Mr. Drake Goes To Washington

From: Justice Integrity Project

by Andrew Kreig

Mr. Drake Goes To Washington

Former National Security Agency executive Thomas Drake warned the public March 15 at the National Press Club against the federal government's crackdown on whistleblowers.

Drake, who escaped a potential term of life in prison for communicating with a Baltimore Sun reporter, said the government has the ability to make such conduct illegal retroactively. Regarding the larger issues, he asked, “How else will the press report the real news when their sources dry up and the government becomes a primary purveyor of its own news?”
Drake's revelations and passion resembled James Stewart's iconic performance in Mr. Smith Goes To Washington protesting corruption, including during a Senate filibuster. Yet Drake, at left in a Noel St. John photo from the club speech, focused on dangers far more important than the 1939 film's portrayal of corruption in Congress.
Drake describes pervasive surveillance on Americans by spy agencies as well as an alleged billion dollars in wasteful spending to well-connected contractors. He says the wasteful overpayment exists even if one accepts the premise that the government must secretly undertake such surveillance – regarded as illegal in the United States until secretly authorized in recent years.

Drake's warnings became all the more real this month. A top CIA executive boasted that, "We 'Try To Collect Everything And Hang Onto It Forever." Separately, a trade publication reported this week that the CIA has reached a $600 million deal with Amazon.com for the agency to hire the retailing giant to help create a better cloud computing capability. The CIA declined comment on the details.
Authorities threatened Drake with ruin in his 2010 indictment because he dared speak about such trends. In this, he resembled James Stewart portraying the whistleblowing Senator Jefferson Smith, shown at right in the Senate upon receipt of huge cartons of trumped-up letters demanding that the Senate expel him on phony charges.

Drake's impressive background includes work for the Navy and Air Force, and at the CIA as well as the NSA, which is a larger and more secretive spy agency than the CIA. Early in Drake's career, he learned that "anything goes" at spy agencies regarding their offshore work, but they were strictly forbidden to use their methods within the United States on Americans.

That code changed, he says, under NSA Director Michael Hayden, his boss. Drake and others describe Hayden, a former general, as a man who curried favor with the Bush-Cheney administration with his gung-ho attitude on surveillance encompassing virtually all phone calls and emails. The administration pressured news organizations such as the New York Times against reporting violations of longstanding American law.
Drake was lucky to escape from life imprisonment after the government tried to railroad him on spy charges for emailing a reporter. The Government Accountability Project defended him when others dared not. Drake had the further good fortune to land before an honest judge who withstood the high-pressure government tactics that normally crush whistleblowers.
The importance of Drake's story, however, is not the drama of his case nor his revelations. Instead, the largely untold story is that Drake and a few other patriots in government stand at a historic juncture for the United States. Without them or their successors, the public may never again have access to those with knowledge and courage able to inform the public how the Constitution and its Bill of Rights are being gutted, perhaps forever.
Drake's Press Club speech illustrated this pivotal juncture. The column below contains video links to the full speech and news coverage, as well as highlights from my five-hours of follow up conversation with him afterward in the Press Club lounge. Drake's topic for his speech was whistleblowing and the free press. In discussions afterward, he shared an even wider and more ominous view of the impact of the national security state on democracy and civil rights.

A long appendix lists relevant coverage of his case and its larger dimensions. Especially significant as context was a 2012 forum by the nation's two leading press clubs, which I covered in Press Clubs Probe Obama's War on Leakers. James Bamford, author of major books about NSA, and James Risen of the New York Times warned of dire trends reducing independent news coverage.

If authorities can imprison government officials and former officials on spy charges for discussions with reporters, Risen said, that would make it extremely difficult to obtain non-official views, even off the record. He noted that reporters themselves are threatened with imprisonment and other career ruin in a pattern that imposes fear and silence on both sources and reporters. He thus confirmed from a reporter's viewpoint the kind of message that Drake described this month from a source's perspective.

Risen co-authored the 2006 book State of War, which provided, among other revelations, a breakthrough description of massive, illegal surveillance by the Bush administration of the American public. The Times sat on the story for nearly a year at the request of authorities.

President Obama, shown in a White House file photo, then campaigned in 2008 against the immunity for telecom companies that cooperated with the government in illegal spying. Once Obama secured the Democratic nomination for the presidency in mid-2008, however, he switched his position. He joined the rest of the power structure in a bipartisan majority in the Senate voting to keep government privacy invasions secret from victims by granting telecom companies immunity from customer litigation.  
The kind of vicious prosecution that Drake and other political targets experienced prompted me and four distinguished civic leaders to found the Justice Integrity Project three years ago. We observed that merely reporting on abuses without commentary had little impact. We have observed since then that advocacy cannot get at the root of the problem, either. It needs a comprehensive overview because the public is losing context of how much our underlying rights have been gutted in just a few years.

The importance of historical context became obvious during the Q&A of Drake's speech. Reporters new to the topic seemed to have difficulty grasping the full import of Drake's expertise and warnings. Several seemed incredulous that well known and widely respected officials might seek unfair retribution against critics by abusing the federal criminal process. 

For such reasons, my forthcoming book, Presidential Puppetry, documents more than a century and a half of deceptive and otherwise corrupt behavior in high places. The events extend through recent developments in the Obama second term, including the hidden backgrounds of major cabinet appointee not reported even during their confirmation hearings in recent weeks.

This column today began as a news report on Drake's speech. Inevitably, it became at least in part a preview of Puppetry because the topics overlap so much.

