Possible Pentagon Destruction of Evidence in NSA Leak Case Probed

Washington – Two government watchdog agencies are investigating whether the Pentagon inspector general destroyed evidence improperly during the high-profile leak investigation of former National Security Agency senior official Thomas Drake.

The Justice Department acknowledged the probes in a letter last week to a federal magistrate judge who recently received the allegations from Drake’s lawyers. The judge is determining whether she should take further action in a case that ended in 2011 when Drake pleaded guilty to a misdemeanor charge.

The Justice Department told the judge the inquiries are being conducted by a committee that looks into allegations of misconduct by inspectors general offices and the Office of Special Counsel, a federal agency that investigates whistleblower complaints.

“DOD OIG’s handling of documents . . . is within the scope of an ongoing inquiry by the Office of Special Counsel (OSC),” Raymond Hulser, the chief of the Justice Department’s Public Integrity Section, wrote to U.S. Magistrate Judge Stephanie Gallagher in a letter dated June 11. “In the event that OSC finds evidence of criminal conduct during the course of its work, it will refer that evidence to the Department of Justice for appropriate action.”

The pair of executive branch probes renews questions about the federal government’s controversial pursuit of Drake on charges that he improperly retained classified information under the Espionage Act.

Drake was one of the first officials to be targeted by the Obama administration in its controversial use of the Espionage Act against those it suspects of providing classified information to the news media.

He was investigated after he’d cooperated with congressional and Pentagon inspector general inquiries of the NSA’s surveillance programs.

When the Justice Department’s case against Drake unraveled in 2011, U.S. District Judge Richard D. Bennett criticized the government for the prosecution and sentenced Drake to probation.

It’s unclear what action, if any, Magistrate Judge Gallagher could order. The improper destruction of documents in a criminal case can violate evidence-retention rules that government lawyers are required to follow and can lead to sanctions. Drake’s criminal case is over, however, and the prosecutors themselves are not accused of wrongdoing.

The Justice Department, the Pentagon inspector general’s office and Drake’s lawyers declined to comment.

The Justice Department’s letter to Gallagher wasn’t filed publicly in court, although McClatchy obtained a copy.

The government’s handling of documents first became an issue during the evidence-gathering stage of Drake’s prosecution, when his criminal defense lawyers sought records related to his whistleblower cooperation with the Pentagon inspector general’s office in order to defend him.

At the time, the Justice Department told the judge that most of the “hard copy documents” related to the Pentagon inspector general’s office audit that Drake had cooperated with couldn’t be provided to the defense because they’d been destroyed “pursuant to a standard document destruction policy.”

Drake’s current lawyers, who didn’t represent him in the criminal case, told the court in a letter in April that they learned otherwise while representing Drake in his recent whistleblower claim against the NSA.

Drake’s lawyers wrote that the Pentagon inspector general’s office destroyed the documents “outside of normal policy and to impede . . . the criminal case.”

The allegations arose out of a series of still-secret complaints filed by multiple former and current officials in the Pentagon inspector general’s office about the office’s handling of whistleblower cases, including Drake’s.

The group accuses senior officials within the inspector general’s office – including those with the general counsel’s office – of attempting to water down or change findings in whistleblower investigations because of fear of political controversy.

The destruction of the records allegedly prompted a debate within the inspector general’s office over whether they’d been improperly destroyed to cover up the office’s role in the leak investigation.

Some officials in the inspector general’s office were concerned that Drake and other NSA sources weren’t being protected sufficiently as sources during the audit of NSA surveillance-related contracts.

In the letter sent last week, the Justice Department defended the former prosecutors in the case.

“We have spoken to the prosecutors,” Hulser wrote. “They have confirmed that the representation that the government made . . . regarding the destruction of records related to Mr. Drake’s whistleblower claim was based on representations that were made to the trial team by DOD IG.”

Hulser told the judge that the Justice Department referred Drake’s allegations to the Council of Inspectors General on Integrity and Efficiency, which investigates allegations of misconduct by senior officials within inspectors general offices.

“I wish to assure the court that this office takes very seriously its duty of candor toward the court,” he wrote.

The Pentagon inspector general’s office concluded last year that Drake had made protected disclosures to its office as a whistleblower. However, it rejected his claims that the NSA had retaliated against him as a result.

NSA officials who suspended his security clearance denied they’d retaliated against Drake, saying they did not know Drake had cooperated with the Pentagon inspector general’s office.

However, Drake’s lawyers criticized the conclusion by the Pentagon inspector general’s office because it looked at only two of the 10 years of alleged retaliation detailed in his account.

The office did not explain the decision, only saying the allegations were “outside the time period considered practical for investigation.”