Jacob Heilbrunn

The Obama Administration's Leak Case Falls Apart

The Obama administration's prosecution of former National Security Agency senior manager Thomas A. Drake for leaking classified information about data collection is collapsing. No one would argue that the government shouldn't prosecute violations of handling classified information. But the case against Drake, which relies on the dubious provisions of the 1917 Espionage Act, has always been unpersuasive. It is more redolent of an effort to suppress and punish a legitimate whistle-blower than to apprehend a genuine culprit.

Drake's concerns about privacy violations by the NSA and the Bush administration appear to be fully justified. Senators Mark Wyden and Mark Udall, who are members of the Senate Intelligence Committee, are sounding alarms about the extent of spying on American citizens under the Patriot Act. According to Wyden, "I want to deliver a warning this afternoon: When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry.”

The Drake case is cause for perturbation as well. Drake blew the whistle on an expensive and failed NSA data-sifting program called Trailblazer that was promoted by then-NSA head Michael Hayden. The NSA was embarrassed by the appearance of stories in the Baltimore Sun showcasing its bungling. It went after Drake. The prosecutors at the Justice Department are guilty of gross overreach: apparently, they even contemplated charging Drake with being part of a conspiracy. Shades of the Moscow purge trials!

Now, as the Washington Post reports, federal prosecutors are going to withdraw documents that were supposedly going to prove that Drake was guilty of unlawfully possessing classified documents. Even though Drake is not accused of being a spy--he supplied a reporter with information that he believed demonstrated that the NSA was overreaching in its spying efforts--he is being targeted under the Espionage Act. But the act has proven an unwieldy instrument, as the case against former AIPAC official Stephen Rosen demonstrates as well--the Justice Department ended up asking the charges to be dismissed.

It's hardly a secret that the Bush administration overreached in its rush to compensate for its failure to detect the 9/11 plot. Some of the plotters were themselves ensconced in a motel near the NSA in Laurel, MD for a few days. The NSA worked overtime to try and get up to speed. Now the government, as Jane Mayer shows in the New Yorker, has tried to paint Drake as a subversive enemy:


The government argues that Drake recklessly endangered the lives of American servicemen. “This is not an issue of benign documents,” William M. Welch II, the senior litigation counsel who is prosecuting the case, argued at a hearing in March, 2010. The N.S.A., he went on, collects “intelligence for the soldier in the field. So when individuals go out and they harm that ability, our intelligence goes dark and our soldier in the field gets harmed.”


This is rhetoric straight out of the Bush administration. Whether Drake acted appropriately or not is one question. But the notion that he endangered national security is specious. Drake shouldn't be pilloried for trying to alert the public to egregious shortcomings at the NSA. Instead, his concerns should have been taken seriously. And still should.