Thomas Drake Signs Plea Agreement; Government Attempt to Expand Espionage Act Fails

Thomas Drake just signed a plea agreement, admitting to Exceeding Authorized Use of a Computer. (h/t Steven Aftergood) The plea says:

The defendant intentionally accessed a computer and exceeded his authorized access; by doing so, the defendant obtained information from any department of agency of the United States.


From in or about February 2006 through approximately March 2007, the defendant intentionally accessed NSANet, obtained official NSA information, and provided said information orally and in writing to another person not permitted or authorized to receive the same. In doing so, the defendant knew that he exceeded his authorized use of NSANet each time he accessed NSANet and obtained said information for that purpose because such access was not for the official use or business of NSA.

Now the plea doesn’t say anything about what sentence they’ve agreed to. The base level is 6, and the calculation works out to 6, which means he’s eligible for no jail time (the maximum punishment is a year). The plea indicates “the Criminal Division will not oppose a non-custodial sentence.” So hopefully the judge will just be done with this and Thomas Drake can get on with his life.

Meanwhile, the people who illegally wiretapped us (according to Drake, in highly inefficient fashion)? They remain free.

While I hope Drake avoids any jail time here, equally important is that the government has once again failed to broaden the Espionage Act to cover garden variety leaks.

  1. bmaz says:

    There is an avowal that the government does not oppose a non-custodial sentence. In lay terms they don’t object to no jail and no house arrest. Hard to believe the court would impose the same under the circumstances.

  2. lysias says:

    Is the law allegedly violated 18 U.S.C. 1030(a)(2)? Does the violation only count as a misdemeanor?

    • bmaz says:

      Generally, if the maximum sentence on a federal charge is one year or less of incarceration, it is considered a misdemeanor. And that is indeed the case here.

      • earlofhuntingdon says:

        That’s also generally true at the state level.

        I’m happy for Drake if he and his lawyers considered this the surest, best possible way out of the morass the government seems to have dumped him into. It’s still a blot on his copybook, but a survivable one if he gets no jail time.

        The government should be thankful. This agreement opens a surprise window in the corner they painted themselves into in their rabid unthinking war against whistleblowers, managed by DoJ staff that make Monica Goodling look competent and even handed.

  3. earlofhuntingdon says:

    As an aside, the right still seems bent out of shape that Margaret Thatcher’s staff is competently protecting her legacy by denying Palin the chance to pray at her feet for the purpose of absconding with a bit of her iconic stature.

    The linked Guardian article quotes this unusual lucid comment from Andrew Sullivan:

    “What he [Rush Limbaugh, berating Thatcher’s staff’s decision] doesn’t understand is that Palin’s nutsiness is not a partisan matter in Britain, or anywhere else in the world. It is an obvious truth marveled at by all. Palin’s emergence as a serious figure in American politics has made the country a laughing stock across the world. The idea that a stateswoman like Thatcher, in advanced dementia, would be used by such a crackpot is simply unseemly.”

    • bmaz says:

      Seriously, come on. Why the fuck would the Iron Lady want to meet with freaking Sarah Palin?? What could Thatcher possibly gain from that idiocy? It was fucking insane, and punk, of Palin and her belligerent naive crew to even ask privately for such a summit, much less make a public spectacle out of doing so. Say what you will about Thatcher, and there are many legitimate beefs there, but you would have to be a moron to think she, or her staff/front menwomen would be interested in this lightweight blunder handed dog and pony show. Thatcher will die before she is senile enough to give Palin an audience.

  4. earlofhuntingdon says:

    More on point are these comments on Drake and Manning in the Guardian by Judith Ehrlich:

    Judith Ehrlich, whose 2009 film The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers explored the 70s leak of US government documents on the Vietnam war, said Obama had indicted five alleged whistleblowers since taking office, making him the “worst president in terms of his record on whistleblowing”….

    [W]histleblowing had become more dangerous than ever, in part due to the restrictions imposed by the US patriot act [sic], which was brought in by George Bush in 2001 and recently extended for several years by Obama.

    Ehrlich praised Manning for his “courage” if he were responsible for the US embassy cables leak, adding: “There is no safe way to leak. He is prepared to spend his life in prison or be executed.”

  5. decora says:

    18 USC 1030 (a)(2) is also one of the charges against Bradley Manning.
    18 1030 is the Computer Fraud and Abuse Act.

    IMHO it’s a backdoor Espionage Act. They took all the laws criminalizing the disclosure or posession of information, broadened them to apply to more people and more types of information, and then stuck ‘computer’ on the end of them so that nobody would notice what was happening. Since all information nowdays is sent on computer, it’s kind of going to become the “go to” law to harsh on whistleblowers… maybe?

    • bmaz says:

      It certainly is. And if the government has the evidence they appear to have, it is extremely hard, if not near impossible, to see a defense for Manning. It should also be noted that there are a LOT of subparts to 18 USC 1030, and the ones that will be plied against Manning are far, far more severe than the nearly inconsequential limited provision Drake pled to. These are the backup charges, along with the wrongful uploading and downloading specifications, that place Manning in a completely different posture than Drake. The defense theory Drake legitimately had available is nano-wafer thin, if not non-existent, with Manning.

      • decora says:

        Manning is only charged uner 18 USC 1030(a)(1) (computer espionage) and 1030(a)(2) (unauthorized access).

        Lets take Charge Sheet 1 Charge 2 Spec 1. 1030(a)(1) in regards to the Collateral Murder video.

        Here’s a defense. (a)(1) criminalizes passing information that’s been “been determined by the United States Government pursuant to an Executive order or statute to require protection against unauthorized disclosure for reasons of national defense or foreign relations”. Note it doesnt use the word ‘classified’.

