Former NSA Official Is Charged in Leaks Case

Published on
by
The New York Times

Former NSA Official Is Charged in Leaks Case

by
Scott Shane

WASHINGTON — In a rare legal action against a government employee
accused of leaking secrets, a grand jury has indicted a former senior National Security Agency
official on charges of providing classified information to a newspaper
reporter in hundreds of e-mail messages in 2006 and 2007.

The official, Thomas A. Drake, 52, was also accused of obstructing
justice by shredding documents, deleting computer records and lying to
investigators who were looking into the reporter’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,”
Lanny A. Breuer, the assistant attorney general in charge of the
Justice Department’s criminal division, said in a statement.

The indictment, approved Wednesday by a grand jury in Baltimore and
made public on Thursday, does not name either the reporter or the
newspaper that received the information.

But the description applies to articles written by Siobhan Gorman, then
a reporter for The Baltimore Sun, that examined in detail the failings
of several major N.S.A. programs, costing billions of dollars, using
computers to collect and sort electronic intelligence. The efforts were
plagued with technical flaws and cost overruns.

Only a small number of prosecutions have been brought against
government officials in recent decades for improperly disclosing
information. Such cases often provoke a public debate over the tradeoff
between protecting government secrets and covering up government
wrongdoing or incompetence.

The indictment suggests the Obama administration may be no less
aggressive than the Bush administration in pursuing whistleblowers and
reporters’ sources who disclose government secrets. In a little-noticed
case last December, a former contract linguist for the F.B.I., Shamai Kedem Leibowitz, pleaded guilty to leaking five classified documents to a blogger.

In the Bush administration, the Justice Department spent several years
investigating The New York Times’s sources for a 2005 article that
revealed the existence of the N.S.A. program of eavesdropping without
warrants. No one has been charged in that case.

Lucy Dalglish, executive director of the Reporters Committee for
Freedom of the Press, a press advocacy group, called the indictment of
Mr. Drake unfortunate. “The whole point of the prosecution is to have a
chilling effect on reporters and sources, and it will,” Ms. Dalglish
said.

Mr. Drake, who began working as an N.S.A. contractor in 1991 and was a
high-ranking agency employee from 2001 to 2008, is charged with 10
counts, including retention of classified information, obstruction of
justice and making false statements. The retention counts each carry a
maximum penalty of 10 years in prison and a $250,000 fine.

The indictment asserts that Mr. Drake, a computer software expert,
contacted the reporter at the urging of a friend and set up a secure
e-mail account, through a company called Hushmail, that allowed him to
send anonymous e-mail to the reporter. He later met the reporter and
turned over classified documents with the classification markings
removed, the court document said.

James Wyda, a federal public defender representing Mr. Drake, said his
client has been “extraordinarily cooperative” with investigators and
was “very disappointed that the process ended in criminal charges.”

“Mr. Drake loves his country,” Mr. Wyda said. “We look forward to addressing these matters in a public courtroom.”

Ms. Gorman, who now works for The Wall Street Journal, has not been
accused of wrongdoing. A spokeswoman for The Journal, Ashley S. Huston,
said Ms. Gorman had declined to comment. A spokeswoman for The
Baltimore Sun also declined to comment.

In addition to describing the technical programs, the Sun articles
disclosed a crisis in meeting N.S.A.’s demands for electrical power and
described how the agency had rejected a program that had the promise of
collecting communications while protecting Americans’ privacy.

The articles, though, did not focus on the most highly protected N.S.A.
secrets — whose communications it collects, exactly how it collects
them and what countries’ codes it has broken.

That may make a prosecution more feasible, from the point of view of
protecting secrets during a trial. But because the articles in question
documented government failures and weaknesses, the decision to
prosecute could raise questions about whether the government is merely
moving to protect itself from legitimate public scrutiny.

Ms. Dalglish, the press advocate, said Ms. Gorman’s N.S.A. articles
exposed “a multibillion-dollar boondoggle that was of great interest to
Congress.” She called the articles “important public-interest
reporting.”

News reports based on classified information are common, and they are
often followed by a referral to the Justice Department for
investigation. But prosecutions remain rare, in part because of the
difficulty of identifying sources and in part because spy agencies fear
a trial will do more damage to national security than the original
disclosure.

Among the most famous cases was the prosecution of Daniel Ellsberg,
then a military analyst for the Rand Corporation, for disclosing the
Pentagon Papers, a secret history of the Vietnam war, to The New York
Times in 1971. The charges were dismissed because of illegal
wiretapping and other government misconduct.

In 1985, Samuel Loring Morison, a naval intelligence analyst, was
convicted of espionage and other crimes after he provided classified
satellite photographs to Jane’s Defense Weekly. He was sentenced to two
years in prison.

In more recent years, two high-profile prosecutions involved leaks.
Lawrence Franklin, a Defense Department official, pleaded guilty in
2005 after being charged with sharing classified information with two
officials of a pro-Israel lobbying group. Those officials, accused of
passing some of the information on to reporters, were also indicted,
but the charges were later dropped.

Also, a top aide to Vice President Dick Cheney, I. Lewis Libby Jr., was charged with perjury and other crimes in an investigation of the disclosure to the news media that Valerie Wilson was an undercover officer of the Central Intelligence Agency. Mr. Libby was sentenced to 30 months in prison, but President George W. Bush commuted his sentence.

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