In a major blow to the Justice Department, one of its biggest leak prosecutions in years all but collapsed late Thursday when federal prosecutors withdrew all their felony charges against a former National Security Agency official accused of providing classified information to a journalist.
Instead, under a plea deal reached with prosecutors, former NSA official Thomas Drake has agreed to plead guilty in federal court on Friday to a single misdemeanor count of "exceeding authorized use of a computer" -- a minor charge for which he will receive no jail time, a senior administration official told NBC.
“This is close to being a total fiasco,” said Steve Aftergood, a national security specialist with the Federation of American Scientists who writes the widely read Secrecy News blog and has closely followed the case. “It’s a massive face-saving retreat by the government.”
Only last year, top Justice Department officials portrayed Drake’s actions as a serious threat to national security after accusing him of leaking information about a highly classified government surveillance program. The virtual disintegration of their case against him could raise new questions about a series of other Obama administration prosecutions and investigations aimed at cracking down on leaks, including the ongoing probe into WikiLeaks chief Julian Assange.
“These are tough cases to bring,” said a senior department official about the Justice Department’s withdrawal of felony charges against Drake. The official said Justice will decline all comment until the agreement is presented to a federal judge in Maryland on Friday.
But two sources familiar with the matter said that prosecutors felt hamstrung by a number of judicial rulings in the case, including one that would have required them to declassify — and make public — some of the secret information about NSA computer programs that Drake was accused of leaking. The NSA refused to permit that, forcing Justice officials to seek a negotiated plea deal with Drake and his lawyers, one source who has been briefed on the case told NBC.
The retreat over Drake is especially notable because of the widespread national attention his case has received. Indicted on ten courts by a federal grand jury in April, 2010, federal prosecutors accused him of exchanging hundreds of emails about NSA programs with a journalist, who has since been identified as Siobhan Gorman, then with the Baltimore Sun, now with the Wall Street Journal. Gorman is believed to have used the information she received from Drake to write prize winning stories about the failings of NSA computer programs that cost billions of dollars and were plagued with technical problems.
Drake, who served as a high ranking NSA computer software expert between 2001 and 2008, was charged with violating some provisions of the Espionage Act, a controversial World War One era law that has been the government’s main weapon in trying to stop leaks. Justice officials said he set up a special Hushmail account to communicate with Gorman; they also charged him with obstructing justice for allegedly shredding documents, deleting computer records and lying to government investigators who were looking into Gorman’s sources.
“Our national security demands that the sort of conduct alleged here — violating the government’s trust by illegally retaining and disclosing classified information — be prosecuted and prosecuted vigorously,” said Lanny Breuer, the assistant chief of the Justice Department’s criminal division when the Drake indictment was announced.
But the Drake prosecution was plagued with problems from the start. Some media and whistleblower groups rushed into his defense, portraying him as a conscientious government servant who was trying to expose costly government mismanagement rather than harm national security. He was even honored last April at the National Press Club when he was awarded the “Ridenhour Prize for Truth Telling,” an annual prize government to whistleblowers.
A group that represents government whistleblowers—and which had helped to represent Drake — hailed the plea agreement Thursday. "This is a victory for national security whistleblowers and against corruption inside our intelligence agencies. The prosecution's case was built on sand and crumbled under the weight of the truth,” said Jesselyn Radack, the group’s Homeland Security and Human Rights Director for the Government Accountability Project.
Aftergood said the withdrawal of the felony charges against Drake should spur Justice officials to “rethink” their anti-leak prosecutions. Already, officials are facing another potentially embarrassing court confrontation over their subpoena of New York Times journalist Jim Risen as part of their efforts to convict a former CIA officer accused of being one of his sources. Risen, a prize winning reporter who specializes in national security issues, has vowed to resist the subpoena, thereby forcing officials in Attorney General Eric Holder’s Justice Department to decide whether they want to seek to throw him in jail in order to compel his testimony.