For acting out of conscience and refusing to stand by as the NSA disregarded Americans' safety and privacy, the reprisal against Drake culminated in one of the most severe forms of whistleblower retaliation: criminal prosecution. The government conduced an armed raid of Drake's home, interrogated him repeatedly, and threatened him with spending "the rest of his natural life behind bars." The Department of Justice (DOJ) indicted Drake under the Espionage Act with improper "retention" – not disclosure – of allegedly classified information, and Drake faced decades in prison.
Drake came to GAP for help. GAP provided Drake with legal advice on whistleblower issues and launched an aggressive media and public advocacy campaign. GAP's help was, in Drake's own words, "crucial."
While working with NSA, Drake became familiar with ThinThread – a data collection program that could efficiently and cost-effectively analyze massive amounts of data. ThinThread could provide pivotal intelligence for government agencies charged with identifying terrorism threats and networks. Even better, the program had privacy protections for Americans built into the system. ThinThread was ready to deploy prior to 9/11.
NSA management rejected ThinThread in favor of a different project – Trailblazer. This program was vastly more expensive than ThinThread, completely undeveloped, and lacked critical protections needed to safeguard Americans' privacy. Drake was concerned that the decision to implement Trailblazer amounted to gross fraud that cost taxpayers billions, and that NSA was conducting illegal and unconstitutional domestic surveillance in the aftermath of 9/11. Drake and several colleagues were devastated by 9/11, believing that if management had deployed ThinThread when it was ready, NSA likely would have gained actionable intelligence prior to the attacks.
Drake took his concerns through official channels – including senior NSA management and two 9/11 congressional investigations. His concerns were ignored.
In September 2002, three retired NSA employees (two of whom are GAP clients – J. Kirk Wiebe and William Binney) and a retired congressional staffer filed a complaint with DoDIG accusing the NSA of massive fraud, waste and mismanagement in connection with NSA's rejection of ThinThread and endorsement of the failing Trailblazer. Drake did not sign the complaint because, still working at NSA, he feared retaliation. However, Drake became a critical material witness for the DoDIG, fully cooperating with the investigation and using proper channels to provide the office with thousands of documents – classified and unclassified. In late 2004/early 2005, after years of investigation and thousands of pages of documents from Mr. Drake, the DoDIG released a report substantiating Drake and the complainants. Using the Freedom of Information Act, GAP later obtained a redacted copy of the classified report.
Drake should have been praised for his efforts. Instead, NSA management retaliated against him by cutting funding to programs under his responsibility and transferring him away from key projects. For the rest of his NSA career,
Drake was increasingly singled out, marginalized, and isolated.
Meanwhile, NSA management persisted in rejecting the successful and cost-effective ThinThread while promoting Trailblazer, which was already failing despite never having been fully developed.
Left with no other options, Drake began legally communicating with a Baltimore Sun reporter about Trailblazer – never sharing any classified information. In fact, one of the ground rules Drake insisted upon for their communications was that he would never provide classified information.
The Sun published a series of articles exposing the $1.2 billion debacle.
Meanwhile, when the New York Times published a story exposing the NSA's unconstitutional warrantless wiretapping program, the FBI launched an expansive – and fruitless – investigation into the sources for the article. Although Drake was not a source for it, the federal government used the "leak" investigation as a pretext to persecute him. In November 2007, a few months after the FBI subjected three of the original DoD IG complainants to simultaneous armed raids, approximately a dozen armed federal agents raided Drake's house. Drake, his wife, and their young son watched as the raid was broadcast on the news that evening and the next morning. Forced out of NSA (he resigned voluntarily, significantly with no adverse action on his personnel record), Drake found work at the local Apple store.
Justice Department officials interrogated Drake for hours on several occasions. Knowing he had done nothing wrong, Drake cooperated with the pre-textual "leak" investigation until he realized that the purpose was to retaliate against him. The officials pressured Drake multiple times to take a plea deal, threatening him with spending the "rest of his natural life behind bars" if he didn't – but Drake "refused to plea bargain with the truth."
Drake hoped that the new Obama administration – one that had touted the importance of federal whistleblowers during the 2008 campaign – would reverse direction and cease the use of the criminal justice system to go after whistleblowers. However, after Drake lived under the cloud of possible prosecution for two and a half years after the FBI raided his home, the DOJ finally indicted him in April 2010.
Drake was charged under 10 separate counts, 5 of which were charges brought under the Espionage Act – a 1917 piece of legislation intended to be used against spies. Drake was only the fourth case in U.S. history where the government used the Act to go after someone for allegedly mishandling classified materials – tellingly, Pentagon Papers whistleblower Daniel Ellsberg was the first.
