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Federal Case Against Spy Agency Whistleblower May Be Weakening 

Published June 9, 2011 at 11:27 a.m.

* Update below: Plea deal has been struck *

A former Vermonter charged under the Espionage Act for mishandling classified information may have just caught a huge break, days before he's scheduled to go on trial in federal court in Washington, D.C.

The Washington Post is reporting this morning that the feds are tossing aside several key documents in a long-awaited trial of Thomas Drake, a former senior official within the National Security Agency.

In 2001 Drake was assigned to a secret surveillance detail that collected and reviewed millions of pieces of data — some of them personal — in search of suspected domestic terrorist activity.

Over time, Drake came to believe the program was a “budget sponge” used to pad the agency’s expenditures. He also believed some of the personal data collected likely violated protections against illegal search and seizure, court records indicate.

He and others in the NSA complained to the internal inspector general, and also began talking to a reporter at the Baltimore Sun.

Determined to find the source, or sources, of the Sun’s stories, Federal Bureau of Investigation agents raided Drake’s home in late 2007. He cooperated with federal investigators until April 2008, when Drake realized that he was a target of the probe and not just a witness. He then resigned from the NSA.

Drake is only the fourth person in U.S. history to be charged under the Espionage Act of 1917 for mishandling classified information. The first was Daniel Ellsberg, who leaked the “Pentagon Papers” to the New York Times.

Some observers believe the feds' case will be weakened as a result, meaning it is less likely Drake will be prosecuted. In fact, some court observers now believe that some or all of the charges against him may be  dropped.

Drake's case has drawn national attention by whistleblower groups and open-government advocates. In April, Drake received the prestigious Ridenhour Prize for Truth-Telling — an annual honor given to whistleblowers, investigative journalists and other private citizens for “bringing an issue of social importance to the public’s attention.”

Drake grew up in southern Vermont, attended a one-room schoolhouse and later went to Burr and Burton Academy, where his father taught, in the early 1970s. His mother was the personal secretary for writer Pearl S. Buck when the author lived in Danby.

According to the Post report, "The government’s decision to withhold certain documents may complicate prosecutors’ efforts to prove a violation of the act, suggesting that the government may have overreached in using an espionage law to target a suspected leaker."

One expert quoted in the Post believes the feds' case may be weakened if they can't point to specific information that Drake obtained or put the charges in context.

“By withdrawing several of the exhibits, at least a couple of the counts against Drake will almost certainly need to be dismissed,” Steven Aftergood, a national security expert with the Federation of American Scientists told the Post. “It changes the whole dynamic of the prosecution and may even set the stage for settlement or dismissal.”

I first profiled Drake in a "Fair Game" column back in December. As his case has gained national attention, he's also been the subject of a "60 Minutes" report and a New Yorker profile by Jane Mayer.

Drake, who now works at an Apple store in northern Virginia, had “top-secret” clearance when he worked at the NSA, according to court records. He began work there as a contractor in 1989, after 10 years in the U.S. Air Force. Drake became a full-time NSA employee in August 2001. His first day on the job was September 11, 2001.

At the Ridenhour award ceremony, Drake told the crowd his case has exposed “a truly Orwellian world, where whistle-blowing has become espionage. Espionage includes whistle-blowing, and whistle-blowing is now equated with spying. Dissent has become the mark of a traitor. Truth is equivalent to treason, and speaking truth to power makes one an enemy of the state, and yet who is really the enemy here?”

* Update *

According to a report in The New York Times Drake has agreed to a plea deal with federal prosecutors. A plea hearing on the deal is scheduled for Friday morning in federal court in Baltimore, MD. Under the terms of the plea deal, Drake would agree to plead guilty to a "misdemeanor of misusing the agency’s computer system by providing “official N.S.A. information” to an unauthorized person, a reporter for The Baltimore Sun," according to the article.

According to the Times, prosecutors said they would approve of a sentence that included no jail time. If convicted on the earlier charges, Drake faced 35 years in prison. The judge in the case could still place Drake in jail for up to one year.

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About The Author

Shay Totten

Shay Totten

Shay Totten wrote "Fair Game," a weekly political column, from April 2008-December 2011.


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