Friday, April 16, 2010

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.

7 comments:

Dianna said...

Please read Siobhan Gorman's articles. They dealt with issues NSA was having about updating their equipment and power supplies.

You know, incompetence and the waste of taxpayer money? Stuff we're upset about?

Robert said...

“…the pervasive "leak" culture of official Washington has jeopardized our national security.”

The ubiquity of classified data leaks in DC is a national disgrace. In DC it seems to be a status symbol to brag about your/or your spouse’s clearance & reveal a bit of classified info to make others know how just how important you really are.

Take for example, a blogger of nuclear weapons issues bragging in an internet post of the DOE/NNSA Q/SCI clearance the spouse has just obtained and the really juicy classified info the spouse has access to. The blogger routinely blogs about why there should be more “transparency” of nuclear weapon data so the public can better understand the related issues. The “Need to Know” policy in DC seems to mean tell whomever you think needs to know. And, of course, it’s of no importance to foreign agents in America as to the fact the spouse possesses such a clearance.

It stuns me to see how many DC Feds have access to SIGMA/CNWDI/SCI categories whose work functions have little or no need for this level of access. But in DC access to classified data is not so much a serious responsibility as it is a status symbol.

Spook86 said...

Dianna:

I ready many of Ms. Gorman's articles when they were first published. While they dealt with potential problems at NSA, they also revealed vulnerabilities that could be exploited by adversaries. And it's not the job of senior agency managers to "go public" with complaints, problems, and other issues. That's what the IG is for and if that won't work, he should have gone to the House or Senate Intelligence Committee.

I also recall a couple of articles that were critical of administration policies. That suggests that Mr. Drake had a political axe to grind as well. Nothing wrong with that, but an intelligence officer doesn't settle that score by leaking classified information.

Robert--Can't disagree with anything you say. The working definition of "need to know" is 180out of what it supposed to mean.

tfhr said...

I don't know how we can prosecute anyone after the slap on the wrist given to Sandy Berger and the Clinton pardon of John Deutch.

Ray said...

This one bothers me - not so much for the guy, who violated his oath and broke our laws, and could do with a bit of jailtime.

The waste and mismanagement he exposed was very real, and the potential harm to national security from his disclosures was essentially minimal (if we were in a shooting war with the Nazis, sure, they could've used the leaks to direct their sabotage efforts more effectively - do I see Al Qaeda in a position to launch attacks with that level of precision against NSA's US-based infrastructure? Not really).

So what does it really say that, out of all those leak investigations, where people blew things like the Terrorist Surveillance Program and others, and really screwed up national security, and did it for political brownie points, that we indict the guy who was actually a classical whistleblower?

The First Mrs. Grimaud said...

So what about prosecuting the NSA deadbeat? Steve Grimaud, Senior Executive Officer, and Bush appointee. Grimaud dumped his ex-wife and 7 year old on welfare, took a job at the NSA, never told the welfare department, threw 100 bucks a month at the welfare dpt, and told he ex wife he was paying child support, ha ha ha - jokes on her -- DA catches up with this clown 10 years later, he runs to the NSA screaming help, the NSA runs to the Anne Arundel Court, same county where they're prosecuting Drake, the NSA shuts down the child support case and destroys all the files, then Bush appoints this deadbeat to another post.

No wait, there's more! The deadbeat says to the DA, I'll give you $240 a month and you shut your mouth and go away, as long as you never tell my ex wife where I work! Cool deal.

So deadbeat walks away with $240 a month for 2 years, daughter turns 18, he's off the hook.

Until the ex-wife shows up 30 years later and finds out - and boy is he in hot water then - she hired a private detective and found he and the NSA destroyed all the child support records!

Pres. Clinton ordered all the Federal employees to participate in a cross-matching program with child support records, so they could count the number of deadbeats holding Federal jobs

Director of the FBI and NSA tell Clinton, their employees won't participate. Why? Because the NSA erases all the criminal records for their employees, that's why.

So I guess, the best way to beat child support is have the NSA erase your files. EX wife spoke to the Baltimore Sun, and they said they won't run the story. Wonder why.

lgude said...

The lack of consequences for leakers is amazing regardless of the merits or otherwise of the two cases - this one and the Scooter Libby case. As far as I can tell Libby had noting to do with the leak, which was from Richard Armatage, but had gotten his testimony wrong (knowingly or not - I have no idea) and made himself vulnerable to prosecution. The whole thing sounds like a Gilbert and Sullivan Operetta. In all the verbiage I've wasted my time wading through over the Palme case I have never seen anyone ask why Joe Wilson never signed an NDA and could freely publish his findings - or a version of them - in the NY Times. So yes 'need to know' is 180 degrees out of whack and the question arises - why this case now? Is this just more political theater or perhaps something of a start at plugging the leaks?