Did Thomas Drake Get iJustice?

There’s an interesting discussion at the end of Josh Gerstein’s article on the Drake plea agreement. He points out that after Judge Bennett ruled that the government needed more descriptive substitutions for some of its exhibits, DOJ did not appeal the decision.

Experts said it was unlikely that Bennett’s rulings accounted entirely for the government’s sudden willingness to accept a sharply reduced charge. In a court filing Friday, prosecutors said “the government respectfully disagrees with the Court’s rulings” regarding what information Drake was entitled to use in his defense.

“In light of the Court’s ruling, which would mean that highly classified information would appear, without substitution, in exhibits made publicly available, the NSA has concluded that such disclosure would harm national security,” prosecutors wrote.

In cases involving classified evidence, the government has the right to pursue a pre-trial appeal challenging a judge’s rulings about what evidence the defense can present and any “substitutions” used to camouflage secret information.

Despite its disagreement with Bennett, who was appointed to the bench by Bush, the Justice Department did not challenge the judge’s rulings and instead commenced jury selection for the trial.

He also describes Jesselyn Radack, who in her role at Government Accountability Project, had supported Drake in his whistleblower stance, saying,

Radack told reporters that when [prosecutor William] Welch initiated plea talks a week ago he said he was doing so at [DOJ Criminal Division head Lanny] Breuer’s urging. She attributed the government’s flexible stance in part to sympathetic media coverage Drake received in recent weeks from The New Yorker and “60 Minutes,” among others.

Now, I have no idea whether Radack was close enough to the DOJ side of things to be able to judge their motivation. But I am struck that Lanny Breuer instructed Welch to seek a plea deal. And if Radack’s timing is correct, then DOJ started seeking a plea deal on the same day that Bennett ruled on the CIPA substitutions, but before DOJ actually withdrew its exhibits.

Radack attributes DOJ’s changed stance to reporters’ coverage of Drake’s case (ironically, in fact, to New Yorker and 60 Minutes pieces that almost certainly contained far more classified information in them than Drake was alleged to have kept).

But POGO’s Danielle Brian recalls that she raised Drake’s treatment with President Obama back in March.

I knew my topic was likely to be sensitive. I began by thanking the President for his strong support of whistleblower protections, and noted that it was not for lack of effort on the part of the White House that the legislation didn’t pass at the end of the last Congress.

I noted, however, that the current aggressive prosecution of national security whistleblowers is undermining this legacy. That we need to create safe channels for disclosure of wrongdoing in national security agencies. That we need to work harder to shrink the amount of over-classified materials that unnecessarily prompt leak prosecutions.The President shifted in his seat and leaned forward. He said he wanted to engage on this topic because this may be where we have some differences. He said he doesn’t want to protect the people who leak to the media war plans that could impact the troops. He differentiated these leaks from those whistleblowers exposing a contractor getting paid for work they are not performing. I was careful not to interrupt the President, but waited until he was done. I pointed out that few, if any, in our community would disagree with his distinction—but that in reality the current prosecutions are not of those high-level officials who regularly leak to the press to advance their policy agendas. Instead, the Department of Justice (DOJ) is prosecuting exactly the kind of whistleblower he described, for example one from the National Security Agency.

The President then did something that I think was remarkable. He said this is an incredibly difficult area and he wants to work through how to do a better job in handling it.

And Brian also mentioned something I thought of, too: Thomas Drake’s chance encounter with Eric Holder at the Apple store where he works.

Former National Security Agency (NSA) official Thomas Drake, who is being prosecuted under the Espionage Act for allegedly “retaining” allegedly “classified” information (deemed so AFTER the evidence was seized from his house and subject to a Forced Classification Review), was busy at work at the Apple Store.  Attorney General Eric Holder was at the iPhone table.

Drake said,

Attorney General Holder [Holder looks up]–I’m Thomas Drake, the former National Security Agency official who’s been in the news.

Holder looked directly at him. Drake then asked,

Do you know why they have come after me?

Holder answered,

Yes, I do.

Drake asked,

But do you know the rest of the story?

Holder looked away, and then just left the store with his small entourage, including his security detail.

That encounter appears to have happened in late May.

Mind you, it shouldn’t take personal encounters like this for the Administration to realize it was going to look really stupid trying to convict a guy for keeping two unclassified documents in his email archive. But in the same way that it took PJ Crowley asking the President about Bradley Manning, did it take Thomas Drake asking Eric Holder about his own case to make that case to the Administration?

  1. Arbusto says:

    President stated this is an incredibly difficult area and he wants to work through how to do a better job in handling it. Does he mean he wants to treat each leak on its own merits and have a policy to investigate and prosecute as warranted? Or does he mean that his administration, cracking down on whistleblowers as never before, while grabbing more police and executive power, continues to trip on it’s own dick and needs a more compliant court and Congress with band aids for he and his administrations poor actions?

