Gov't strikes plea deal in leak of classified docs

[June 10, 2011]  BALTIMORE (AP) -- A former top official with the National Security Agency who was accused of passing classified documents to a reporter has agreed to a plea bargain with prosecutors in a deal that pleased civil-liberties advocates but is a setback for the Obama administration's effort to crack down on leakers.

Former NSA executive Thomas Drake, 54, of Maryland is expected to plead guilty Friday in federal court in Baltimore to the unauthorized use of a government computer, a misdemeanor, while the government will drop 10 felony counts, including the unauthorized possession of classified documents, that could have sent him to prison for 35 years.

The lesser charge still carries a maximum penalty of up to one year behind bars and a $100,000 fine, but the Government Accountability Project, a whistleblower advocacy group, said that under the arrangement Drake wouldn't spend any time behind bars or pay a fine.

The deal was struck after nearly a week of negotiations between federal prosecutors and Drake's defense team, and averted what was expected to be a three-week trial.

The government's case against Drake, who blew the whistle on what he considered a billion-dollar boondoggle at his former agency, appeared to unravel after prosecutors said early this week that they planned to withdraw some evidence rather than risk exposing an unidentified telecommunications technology targeted by the NSA's vast electronic eavesdropping network.

Had Drake been convicted in a trial, he could have faced up to 35 years in prison on charges of obstruction of justice, lying to the FBI and illegal possession of classified NSA documents under the seldom-used Espionage Act of 1917, even though he was not accused of spying. The Act is regarded by some legal experts as vague and overly broad.

Drake's supporters say that if prosecutors had pursued the case, it would have made it harder to hold the U.S. intelligence community responsible for waste, abuse and mismanagement.

"The case clearly collapsed," said Jessalyn Radack of the Government Accountability Project. "It was a case built on sand, and when the government was put to the test, I think it shows that whistle-blowers are not spies and that the Espionage Act is a particularly heinous tool that should never be used to cover up government wrongdoing and punish whistle-blowers who oppose it."

As a presidential candidate, Barack Obama called for a more open government and lauded federal workers who reported wrongdoing. But with the disclosure of hundreds of thousands of sensitive military and diplomatic documents by the anti-secrecy website WikiLeaks last year, President Obama appeared determined to halt the exposure of national security secrets.

He has pursued cases against five government leakers under espionage statutes, more than any of his recent predecessors.

William M. Welch II, the senior prosecutor, warned in court documents in the Drake case that U.S. "national security would crumble if every individual could anoint himself a whistle-blower ... and immunize themselves from prosecution for the most damaging of classified information disclosures."

Under the agreement, the government and Drake agreed that if the case had gone to trial, prosecutors would have proved that from February 2006 through about March 2007, Drake intentionally logged into a system called NSANet, obtained official NSA information and provided it orally and in writing to another person who was not permitted or authorized to receive it.

Drake "knew that NSA restricted the use of and access to its computers and NSANet to official use only" when he accessed them, the plea documents said.

Court papers did not name the unauthorized person who received the information. But the indictment said Drake leaked to a newspaper reporter, identified in other court documents as Siobhan Gorman, who wrote an award-winning series of articles on the NSA for the Baltimore Sun.

Newspaper spokeswoman Renee Mutchnik said late Thursday the paper had no comment. Gorman, who now works at The Wall Street Journal, did not respond to a request for comment.

The NSA is one of the government's largest spy agencies, employing an army of linguists, cryptologists and computer experts to snoop on electronic communications across the globe from its headquarters at Fort Meade, Md., south of Baltimore.

The need for secrecy is drilled into NSA employees, who sometimes joke the initials stand for "Never Say Anything," and "No Such Agency."

But as it prepared to prosecute Drake, the government appeared to struggle to craft a case that avoided the disclosure of some of the spy agencies targets and capabilities.

The last straw may have been U.S. District Judge Richard Bennett's recent decision, detailed in a June 5 letter from prosecutors, rejecting efforts to mask references to "NSA's targeting of a specific telecommunications technology" in six documents entered into evidence.

As a result, the prosecution said, it was withdrawing four of the documents and would eliminate any reference to the technology in two others.

The government never publicly described the classified documents it said it found in Drake's Maryland home, beyond their titles and the fact they were secret.

But the documents are thought to relate to the NSA's internal debate over TrailBlazer, an ill-fated project launched in 2002 to use contractors to overhaul the agency's vast computer systems to capture and screen information flooding into the agency's computers from the Internet and cellphones.

The project eventually cost $1.2 billion, but never worked as intended and was ended in 2006.

Drake supported an in-house system that was much cheaper and which he said could have gathered critical information about al-Qaida before the Sept. 11, 2001, terrorist attacks. He was also critical of the NSA's domestic spying after 9/11.

Steven Aftergood, head of the Federation of American Scientists' Project on Government Secrecy, said while the government needs to keep some things secret, it had overreached in the Drake case.

"The whole experience has been shattering," Aftergood said. "But I think the primary message is to the government that not every security infraction is or ought to be a federal case. You can break the rules without committing a felony. And the government should not overreact to every little deviation from the rules."

[Associated Press; By DOUGLAS BIRCH and PETE YOST]

Yost reported from Washington.

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