        Now, as far as I am concerned, the ‘collateral murder’ video “protection” had nothing to do with ‘national defense’ or ‘foreign relations’. Why did the executive orders ‘protect’ that video? The usual BS reasons, overclassification, covering up controversy and incompetence, etc etc. What is my evidence? There were people all over FOB Hammer watching these types of videos as entertainment – there are even similar videos uploaded to youtube. I call that “de-facto unclassified” and selective prosecution of Manning in order to persecute the source of whistleblowing, and suppress public discussion of an important topic, namely the conduct of the war in Iraq. Colin Powell showed those kinds of videos during Gulf War I while Norman Schwarzkopf told jokes about dudes getting killed on TV . . what is the difference?

        Now what about charge sheet 1 charge 2 spec 5, 1030(a)(2) in regards to the Collateral Murder video. (a)(2) says “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . ”

        Ok. He had authorization. He had authorized access. That stuff, as stated, was open and everyone at FOB Hammer was showing it off to their buddies. It was all over the place. Again, de-facto authorized, and selective prosecution to punish whistleblowing.

        Even the Espionage Act charges, 793(e), have problems. Sheet 1 Charge 2 Spec 1 – the Collateral Murder video and 18 USC 793(e). That law uses the phrase ‘information related to the national defense’. Now, when Congress made that law, it was talking about stuff like diagrams of ships, and secret memos revealing war plans. Please tell me how gun camera footage reveals vital national defense information? Was it the part where the guy said ‘got those bastards’ after he shoots a reporter? Was that vital national defense information? If it is, then why is similar stuff leaked all over youtube as ‘trophy videos’ or ‘entertainment’?

        • bmaz says:

          Man, that all sounds great. However, it is not even remotely close to how the pertinent and relevant laws read, are intended or will be described in the instructions that are given to the jury. Not even close. Whether Manning acolytes want to admit it or not, there are laws, they are designed for a reason, and they do not contain the headroom in their application you are imputing to them. You think Drake did not have authorization, access and authorized access to the subject computers at the NSA? Of course he did, but not for any purpose unintended. Even Drake, who is and was pretty principled and consistent in not being willing to plead to anything he did not, in fact, do, knowingly and willingly pled guilty to not having the requisite authorization and permission for access for the purposes he undertook. Manning did not have permission or authorization to access and use in the manner he did and, assuming they were convinced Manning was indeed the actor who did the deeds, there is no jury in the world that, properly instructed, is going to find otherwise. And certainly no military panel. Now it may well be possible to exclude some evidence and impeach other evidence and create reasonable doubt as to whether Manning was the guy, probably doubtful but theoretically possible, and defend on that basis; but what you are suggesting is wild eyed pie in the sky wishful thinking. I wish it were so, but it is not.

    • JTMinIA says:

      My prediction is that the outcome in the Drake case will be presented to the Great Unwashed as a victory for the DoJ, making up for any residual negatives for Welch from the Stevens case. In other words, not only will Welch not be fired for this, but he might get promoted. Isn’t that how these things usually work?

  6. maa8722 says:

    I think plea deals are always a symptom of some level of weakness in a case. Then it becomes like negotiating over the price of a used car offered for sale by a stranger.

    If that’s the case this time, and illegal wiretapping were really an issue here (doesn’t seem clear), I’m surprised Drake went along with a deal instead of toughing it out.

    And yet that could have involved a long road of appeals, expense, uncertainty, etc. So this was a practical decision on his part, and he can get on with his life.

    • bmaz says:

      Sometimes pleas are due to some weakness in the underlying case, sometimes just a way of moving cases along the system because the cases are strong and all parties want to move along. From my experience, there is by far more of the latter than the former. And if that was not the case, the court system would be so backed up nobody would ever get a trial. Pleas promote judicial efficiency.

      • rosalind says:

        And if that was not the case, the court system would be so backed up nobody would ever get a trial. Pleas promote judicial efficiency.

        My last turn at jury duty, several of us got re-assigned to a court in Glendale. The judge gathered us together and explained her critically understaffed Courthouse was being temporarily staffed with newbie folks who refused to plea bargain and demanded to take every case to trial. She had several cases that had to get pled or to trial or the defendants would be released that day due to due process time limits, and had spent the morning going back and forth with the lawyers to no avail, and was finally forced to call for dozens of potential jurors to get there ASAP. By the time we arrived, the lawyers had finally relented and agreed to plea bargains and we were sent back downtown. The judge was near tears as she explained the situation to us.

        This experience has made me even more appreciative of Bmaz’ posts on the Obama administration’s complete failure at managing judicial nominations. What I experienced that day is going on every day in every town across America.

        • bmaz says:

          Yeah, and that is the cute new trend for state and local level prosecutors that are elected or have aspirations for higher elected office: set very brutal restrictions on plea offers so they look “tough on crime”. It is asinine and a dereliction of prosecutorial duty as your judge made clear.

          • rosalind says:

            the other dynamic at work is the Judicial vacancies were being temporarily filled by retired Judges brought back for an interim period. Our Judge implied these Judges were basically keeping the seat warm and collecting a paycheck, and had no interest in taking control of “their” court room.

  7. orionATL says:

    i very much appreciate all the comments above and bmaz’s responses.

    it is like reading the letters to the editor a month after a magazine article has been published with back-and-forth from critics and authors.

  8. orionATL says:


    i like your way of thinking. manning is not going to be have his punishment lessened by his defense strictly following the law as written. there will need to be in-court and extra-court arguments of the sort you are making.

    it is just one of the tragedies of american law as practiced these days that it is haunted from top to bottom, from young trial lawyers to supreme court bishops, by literalism, by the spirit of javert, and by implacable thrust for punishment.

    “justice” has has entirely given way to “law” (and privledge).