In a decisive victory for whistleblower advocates, the Justice Department dropped 10 criminal charges against former National Security Agency official Thomas Drake accusing him of "illegally possessing classified information, obstructing the investigation into the leaks and lying to the FBI." Drake plead guilty on Friday to a misdemeanor count of "exceeding his authorized use of a NSA computer in 2006 and 2007," reports Reuters. If convicted under the Espionage Act of 1937, Drake faced up to 35 years in prison. With the trial scheduled to begin on Monday, Talking Points Memo's Ryan Reilly called the misdemeanor charge a "major concession for the Justice Department." So why did the government's case against Drake fall apart? Was it just poorly conceived? Or did high-impact profiles in The New Yorker and 60 Minutes shame the government into dropping the case? Here are the competing arguments.
The government's case was just problematic To recap, Blake was charged for leaking classified information to a Baltimore Sun reporter in the aftermath of 9/11. Drake believed the NSA was mismanaging its resources by building a bloated, inept surveillance system called "Trailblazer" when it already had a cheaper, more efficient system called "Thin Thread." If the case had gone to trial, the government may have had to share information about its top secret NSA surveillance system. Politico's Josh Gerstein depicts the frustration felt by federal prosecutors today. "FBI and NSA officials key to the prosecution… sat stern-faced through the court hearing capping what many analysts view as a humiliating turn of events for the government in a case officials once painted as an outrageous breach of national security," he wrote. In a statement, the Justice Department said it caved because it didn't want to give up sensitive national security secrets during the trial. “In cases involving classified information, we must always strike the careful balance between 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,” said the head of the Justice Department’s Criminal Division. If you take the Justice Department at it's word, that's why Thomas Drake isn't serving any time in prison today.
Favorable press coverage made the difference In the last two months, it's not over-stating anything to say Drake had the media on his side. In print, there was a nearly 10,000 word profile by The New Yorker's Jane Mayer in late May. Mayer's profile featured key quotes from Thomas Tamm, a former Justice Department lawyer who in 2008 admitted to leaking details of the Bush administration's NSA surveilance program to The New York Times. “The program he talked to the Baltimore Sun about was a failure and wasted billions of dollars,” Tamm told Mayer. "It’s embarrassing to the N.S.A., but it’s not giving aid and comfort to the enemy.” He also chided President Obama for allowing the prosecution to move forward. “It’s so disappointing from someone who was a constitutional-law professor, and who made all those campaign promises." On television, on May 22, 60 Minutes aired a lengthy piece on Drake depicting him as a protector of the country, bogged down by his inept superiors and forced to leak information after exhausting all other efforts to rectify the NSA's backward surveillance system. Here's a clip from the broadcast.
Following the coverage, Scott Horton at Harper's writes that Drake's intentions were clear. "He has a strong record of public service, has received important awards, and is widely viewed as a patriotic, conscientious whistleblower whose actions embarrassed political figures but did not harm national security." To the Government Accountability Project's Jesselyn Radack, the press's role in this affair was clear. Politico reports:
She attributed the government’s flexible stance in part to sympathetic media coverage Drake received in recent weeks from The New Yorker and “60 Minutes,” among others.
“This is awkward because it involves you guys,” Radack told a clutch of reporters outside the courtroom Friday.“The almost universally favorable media attention … has played a role.”