Secrecy News

Prosecution of Thomas Drake “Smacks of Overkill”

The prosecution of former National Security Agency official Thomas A. Drake under the Espionage Act “smacks of overkill,” said the Washington Post in an editorial today (“A case that could be overkill against a whistleblower,” June 6).

The Post editorial tends to ratify a growing consensus that the prosecution of Drake on charges of unauthorized retention of classified information is a mistake, and that the Obama Administration has mishandled the case.  That view was crystallized by a widely-read New Yorker article written by Jane Mayer (“The Secret Sharer,” May 23), and reinforced by a 60 Minutes profile (May 22), as well as a Ridenhour whistleblower award.

There is no evidence that Mr. Drake intended to cause harm to the United States or that he actually did so, even inadvertently.  The prosecutors themselves do not claim that any classified information that might have been in Mr. Drake’s possession appeared in the press as a result of his actions.  Yet he faces the possibility of multiple decades in prison.

“The question here is whether the indictment and proposed punishment are proportionate to the alleged infraction,” the Post editorial said.  Clearly, they are not.

When former National Security Adviser Sandy Berger was found to have unlawfully removed classified records (pdf) from the National Archives — in circumstances that were far more egregious and much less susceptible to an innocent interpretation than anything Mr. Drake did — Mr. Berger was not charged under the Espionage Act.  He pled guilty to a misdemeanor charge of “unauthorized removal and retention of classified documents or material” under 18 USC 1924, and was sentenced to two years of probation.  He also had to pay a fine, to perform 100 hours of community service, and to forego access to classified material for three years.

There is no possibility at this late date that the Obama Administration will acknowledge its error and change course before Mr. Drake’s trial begins on June 13.  But one may still hope that a sensible jury will discern the injustice in the Administration’s pursuit of Mr. Drake and draw the only appropriate conclusion.