Despite press statements to the contrary, Drake was not charged with disclosing classified information to a reporter, but rather accused of the alleged improper retention of allegedly classified information. After spending years investigating Drake, it is clear that if DOJ had evidence of Drake disclosing classified material, it would have charged him with disclosure under the relevant law for such a crime.
Drake faced decades in prison for doing the right thing.
Drake Turns To GAP, Builds Public Support
Drake's criminal defense team was headed by the federal public defender's office in Maryland, and his case drew the attention of dozens of legal experts and advocates.
GAP's National Security & Human Rights team (Jesselyn Radack & Kathleen McClellan) took notice of Drake's case and criticized the government's treatment of him in a Los Angeles Times op-ed, which prompted Drake to contact GAP and become a client. In addition to providing extensive legal advice on whistleblower issues and filing an amicus curie brief in his criminal case, GAP introduced him to other advocates and attorneys(some of whom helped on his defense team) and started a massive media advocacy campaign to put public pressure on the DOJ.
The mainstream media began taking notice of Drake's case and GAP's advocacy. A few stories began trickling out over the course of several months. In March 2011, just three months before his trial was slated to begin, Drake received the Ridenhour Prize for Truth-Telling – widely regarded as the highest honor for an American whistleblower.
GAP helped coordinate two high-profile back-to-back media pieces. In mid-May, award-winning investigative journalist Jane Mayer detailed the Drake case in an extensive New Yorker cover story. Less than one week later, 60 Minutes ran a segment focusing on Drake.
After these two blockbusters, Drake's case became national news. Media coverage was consistently critical of the DOJ's prosecution of Drake, and the upcoming trial became a referendum on the Obama administration's policy of using the Espionage Act to prosecute so-called "leakers" – who are more often than not whistleblowers.
GAP harnessed this coverage and started an online petition in support of Drake. GAP's petition targeted the Attorney General and heads of the Congressional Judiciary Committees, demanding to know why the Justice Department was prosecuting Drake for protecting Americans and exposing gross waste. In just a few weeks, nearly 5,000 people signed the online petition, which GAP delivered to Congress and the Justice Department.
The Criminal Case Against Drake Collapses
In the face of mounting public support for Drake, the overwhelming media coverage, and several rulings against the DOJ in court, the case against Drake imploded just four days before the trial was set to begin. The DOJ agreed to drop the ten-count felony indictment, including all of the Espionage Act charges. Drake pled guilty to a mere misdemeanor: "exceeding authorized use of a computer." One month later, Drake was sentenced to one year of probation and community service, a far cry from the government's goal of putting Drake in jail for "the rest of his natural life." At sentencing, the judge sharply criticized the DOJ's handling of the case, calling it "unconscionable." Radack, who managed GAP's handling of the Drake case, stated that the resolution was "a victory for national security whistleblowers and against corruption inside our intelligence agencies."
A few weeks after the sentencing, in a remarkably rare move, former George W. Bush classification czar J. William Leonard filed a complaint against NSA and DOJ, seeking punishment for the officials who wrongfully classified the documents that Drake allegedly retained. Leonard, who was slated to serve as an expert on Drake's criminal defense team, stated that the documents contained no secrets, and "should never have been classified in the first place."
Drake himself has spoken out since the sentencing. He and Radack penned a Philadelphia Inquirer op-ed shortly after his sentencing, explaining how the Obama administration criminalized whistleblowing about national security matters. About a month later, the Washington Post published an op-ed by Drake explaining how his actions were driven by his oath to the Constitution.
Immediately after his sentencing, speaking with reporters alongside Radack, Drake praised GAP's help: "I am grateful to the Government Accountability Project which provided crucial whistleblower advocacy and media outreach support ... while also serving as my voice when I did not have one. I am worried that the next target of such a witch-hunt will not be as fortunate."
The GAP-led media campaign in support of Drake has been lauded in news reports as having contributed to ensuring Drake's freedom. GAP is honored to have assisted this patriot, and made a difference for future federal whistleblowers.
While Drake won the battle for his freedom, the war against whistleblowers is ongoing. Without adequate internal disclosure channels, intelligence community whistleblowers are faced with an impossible choice. They can either risk their careers (and possibly their freedom) by making unprotected internal disclosures, or remain silent about horrible problems, such as gross waste, fraud, abuse of power, illegality, privacy and civil liberties violations, or even lapses in national security.
GAP's National Security & Human Rights team continues to fight for these truth-tellers that expose government wrongdoing.