http://NSA Whistleblower Indicted for Leaking Classified Information to Reporte

Thursday 15 April 2010

by: Jason Leopold, t r u t h o u t | Report

(Image: Lance Page / t r u t h o u t; Adapted: NSA, cleanzor)

A former senior National Security Agency (NSA) official was indicted Thursday on charges he leaked classified information to and served as a source for a reporter who wrote a series of critical articles about the agency's work.

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," the New York Times noted.

According to the federal indictment, Thomas A. Drake, 52, allegedly corresponded and met in person with an unnamed newspaper reporter between February 2006 and November 2007 and exchanged hundreds of emails with the journalist about the inner workings of the super-secret spy agency.

The allegations agaisnt Drake are unrelated to the charges leveled against Thomas Tamm, the NSA whistleblower who revealed the Bush administration's domestic surveillance program to the New York Times. No charges have been filed in the Tamm case. Tamm has publicly admitted he was a source for the Times story. 

The Washington Post identified the reporter Drake allegedly leaked classified information to as Siobhan Gorman, who worked for the Baltimore Sun and published a series of reports in that newspaper which focused on poor management at the NSA and the agency’s failure to set priorities.

"Gorman wrote a number of articles about the NSA during the time period cited in the indictment, including stories about problems with classified information collection and analysis programs known as ‘Turbulence’ and ‘Trailblazer,’” Agence France-Presse reported.

Gorman's reports also "disclosed a crisis in meeting NSA'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," according to the Times.

"The articles, though, did not focus on the most highly protected NSA secrets — whose communications it collects, exactly how it collects them and what countries’ codes it has broken," the Times report added. "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."

Ironically, Gorman, who now works for the Wall Street Journal, was covering the Senate confirmation hearing of NSA Director Lt. Gen. Keith B. Alexander when the Justice Department announced that a federal grand jury in the District of Maryland returned an indictment against Drake. Gorman, the Post reported, did not comment about the case as she left the hearing.

“Gorman's coverage of NSA often placed an unflattering focus on NSA administrators,” the Post reported. “An August 2006 story quoted intelligence officials as showing that the NSA eavesdropping facilities in Fort Meade were at risk of paralysis because of electrical overload and potential failure of the power supply.”

A call to the Baltimore Sun was not returned Thursday. The Justice Department would not confirm whether Gorman is the reporter identified in the indictment.

Drake was charged with 10 felonies, including obstruction of justice, making false statements to the FBI, and the willful retention of classified information related to four classified emails and one classified document. He is alleged to have obstructed justice by shredding classified and unclassified documents, including his handwritten notes that he had removed from the NSA and deleted classified and unclassified information on his home computer

The indictment further alleges that in November 2005, Drake, who was the head of an office within the NSA that dealt with signals intelligence (SIGNIT), was asked by a former congressional staffer to speak with a reporter. Between November 2005 and February 2006, Drake set up a free email account and then paid for a premium Hushmail account that allowed users to exchange secure emails without disclosing the sender or recipient’s identity.

The Justice Department claims Drake used an alias when he contacted the reporter, had her set up her own private, secure email account and then “volunteered” to disclose classified information about the NSA. The indictment alleges Drake had the reporter agree to a set of ground rules, such as never disclosing his identity, attributing information he provided to a "senior intelligence official,” never relying on Drake’s information alone to report a story, never telling Drake who the reporter’s other sources were; and not commenting on what people, to whom Drake recommended the reporter speak, said to the reporter.

"As alleged, this defendant used a secret, non-government e-mail account to transmit classified and unclassified information that he was not authorized to possess or disclose,” said Assistant Attorney General Lanny A. Breuer. “As if those allegations are not serious enough, he also allegedly later shredded documents and lied about his conduct to federal agents in order to obstruct their investigation. 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."

In addition to the email exchanges, the Justice Department claims Drake:

• Research[ed] stories for the reporter to write in the future by e-mailing unwitting NSA employees and accessing classified and unclassified documents on classified NSA networks.
• Cop[ied] and past[ed] classified and unclassified information from NSA documents into untitled word processing documents which, when printed, had the classification markings removed.
• Print[ed] both classified and unclassified documents, bringing them to his home, and retaining them there without authority.
• Scann[ed] and email[ed] electronic copies of classified and unclassified documents to the reporter from his home computer and reviewing, commenting on, and editing drafts of the reporter’s articles.

The Obama administration’s decision to prosecute Drake will have a chilling impact on whistleblowers, said Lucy Danglish, executive director of The Reporters Committee for Freedom of the Press.

"It's not a shock,” Danglish said. "They've always had the ability to charge people with violating national security laws when they leak to a reporter. They just don't typically do it very often."