    • emptywheel says:

      The timing of the Obama-Brian exchange is interesting. It was after PJ Crowley asked him about Manning, but before they announced Manning’s transfer to Leavenworth.

  2. CTuttle says:

    …Holder looked away…

    F*cking weasel…! 8-(

    I hope he shares the same ring of hell as AgAg and Ashcroft, amongst others…! *gah*

  3. ubetchaiam says:

    Manning doesn’t fall under Obama’s “He said he doesn’t want to protect the people who leak to the media war plans that could impact the troops.”
    so why -strictly rhetorical,folks- is Obama and DOJ so hardass on him?

    And some of the ‘wikileaks cables’ Manning allegedly provided did fit Obama’s “leaks from those whistleblowers exposing a contractor getting paid for work they are not performing.”

    the hypocrisy is beyond belief.

  4. orionATL says:

    so we have a president AND an attorney general so oblivious to injustices that are directly attributable to their policies and actions

    that they have to be informed by outsiders of the harm being done to govt employees in their names?

    can a president be this naive? not likely.

    more likely is ” don’t ask/won’t tell” –

    as president or attorney general, don’t ask for the details of a matter, then your subordinates will not have to provide you with troubling details.

    oh wait, that strategem has already been named – “willful ignorance”/”plausible deniability”.

    in any event, these stories reinforce the need to publicly, persistently, loudly object to subordinate misconduct below the level of president or attorney general.

  5. JohnLopresti says:

    I think the interpersonal interaction description concerning the chance meeting in a retail venue collapses after the section regarding the first part of the contact. I would expect the AG to shun an extemporaneously declared lobbyist as briskly. I admit to not having followed the Drake matter, as much of the journalism has seemed inaccurate. I am glad Ms. Radack is seeking to monitor the situation, given her brush with inscrutable hierarchy in the department. Beyond those fairly OffTopic observations, I would add solely that those kinds of computer stores can be fun, as occurred in Tokyo on the iPad*s first day sales.

  6. wendydavis says:

    “That we need to create safe channels for disclosure of wrongdoing in national security agencies.”

    You would think that would be utterly self-evident. I just don’t get the thinking here.

    Thanks, Emptywheel; when I read of the plea deal, I wanted to hear more from you.

    • CTuttle says:

      But, that would expose all the shady, shoddy buck$ spent on our massive, global MIC/Intel apparatchik’s ‘Black Budget’…!

  7. fatster says:


    Lawyers for Guantánamo Detainees Allowed to See Leaked Files

    “The Justice Department has eased restrictions preventing lawyers representing prisoners at the military prison at Guantánamo Bay, Cuba, from reading the classified files about their clients that were leaked to WikiLeaks and then made widely available on the Internet.”


  8. bailey2739 says:

    You are very difficult to stay even reasonably behind. (I gave up trying to keep up with you some time back, there’s just not that much time in the day.)

  9. Mary says:

    One thing to keep in mind is that gov could have asked for an interlocutory appeal of Bennett’s rulings as to what Drake could use. Dangle the National Security claim, and it would almost certainly have been certified for interlocutory.

    They didn’t.

    It could be bc there was already a closed door policy to get a deal, any deal, done bc of PR. It could also be, thought, that they didn’t want this kind of issue going up in this particular procedural setting and at this time. If an appellate court agreed with the right of Drake as a criminally accused to use the info at trial, that would be an awkward ruling for the “judges” of the convened military commissions to have floating out there in a crim setting when their commissions are still struggling for real rules of the road.

    In the end, too, facts make the law. Drake’s case is incredibly more sympathetic on the facts for some of the issues of Exec branch corruption, lies, coverups, etc. as “classified” info. Gov would much rather have a defendant who wasn’t one exposing corruption and ineptitude in an agency that is also likely unconstitutionally violating Americans day in, day out to be their test subject for the appeal of these rights to withhold and prevent use.

    Still, just a fwiw.

    Whatever happened to Tamm, btw?

    • bmaz says:

      They finally, after an interminable time, gave Tom Tamm a declination letter. And, yes, not only could the govt have sought interlocutory appeal, this is exactly the kind of situation and posture the concept was intended for in criminal cases, they routinely avail themselves of such device, and that they did not even make a plaintive noise about doing so speaks volumes.

  10. Mary says:

    Thanks for the Tamm update – if I “knew it” I’d forgotten it with too many things going on these days.

    I have to wonder if Holder was stopping by to check out i-phones after wrapping a stint at his soup kitchen.

    A part of the facade falls off the Sup Ct during the Bush admin, Mukasey is literally struck dumb during a speech defending torture, Rice Holder shopping for shoes iphones comes face to face with a whistleblower he is persecuting in the most malicious and petty ways possible at the i-store – – fact does whomp on fiction ever so often, doesn’t it?