One in Five Hundred
It's a little-known, but disturbing fact: from the mid-1990s until the middle of this decade, the Justice Department conducted more than 600 investigations into the unauthorized disclosure of classified information. All of those inquiries had something else in common, too. Not a single one resulted in the prosecution or conviction of individuals suspected of leaking classified data.
That's why this week's indictment of former National Security Agency official Thomas Andrews Drake is remarkable, even astounding. Mr. Drake, who once served as a senior signals intelligence official, was formally charged with 10 felony counts of "willfully retaining national security documents," and making false statements to investigators. Federal prosecutors allege that Drake provided classified information to a reporter who wrote a series of articles on the NSA.
While the journalist wasn't named in the indictment, sources familiar with the investigation identified her as Siobhan Gorman, a former Baltimore Sun reporter who now works for The Wall Street Journal. According to federal prosecutors, Drake used Hushmail, a Canadian-based, encrypted e-mail system, to provide classified information to the journalist, beginning in February 2006.
The indictment says that Drake served as a source for a series of articles that appeared in the Sun from early 2006 until November 2007, a period when Ms. Gorman covered NSA for the paper. To assist the reporter, Drake took home classified documents from work and e-mailing other agency employees to gather data. Information provided by Mr. Drake became the basis for articles that were largely critical of the Bush Administration and its controversial surveillance programs.
Ms. Gorman has (so far) declined comment on the matter. Ditto for the Baltimore Sun and her current employer, NewsCorp, which publishes the WSJ. Mr. Drake's attorney, Jim Wyda, said he is reviewing the indictment along with his client. Wyda expressed "disappointment" that the matter couldn't be resolved without Drake's indictment.
Predictably, some members of the journalistic establishment have tried to cast the indictment as a classic, freedom-of-the-press issue. Here's an example from ABC News:
The case raises a number of important First Amendment questions. Should a former government official provide such highly classified top secret information to a reporter? Is the reporter witnessing and participating in a crime by receiving such information? In an age of terrorism, when resources may be needed elsewhere, should the government be using its investigative powers to go after leaks? And how can the government be held accountable for sometimes wasteful or ineffective classified programs if the public never hears about them?
Yet from a legal standpoint, the case may be less of a constitutional matter and more of a slam dunk. Mr. Drake apparently disagreed with Bush Administration policies. He had the option of resigning from NSA and taking a stand as a private citizen, within the restrictions of the non-disclosure agreements he signed as an intelligence officer.
But Drake elected to violate those accords, allegedly providing information to Ms. Gorman while retaining his comfortable position at NSA. It shouldn't be difficult for prosecutors to prove that Drake willfully violated non-disclosure rules, for the apparent purpose of leaking classified information. Interestingly, the indictment describes instances when Drake provided information to the reporter, but doesn't accuse him of leaking classified material.
The investigation into Mr. Drake's purported activities began during the Bush Administration, but the Obama Justice Department deserves credit for continuing the probe, and filing the indictment. As we've written before, the pervasive "leak" culture of official Washington has jeopardized our national security. The hundreds of unauthorized disclosures between 1995 and 2005 resulted in lost sources and compromised collection capabilities, impairing our ability to gather intelligence.
Prosecuting alleged leakers is one way to stop the bleeding. But it will probably take more indictments to actually deter the public disclosure of classified information. By our decidedly rough calculations, there have been at least 1,000 classified "leaks" over the last 15 years, resulting in two prosecutions (if you include the Scooter Libby/Valerie Plame case).
That means the odds of any official being tried for divulging classified information are at least 500:1. That's significantly lower than the odds of the same person writing a New York Times bestseller (220:1), discovering their child is a genius (250:1), or being audited by the IRS (175:1).
Obviously, the indictment of Thomas Andrews Drake won't plug the leak culture, but it's a start.
One more thing: does anyone think Ms. Gorman will "own up" to her role in the case, and beyond that, will she testify in his behalf, or make any contributions to Drake's legal defense fund? Don't hold your breath.