Danglish said Gorman's reports exposed "a multibillion-dollar boondoggle that was of great interest to Congress."

Still, Danglish said the indictment is "unfortunate" and is "designed to have an impact on leakers."

"It's going to impact people sharing information with reporters," she said.

 
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Let The Sun Shine In......

Obama Using Bush's States Secrets B.S. (WTF?)

What was once depicted as a grave act of lawlessness -- Bush's NSA program -- is now deemed a vital state secret.

 

By Glenn Greenwald

The Obama administration has, yet again, asserted the broadest and most radical version of the "state 
secrets" privilege -- which previously caused so much controversy and turmoil among loyal Democrats (when used by Bush/Cheney) -- to attempt to block courts from ruling on the legality of the government's domestic surveillance activities.  Obama did so again this past Friday -- just six weeks after the DOJ announced voluntary new internal guidelines which, it insisted, would prevent abuses of the state secrets privilege.  Instead -- as predicted -- the DOJ continues to embrace the very same "state secrets" theories of the Bush administration -- which Democrats generally and Barack Obama specifically once vehemently condemned -- and is doing so in order literally to shield the President from judicial review or accountability when he is accused of breaking the law.

The case of Shubert v. Bush is one of several litigations challenging the legality of the NSA program, of which the Electronic Frontier Foundation is lead coordinating counsel. The Shubert plaintiffs are numerous American citizens suing individual Bush officials, alleging that the Bush administration instituted a massive "dragnet" surveillance program whereby "the NSA intercepted (and continues to intercept) millions of phone calls and emails of ordinary Americans, with no connection to Al Qaeda, terrorism, or any foreign government" and that "the program monitors millions of calls and emails . . . entirely in the United States . . . without a warrant" (page 4).  The lawsuit's central allegation is that the officials responsible for this program violated the Fourth Amendment and FISA and can be held accountable under the law for those illegal actions.

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Rather than respond to the substance of the allegations, the Obama DOJ is instead insisting that courts are barred from considering the claims at all.  Why?  Because -- it asserted in a Motion to Dismiss it filed on Friday -- to allow the lawsuit to proceed under any circumstances -- no matter the safeguards imposed or specific documents excluded -- "would require the disclosure of highly classified NSA sources and methods about the TSP [Terrorist Surveillance Program] and other NSA activities" (page 8).  According to the Obama administration, what were once leading examples of Bush's lawlessness and contempt for the Constitution -- namely, his illegal, warrantless domestic spying programs -- are now vital "state secrets" in America's War on Terror, such that courts are prohibited even from considering whether the Government was engaging in crimes when spying on Americans.
That was the principal authoritarian instrument used by Bush/Cheney to shield itself from judicial accountability, and it is now the instrument used by the Obama DOJ to do the same.  Initially, consider this:  if Obama's argument is true -- that national security would be severely damaged from any disclosures about the government's surveillance activities, even when criminal -- doesn't that mean that the Bush administration and its right-wing followers were correct all along when they insisted that The New York Times had damaged American national security by revealing the existence of the illegal NSA program?  Isn't that the logical conclusion from Obama's claim that no court can adjudicate the legality of the program without making us Unsafe?
Beyond that, just consider the broader implications of what is going on here.   Even after they announced their new internal guidelines with great fanfare, the Obama administration is explicitly arguing that the President can break the law with impunity -- can commit crimes -- when it comes to domestic surveillance because our surveillance programs are so secret that national security will be harmed if courts are permitted to adjudicate their legality.  As the plaintiffs' lawyers put it last July (emphasis in original), government officials:

seek to transform a limited, common law evidentiaryprivilege  into sweeping immunity for their own unlawful conduct. . . . [They] would sweep away these vital constitutional principles with the stroke of a declaration, arrogating to themselves the right to immunize any criminal or unconstitutional conduct in the name of national security. . . .

For that reason, as they pointedly noted the last time the Obama DOJ sought to compel dismissal based on this claim:  "defendants' motion is even more frightening than the conduct alleged in the Amended Complaint."  Think about that argument:  the Obama DOJ's secrecy and immunity theories are even more threatening than the illegal domestic spying programs they seek to protect.  Why?  As the plaintiffs explains (click image to enlarge)


Can anyone deny that's true?  If the President can simply use "secrecy" claims to block courts from ruling on whether he broke the law, then what checks or limits exist on the President's power to spy illegally on Americans or commit other crimes in a classified setting?  By definition, there are none.  That's what made this distortion of the "state secrets" privilege so dangerous when Bush used it, and it's what makes it so dangerous now.  Back in April, 2006 -- a mere four months after the illegal NSA program was first revealed, and right after Bush had asserted "state secrets" to block any judicial inquiry into the NSA program -- here is what I wrote about the Bush administration's use of the "state secrets" privilege as a means of blocking entire lawsuits rather than limiting the use of specific classified documents:

[Q]uite unsurprisingly, the Bush administration loves this doctrine, as it is so consistent with its monarchical view of presidential infallibility, and the administration has become the most aggressive and enthusiastic user of this doctrine . . . . As the Chicago Tribune detailed last year, the administration has also used this doctrine repeatedly to obstruct any judicial proceedings designed to investigate its torture and rendition policies, among others . . . . This administration endlessly searches out obscure legal doctrines or new legal theories which have one purpose -- to eradicate limits on presidential power and to increase the President's ability to prevent disclosure of all but the most innocuous and meaningless information.

