Indictment Continues Obama Administration’s War on Leaks

New information in the Justice Department’s prosecution of a former intelligence-agency official has raised questions about the government’s case against him. And these developments shed light on how the Obama administration is prosecuting government employees accused of giving classified information to journalists.

According to a draft federal indictment against Thomas Drake, a former senior official at the National Security Agency, the government contemplated prosecuting him for disclosing classified information to a newspaper reporter and for conspiracy. The indictment, which was never filed, was apparently prepared by a senior Justice Department attorney sometime in 2009. When it was picked up by a new attorney last year, many of the most serious charges were dropped.

Washingtonian obtained a copy of the draft indictment, which also lists three former NSA officials and an ex-congressional committee staffer as unindicted co-conspirators. All of them, along with Drake, had raised concerns about waste and fraud by senior NSA leaders with a Pentagon watchdog in 2002. The draft indictment, which isn’t dated, alleges that they coordinated with each other and Drake to reveal secrets to Baltimore Sun reporter Siobahn Gorman. She wrote an award-winning series of articles that exposed allegations of waste and mismanagement on some of the NSA’s most important terrorism-related programs.

In April 2010, the Justice Department formally filed charges against Drake, but of the four crimes in the draft indictment, the only one that remains is “willful retention of national defense information.” Compared to conspiracy and disclosing official secrets, the retention case is easier to prove in court, legal experts said.

The government accuses Drake of storing classified information about NSA intelligence programs on his home computer. And while the indictment spells out in detail how Drake allegedly gave that information to the reporter, he’s not charged with doing so.

The previously undisclosed indictment offers a glimpse into the Justice Department’s evolving legal strategy for combatting press leaks. The Obama administration has stirred controversy and set records by prosecuting five current and former government employees for mishandling official secrets and giving classified information to journalists or outside groups such as Wikileaks. The news about Drake’s case comes on the heels of another indictment of a former intelligence official, Jeffrey Sterling, an ex-CIA officer whom the government accuses of leaking secrets about covert operations against Iran to a book author.

Whistleblower groups and journalists have been increasingly concerned about how aggressively the Obama administration is pursuing leakers and the reporters they contact, but they’ve had little insight into how prosecutors are pursuing their targets because the government hasn’t commented on pending cases. Now, the new information in Drake’s case opens a window on the government’s strategy. It shows that prosecutors are willing to pursue significant but arguably less sexy charges in order to secure legal victories. Proving that someone disclosed classified information and engaged in a conspiracy puts a greater burden of proof on federal prosecutors, who’d have to show that the accused knew the material he allegedly leaked was classified.

“Retention cases are much easier to prove,” said Baruch Weiss, who was a federal prosecutor in New York for 18 years. Prosecuting someone for disclosure could also open a kind of Pandora’s Box, forcing the government to reveal even more classified information at trial. Dropping the disclosure and conspiracy charges against Drake “could have been an effort to simplify the case, which in any criminal case is a priority, but especially in cases involving classified information,” Weiss said.

The draft indictment against Drake was prepared by Steven Tyrrell, who led the Fraud Section of the Justice Department and left the government in early 2010. William Welch, a career prosecutor and the former head of the Public Integrity Section, which handles public corruption cases, inherited the case. Welch ultimately filed the charges against Drake.

Since the case was being handled by Justice Department headquarters, supervising attorneys and senior officials would have weighed in on the decision of how to charge Drake, said David Debold, who was an assistant U.S. attorney in Detroit for 17 years and is now with Gibson Dunn's DC office. “There tends to be greater oversight and supervision that the cases [from headquarters] have to go though before the line attorneys can take them to the grand jury,” he said.

Tyrell declined to comment about the Drake case, as did a Justice Department spokesperson, because it’s currently before a federal judge. Welch is now the department’s point man on several leak investigations, at least two of which, in addition to the Drake case, have produced indictments.

The official indictment is also notable because it omits any mention of thee former NSA officials, who were described in the draft as unindicted co-conspirators. The government now paints Drake as having acted largely on his own initiative when he allegedly contacted Gorman in 2005 and became her source. The government believes that the former congressional staffer, who oversaw NSA’s classified programs for the House Intelligence Committee, introduced Drake to Gorman. She is still described in a background section of the official indictment.

The three former NSA officials and the congressional staffer were known to government investigators as early as September 2002, when they wrote to the Defense Department’s inspector general that senior NSA leaders had “defrauded the American taxpayer of hundreds and hundreds of millions” by investing in a computer system known as Trailblazer, which was designed to help the NSA pluck valuable clues on terrorist plots from the billions of phone calls, e-mails, and other electronic signals it intercepts on a regular basis.

The former officials and the ex-staffer believed that a rival program, called Thin Thread, could do a better job and would cost “one-tenth or less than the projected several billions of dollars cost of Trailblazer.” They also claimed Thin Thread, which was never fully deployed, was “NSA’s only real chance to have averted the 9/11 intelligence failure” by detecting the communications of the September 11 attackers before they struck.

Gorman explored all those themes in her articles, citing anonymous current and former officials. The inspector general completed a report on the allegations in December 2004, but it was never released publicly.

The three former officials who wrote to the inspector general and are described but not named in the draft indictment are William Binney, Kirk Wiebe, and Ed Loomis, all of whom retired from the agency in October 2001. The former committee staffer is Diane Roark. Drake didn’t formally sign on to the letter, but he provided information to the investigation while he was still an NSA employee. According to sources familiar with the matter, it was clear to all parties that after the inspector general’s report wasn’t released, their concerns weren’t going to get the attention they’d hoped for through official channels.

Whatever contacts the group may or may not have had with the press, federal investigators apparently suspected some of them of having discussed classified matters with reporters. In July 2007, almost five years after the three former officials and Roark filed their complaint with the inspector general, FBI agents raided their homes, removing documents and in some cases computers. Then, in November, they raided Drake’s home in M
aryland. According to sources familiar with the case, the FBI thought Drake might be a source for a December 2005 article in the New York Times that revealed a possibly illegal program of electronic surveillance in the United States—an investigation Tyrell also led. But instead of finding evidence that Drake was a source for that story, agents found evidence of his connection to Gorman.

Drake has never been accused of being a source for the Times article. At least one former government official, Thomas Tamm, has said publicly that he talked about the secret NSA program with two Times reporters. Tamm hasn’t been indicted.

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