NSA Whistleblower: Tom Drake

Thomas Drake is a patriot who has dedicated his life to safeguarding his country. A ten-year veteran of the Air Force (specializing in intelligence), he served as a CIA analyst and contractor for the National Security Agency (NSA) for 12 years before joining it full time in 2001.

Drake took his oath to support and defend the U.S. Constitution seriously. He steadfastly refused to look the other way upon discovering that NSA had instituted a program that sacrificed Americans’ security and privacy, and was laden with massive waste. He did what was right and reported the wrongdoing through proper channels.

Drake took his grave concerns to his superiors at NSA, to Congress and to the NSA and Department of Defense Inspectors General (DoD IG). Retaliation soon followed. Management took aim at Drake’s career by removing his responsibilities and shifting him to a meaningless position. He was increasingly isolated, singled-out, transferred away from projects, and marginalized. After his cooperation with DoD IG, which validated his concerns, Drake became the target of a wide-reaching and fruitless “leak” investigation related to the infamous NSA warrantless wiretapping scandal – despite the fact that he had nothing to do with the “leak” being investigated.

After reaching out to multiple proper oversight bodies, nothing changed. Finally, Drake made legal disclosures of unclassified information to a Baltimore Sun reporter, who wrote a series of award-winning articles that exposed this billion-dollar boondoggle at NSA.

For acting out of conscience and refusing to stand by as the NSA disregarded Americans’ safety and privacy, the reprisal against Drake culminated in one of the most severe forms of whistleblower retaliation: criminal prosecution. The government conduced an armed raid of Drake’s home, interrogated him repeatedly, and threatened him with spending “the rest of his natural life behind bars.” The Department of Justice (DOJ) indicted Drake under the Espionage Act with improper “retention” – not disclosure – of allegedly classified information, and Drake faced decades in prison.

Drake came to GAP for help. GAP provided Drake with legal advice on whistleblower issues and launched an aggressive media and public advocacy campaign. GAP’s help was, in Drake’s own words, “crucial.”
Background

While working with NSA, Drake became familiar with ThinThread – a data collection program that could efficiently and cost-effectively analyze massive amounts of data. ThinThread could provide pivotal intelligence for government agencies charged with identifying terrorism threats and networks. Even better, the program had privacy protections for Americans built into the system. ThinThread was ready to deploy prior to 9/11.

NSA management rejected ThinThread in favor of a different project – Trailblazer. This program was vastly more expensive than ThinThread, completely undeveloped, and lacked critical protections needed to safeguard Americans’ privacy. Drake was concerned that the decision to implement Trailblazer amounted to gross fraud that cost taxpayers billions, and that NSA was conducting illegal and unconstitutional domestic surveillance in the aftermath of 9/11. Drake and several colleagues were devastated by 9/11, believing that if management had deployed ThinThread when it was ready, NSA likely would have gained actionable intelligence prior to the attacks.


Drake’s Disclosures

Drake took his concerns through official channels – including senior NSA management and two 9/11 congressional investigations. His concerns were ignored.

In September 2002, three retired NSA employees (two of whom are GAP clients – J. Kirk Wiebe and William Binney) and a retired congressional staffer filed a complaint with DoDIG accusing the NSA of massive fraud, waste and mismanagement in connection with NSA’s rejection of ThinThread and endorsement of the failing Trailblazer. Drake did not sign the complaint because, still working at NSA, he feared retaliation. However, Drake became a critical material witness for the DoDIG, fully cooperating with the investigation and using proper channels to provide the office with thousands of documents – classified and unclassified. In late 2004/early 2005, after years of investigation and thousands of pages of documents from Mr. Drake, the DoDIG released a report substantiating Drake and the complainants. Using the Freedom of Information Act, GAP later obtained a redacted copy of the classified report.

Drake and Radack at the Ridenhour AwardsDrake should have been praised for his efforts. Instead, NSA management retaliated against him by cutting funding to programs under his responsibility and transferring him away from key projects. For the rest of his NSA career, Drake was increasingly singled out, marginalized, and isolated.

Meanwhile, NSA management persisted in rejecting the successful and cost-effective ThinThread while promoting Trailblazer, which was already failing despite never having been fully developed.

Left with no other options, Drake began legally communicating with a Baltimore Sun reporter about Trailblazer – never sharing any classified information. In fact, one of the ground rules Drake insisted upon for their communications was that he would never provide classified information. The Sun published a series of articles exposing the $1.2 billion debacle.

Meanwhile, when the New York Times published a story exposing the NSA’s unconstitutional warrantless wiretapping program, the FBI launched an expansive – and fruitless – investigation into the sources for the article. Although Drake was not a source for it, the federal government used the “leak” investigation as a pretext to persecute him. In November 2007, a few months after the FBI subjected three of the original DoD IG complainants to simultaneous armed raids, approximately a dozen armed federal agents raided Drake’s house. Drake, his wife, and their young son watched as the raid was broadcast on the news that evening and the next morning Forced out of NSA (he resigned voluntarily, significantly with no adverse action on his personnel record), Drake found work at the local Apple store.

Justice Department officials interrogated Drake for hours on several occasions. Knowing he had done nothing wrong, Drake cooperated with the pre-textual “leak” investigation until he realized that the purpose was to retaliate against him. The officials pressured Drake multiple times to take a plea deal, threatening him with spending the “rest of his natural life behind bars” if he didn’t – but Drake “refused to plea bargain with the truth.”

Drake hoped that the new Obama administration – one that had touted the importance of federal whistleblowers during the 2008 campaign – would reverse direction and cease the use of the criminal justice system to go after whistleblowers. However, after Drake lived under the cloud of possible prosecution for two and a half years after the FBI raided his home, the DOJ finally indicted him in April 2010.

Drake was charged under 10 separate counts, 5 of which were charges brought under the Espionage Act – a 1917 piece of legislation intended to be used against spies. Drake was only the fourth case in U.S. history where the government used the Act to go after someone for allegedly mishandling classified materials – tellingly, Pentagon Papers whistleblower Daniel Ellsberg was the first.

Despite press statements to the contrary, Drake was not charged with disclosing classified information to a reporter, but rather accused of the alleged improper retention of allegedly classified information. After spending years investigating Drake, it is clear that if DOJ had evidence of Drake disclosing classified material, it would have charged him with disclosure under the relevant law for such a crime.

Drake faced decades in prison for doing the right thing.

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