April 15, 2010
Former N.S.A. Official Is Charged in Leaks Case
By SCOTT SHANE
WASHINGTON -- In a rare legal action against a government employee accused of leaking secrets, a grand jury has indicted a former senior National Security Agency official on charges of providing classified information to a newspaper reporter in hundreds of e-mail messages in 2006 and 2007.
The official, Thomas A. Drake, 52, was also accused of obstructing justice by shredding documents, deleting computer records and lying to investigators who were looking into the reporter's sources.
"Our national security demands that the sort of conduct alleged here -- violating the government's trust by illegally retaining and disclosing classified information -- be prosecuted and prosecuted vigorously," Lanny A. Breuer, the assistant attorney general in charge of the Justice Department's criminal division, said in a statement.
The indictment, approved Wednesday by a grand jury in Baltimore and made public on Thursday, does not name either the reporter or the newspaper that received the information.
But the description applies to articles written by Siobhan Gorman, then a reporter for The Baltimore Sun, that examined in detail the failings of several major N.S.A. programs, costing billions of dollars, using computers to collect and sort electronic intelligence. The efforts were plagued with technical flaws and cost overruns.
Only a small number of prosecutions have been brought against government officials in recent decades for improperly disclosing information. Such cases often provoke a public debate over the tradeoff between protecting government secrets and covering up government wrongdoing or incompetence.
The indictment suggests the Obama administration may be no less aggressive than the Bush administration in pursuing whistleblowers and reporters' sources who disclose government secrets. In a little-noticed case last December, a former contract linguist for the F.B.I., Shamai Kedem Leibowitz, pleaded guilty to leaking five classified documents to a blogger.
In the Bush administration, the Justice Department spent several years investigating The New York Times's sources for a 2005 article that revealed the existence of the N.S.A. program of eavesdropping without warrants. No one has been charged in that case.
Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, a press advocacy group, called the indictment of Mr. Drake unfortunate. "The whole point of the prosecution is to have a chilling effect on reporters and sources, and it will," Ms. Dalglish said.
Mr. Drake, who began working as an N.S.A. contractor in 1991 and was a high-ranking agency employee from 2001 to 2008, is charged with 10 counts, including retention of classified information, obstruction of justice and making false statements. The retention counts each carry a maximum penalty of 10 years in prison and a $250,000 fine.
The indictment asserts that Mr. Drake, a computer software expert, contacted the reporter at the urging of a friend and set up a secure e-mail account, through a company called Hushmail, that allowed him to send anonymous e-mail to the reporter. He later met the reporter and turned over classified documents with the classification markings removed, the court document said.
James Wyda, a federal public defender representing Mr. Drake, said his client has been "extraordinarily cooperative" with investigators and was "very disappointed that the process ended in criminal charges."
"Mr. Drake loves his country," Mr. Wyda said. "We look forward to addressing these matters in a public courtroom."
Ms. Gorman, who now works for The Wall Street Journal, has not been accused of wrongdoing. A spokeswoman for The Journal, Ashley S. Huston, said Ms. Gorman had declined to comment. A spokeswoman for The Baltimore Sun also declined to comment.
In addition to describing the technical programs, the Sun articles disclosed a crisis in meeting N.S.A.'s demands for electrical power and described how the agency had rejected a program that had the promise of collecting communications while protecting Americans' privacy.
The articles, though, did not focus on the most highly protected N.S.A. secrets -- whose communications it collects, exactly how it collects them and what countries' codes it has broken.
That may make a prosecution more feasible, from the point of view of protecting secrets during a trial. But because the articles in question documented government failures and weaknesses, the decision to prosecute could raise questions about whether the government is merely moving to protect itself from legitimate public scrutiny.
Ms. Dalglish, the press advocate, said Ms. Gorman's N.S.A. articles exposed "a multibillion-dollar boondoggle that was of great interest to Congress." She called the articles "important public-interest reporting."
News reports based on classified information are common, and they are often followed by a referral to the Justice Department for investigation. But prosecutions remain rare, in part because of the difficulty of identifying sources and in part because spy agencies fear a trial will do more damage to national security than the original disclosure.
Among the most famous cases was the prosecution of Daniel Ellsberg, then a military analyst for the Rand Corporation, for disclosing the Pentagon Papers, a secret history of the Vietnam war, to The New York Times in 1971. The charges were dismissed because of illegal wiretapping and other government misconduct.
In 1985, Samuel Loring Morison, a naval intelligence analyst, was convicted of espionage and other crimes after he provided classified satellite photographs to Jane's Defense Weekly. He was sentenced to two years in prison.
In more recent years, two high-profile prosecutions involved leaks. Lawrence Franklin, a Defense Department official, pleaded guilty in 2005 after being charged with sharing classified information with two officials of a pro-Israel lobbying group. Those officials, accused of passing some of the information on to reporters, were also indicted, but the charges were later dropped.
Also, a top aide to Vice President Dick Cheney, I. Lewis Libby Jr., was charged with perjury and other crimes in an investigation of the disclosure to the news media that Valerie Wilson was an undercover officer of the Central Intelligence Agency. Mr. Libby was sentenced to 30 months in prison, but President George W. Bush commuted his sentence.