grown as a result.

Finelli refuted the claim that the DOJ based the case on any sort of ulterior motives. “In every case, the Justice Department makes decisions based on the facts and the law only,” she said. “Any assertion to the contrary is wrong.”

But Drake's assertions, when compared to budgetary numbers, seem to hold water. Between 2001 and 2002 alone, for example, the department's budget increased from $20.4 billion to $24.1 billion – an increase of nearly 20 percent.

And when insiders such as Drake speak out on the public's behalf, the feds have been known to bring the hammer down – particularly under the Obama administration.

“Public servants are the best people to make sure that the law and Constitution are upheld by the government,” Drake said.

“This is the way we treat Americans who do their job?” Why didn't government prosecutors target Iraq fraudsters? Or NSA officials who violated the Foreign Intelligence Surveillance Act with their clandestine espionage of innocent Americans, Drake wondered.

“The Constitution is anathema to the National Security State,” he said.

But that's not to say that conscientious bureaucrats and technocrats don't have allies on Capitol Hill. The Whistleblower Protection Enhancement Act (WPEA) – the draft of which includes measures that deter retaliatory measures, extend protection to employees of contractors and give potential defendants more access to judicial proceedings – has powerful friends on Capitol Hill, such as House Oversight Committee Chairman Darrell Issa (R-California). Despite the failure of the WPEA to pass in late 2010, it could get a second look – particularly as Congress angles to regain the public trust in light of record lower approval ratings for the legislative branch.

Drake called the legislation “a step forward.”

“For national security employees, the Whistleblower Protection Enhancement Act could be enough to halt reprisals,” he said.

But there are still a number of concerns that the bill is insufficient, particularly as Congress members have altered it. In the House last year, during the 2011 version of the bill's mark up from the Oversight Committee, for example, key statutes guaranteeing government whistleblowers the right to a jury trial in response to retaliation were eviscerated with the support of supposed whistleblower champion Representative Issa.

Moreover, it's hard to turn back decades of secrecy culture with a simple bill.

“Legislation doesn't matter if agencies are allowed to retroactively decide what's classified,” Drake commented. He pointed out a stark example of the prevailing conventional wisdom, citing Director of National Intelligence James Clapper's August 2010 decree that “people in the intelligence business should be like my grandchildren – seen but not heard.”

And if other examples of national security law being elevated above long-held free speech protections are any indication, would-be government whistleblowers nervous about arrest might do well to hold their breath. Even if the WPEA is passed.

Just by directly encouraging an officially recognized terrorist group to eschew violence, a private citizen, institution or NGO can be charged with material support for terrorism (that is, of course, unless that terrorist group has friends on Capitol Hill). And the FBI's aggressive monitoring of antiwar groups and the Department of Homeland Security's surveillance of journalists don't bode well for transparency and free speech advocates; neither do PATRIOT Act provisions, which Sens. Ron Wyden (D-Oregon) and Mark Udall (D-Colorado) described as “secret law,” and frivolous but difficult-to-reverse additions to the “no-fly” list (Radack was on the no-fly list for years after disclosing interrogators' abuse of John Walker Lindh).

Given the mentality hostile to transparency and accountability stalking the corridors of power, Drake offered advice to any government employee considering blowing the whistle: “You better lawyer up.”

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