That was the prevailing, consensus view at the time among Democrats, progressives and civil libertarians regarding Bush's use of the state secrets privilege:  that the privilege was being used to exclude the President from the rule of law by seeking to preclude judicial examination of his conduct.  Plainly, Obama is now doing the same exact thing -- not just to shield domestic surveillance programs from judicial review but also torture and renditions.  Is there any conceivable, rational reason to view this differently?  None that I can see.
Note, too, how this latest episode eviscerates many of the excuses made earlier this year by Obama supporters to justify this conduct.  It was frequently claimed that these arguments were likely asserted by holdover Bush DOJ lawyers without the involvement of Obama officials -- but under the new DOJ guidelines, the Attorney General must personally approve of any state secrets assertions, and Eric Holder himself confirmed in a Press Release on Friday that he did so here.  Alternatively, it was often claimed that Obama was only asserting these Bush-replicating theories because he secretly hoped to lose in court and thus magnanimously gift us with good precedent -- but the Obama administration has repeatedly lost in court on these theories and then engaged in extraordinary efforts to destroy those good precedents, including by inducing the full appellate court to vacate the decisions or even threatening to defy the court orders compelling disclosure.  In light of this behavior, no rational person can continue to maintain those excuses.
Is there any doubt at this point that, as TalkingPointsMemo put it in a headline:  "Obama Mimics Bush on State Secrets"?  Or can anyone dispute what EFF's Kevin Bankston told ABC News after the latest filing from the Obama DOJ:

The Obama administration has essentially adopted the position of the Bush administration in these cases, even though candidate Obama was incredibly critical of both the warrantless wiretapping program and the Bush administration's abuse of the state secrets privilege.

Extreme secrecy wasn't an ancillary aspect of the progressive critique of Bush/Cheney; it was central, as it was secrecy that enabled all the other abuses.  More to the point, the secrecy claims being asserted here are not merely about hiding illegal government conduct; worse, they are designed to shield executive officials from accountability for lawbreaking.  As the ACLU's Ben Wizner put it about the Obama DOJ's attempt to use the doctrine to bar torture victims from having a day in court:  "This case is not about secrecy. It's about immunity from accountability."  That's what Obama is supporting:  "immunity from accountability."

What makes this most recent episode particularly appalling is that the program which Obama is seeking to protect here -- the illegal Bush/Cheney NSA surveillance scheme -- was once depicted as a grave threat to the Constitution and the ultimate expression of lawlessness.  Yet now, Obama insists that the very same program is such an important "state secret" that no court can even adjudicate whether the law was broken.  When Democrats voted to immunize lawbreaking telecoms last year, they repeatedly justified that by stressing that Bush officials themselves were not immunized and would therefore remain accountable under the law.  Obama himself, when trying to placate angry supporters over his vote for telecom immunity, said this about the bill he supported:

I wouldn't have drafted the legislation like this, and it does not resolve all of the concerns that we have about President Bush's abuse of executive power. It grants retroactive immunity to telecommunications companies that may have violated the law by cooperating with the Bush administration's program of warrantless wiretapping. This potentially weakens the deterrent effect of the law and removes an important tool for the American people to demand accountability for past abuses.

Yet here is Obama doing exactly the opposite of those claims and assurances:  namely, he's now (a) seeking to immunize not only telecoms, but also Bush officials, from judicial review; (b) demanding that courts be barred from considering the legality of NSA surveillance programs under any circumstances; and (c) attempting to institutionalize the broadest claims of presidential immunity imaginable via radically broad secrecy claims.   To do so, he's violating virtually everything he ever said about such matters when he was Senator Obama and Candidate Obama.  And he's relying on the very same theories of executive immunity and secrecy that -- under a Republican President -- sparked so much purported outrage.  If nothing else, this latest episode underscores the ongoing need for Congressional Democrats to proceed with proposed legislation to impose meaningful limits and oversight on the President's ability to use this power, as this President, just like the last one, has left no doubt about his willingness to abuse it for ignoble ends.

 

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Let The Sun Shine In......