In the sixth episode of the “Primary Sources” podcast, NSA whistleblower Thomas Drake joins host Chip Gibbons to discuss how he became the United States Justice Department’s “signature case” for resurrecting the Espionage Act in the 2000s.
Drake maintained his oath to the U.S. Constitution by challenging post-9/11 surveillance programs, when it was clear they would not adequately protect the privacy of Americans. He filed an internal complaint and ultimately became the target of a leak investigation.
Later, Drake contacted a reporter at the Baltimore Sun with information on ThinThread, a program that NSA rejected which would have collected data while upholding citizens’ constitutional rights.
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Listen to Thomas Drake on “Primary Sources”:
Thomas Drake recalls President Barack Obama “did not take kindly to leaks of any kind. It didn’t matter what it was. It didn’t matter if it was to improve transparency in government, highlight government wrongdoing. [And] if anything now, you’re going to be punished for it and punished severely.”
Punishing whistleblowers for unauthorized disclosures of information is part of Obama’s presidential legacy, and Drake says a fundamental question is, why would he resurrect the Espionage Act?
“This was to send an incredibly chilling message, and you have to remember the Espionage Act, without getting into the details of its history, was what was leftover from the excesses of the Wilson administration in World War. That if you even spoke out against World War I you were considered to be a threat to the United States.”
The government accused Drake of retaining documents “for the purposes of disclosure,” twisting the criminal code.
“All documents were unclassified,” Drake notes. And, “What happened was the government retroactively classified them.”
Prosecutors even argued it did not matter whether documents were classified or not classified.
One vivid memory Drake shares is the moment in April 2008 when he was worried about how he would defend himself. He was in Central Park in New York trying to clear his head. He was on administrative leave and still an NSA employee. He realized he faced “really, really long odds.” He faced the distinct possibility that he would end up in prison for the rest of his life—the same bleak prospect Pentagon Papers whistleblower Daniel Ellsberg had faced.
An FBI administrative agent, who was part of the team that raided his home, called. He was still cooperating with the government. They asked him to come to the field office in Maryland outside Washington, D.C.
“When I got there, they said there’s someone here to see you,” Drake recounts. “Well, nondescript office. No windows. And guess who walks in? The prosecutor. I mean, we’re talking this is heavy duty, and he basically looks at me and in no uncertain terms says, how would you like to spend the rest of your life in prison, Mr. Drake? Unless you start talking, with what we have on you, we can put you away for a long, long time.”
But Drake was not about to plea bargain with the truth, though they wanted him to “plea bargain to something on the order to 15, 20, 25 years.”
“I knew exactly what I had done. I knew exactly what I had not done, but I knew the odds were long because they were going to pit FBI agents including FBI agents that came from their highly specialized mole hunter unit. The mole hunters are actually designated FBI agents that are designated to go after real spies. That’s how much of a threat I posed—apparently.”
Drake continues, “Did I have unauthorized contact with a reporter? Yes, but it’s not unlawful or illegal or a violation of the Espionage Act to have contact with a reporter. In fact, the NSA had an administrative policy.”
It certainly did not violate the Espionage Act to have unauthorized contact with a reporter. So they homed in on the information Drake had.
At the time, the national security agencies and the prosecutors who serve them were fretting about who the sources were for revelations in the New York Times about a warrantless wiretapping program. They believed Drake may be some “ringleader” behind the disclosures.
“I think the government thought I was playing games with them,” Drake suggests.
“There’s no defense,” Drake contends. “You would think you could face your accusers. You can, but you have no opportunity to mount a public interest defense under the Espionage Act because it’s a strict liability law. The fact that you were charged with it is your guilty. There is no presumed innocence.”
“The government retains control of the context and meaning for all of the allegations, whether they are simply asserted or they claim that they have proof in the form of documentation. They attempted to turn the documents upside down and inside out against me.”
According to Drake, the government even doctored a “couple documents to make them look like they were classified when they weren’t.” They attempted to play the federal judge for a fool and manipulate him.
Prosecutors accused Drake of having the “blood of American soldiers" on his hands.
“Here I am disclosing literally the U.S. government violating the Constitution at the highest levels,” Drake states. But they never produced any kind of a damage report.
Fortunately, the case collapsed. Drake pled guilty to a misdemeanor and served no time in prison, though he was sentenced to probation.