The Puppetry foreword, for example, was written by Dr. Cyril Wecht, at left, the illustrious Pennsylvania coroner, medical school professor, and author. Wecht has authored or co-authored more 40 books and 500 professional articles. Based on his observations over a long career, he describes the utter ruthlessness of federal prosecutors willing to take any conduct, no matter how trivial, and use it to ruin a target and his or her family if deemed necessary for political or career advantage by the law enforcers.  
For such reasons, my column confines to the appendix disposition of the official charges against Drake. The trial judge humiliated the Justice Department in an important pre-trial ruling by requiring open airing of the evidence. To save face, the Justice Department then reduced its case to a misdemeanor, that Drake had misused a government computer. I have reported extensively on that travesty, as have the New Yorker and CBS 60 Minutes in treatments available via the links below.
The Big Picture
 

During Q&A for more than 40 minutes with a small group of reporters after the Press Club lecture, Drake said he believed President Obama was "a deeply cynical man." Drake said he knows that the president was personally aware of his prosecution for whistleblowing, and decided nonetheless to proceed. The president's positive reputation includes, of course, his past as a law review editor and law school lecturer on the constitution, and his presidential advocacy for government transparency.
Most important of all, Drake told the Q&A group that he believes officials at the highest level are shredding constitutional protections on due process, press freedom, search warrants and privacy while the public is distracted by arcane disputes on other  matters.
He quoted with approval a German's recent comment to him: We (in Germany) "are living in a post-fascist society," and so know how to take precautions. You (in America) "are living in a pre-fascist society" and are unaware that the legal rules have been changed to allow oppression.

The public receives no protection from the U.S. Constitution, Drake said, if neither courts nor Congress will enforce its most relevant provisions.
Later we discussed how the leading Congressional advocate of privacy, Senator Ron Wyden (D-OR), admits that he has no power to call any witnesses before the Senate Intelligence Committee, even though Wyden is a three-term senator on the committee. Wyden has been protesting government abuses of American privacy.

I urged Wyden after one speech to invite Drake and two other experts before his committee to alert the public. One ex[ert would be Joseph Nacchio, the Qwest CEO who was the only leading regional Bell leader to refuse to turn over customer data to the NSA in early 2001 before 9/11. Another would be Mark Klein, the AT&T technician who learned his company was secretly delivering to the federal government billions of customer emails and phone calls. Klein served as a source to James Risen of the New York Times, but has never been invited by Congress to share what he learned.

Wyden said he had no such power. Nearly all committee hearings are in secret. Chairman Dianne Feinstein (D-CA) keeps ironclad control of the committee schedule.

As a more promising development for advocates of federal power within Constitutional boundaries, Sen. Rand Paul, left, the Republican from Kentucky, showed how even a freshman confident in his mission and with popular support (from tea party enthusiasts, in his case) can make a huge difference by such methods as a real-life filibuster. Paul's 13-hour filibuster March 11 protested the nomination of CIA Director John Brennan. Rand wanted the White House to provide a more clear-cut statement on whether it claimed the right to launch purely on Presidential prerogative lethal drone attacks against Americans on United States soil. Although the concept may seem far-fetched some drones are merely the size of hummingbirds, with a variety of potential capabilities.
Another positive sign for free speech was the Press Club's speaking invitation to Drake. As a result, C-SPAN made his talk available to the entire country. Such an invitation is far from foreordained when almost every prominent journalist or news organization seeks access -- and goodwill -- from newsmakers at top levels of government.
A memorable postscript to the Press Club speech occurred when a senior Club member stopped our table to tell Drake how much she had learned from his talk and to thank him for sharing his message in such a compelling way. She spoke so powerfully that I pulled out my pad and took notes. For several minutes, she eloquently praised Drake for what she described as an eye-opening speech. When she finished I asked her permission to quote her. She granted it and gave me her card.

Upon reflection, I'm not going to name her. The stakes and the dangers of reprisal are high. Even accomplished journalists and Washington old-timers, if they think that Drake's comments are new, clearly do not comprehend the risks even of being quoted praising him. Trust me on that.

Drake himself is proudly working in an Apple store after capping a military, CIA and NSA career in which he once reportedly directly to NSA Director Michael Hayden, right, on some of the nation's most secret operations. Many other former colleagues are undoubtedly making high incomes working for defense contractors.
Drake can experience the gratification of patriotism. But there are not necessarily easy avenues for sharing his message. The information gatekeepers who control such cable TV and similar slots largely confine commentary to partisan comments by a controlled stable of pundits who reliable slant their comments with either a Republican or Democratic spin. The power structure, which controls both corporate parties as well as the major media, can tolerate partisan quibbling. But it has little interest in enabling criticism of both parties on core Constitutional issues, especially ones that implicate major companies.

All of the major telecommunications carriers are suspected of providing confidential customer data to government for surveillance purposes. Most media companies, including newspapers and film companies, must answer to Wall Street. Even for a popular story, viewership and circulation represent only a small part of the financial calculus. The Washington Post, for example receives only about 4 percent of its income from circulation.
With that context, I am glad as a Press Club member that it showcased this issue. On a lighter note, it is redeeming itself from its Mr. Smith image. In the movie, Senator Jefferson Smith desperately sought news coverage on a visit to the Club. Aside from one tipsy reporter, he found a pack of cynics ready to believe the worst about him and otherwise take direction from the villains, one of whom was a press lord.
By contrast, recently elected Press Club President Angela Greiling Keane, moderator of the Drake speech, has underscored press freedom issues as a priority for her one-year term. In her introduction of Drake, she said his conviction “would have had a chilling effect on whistleblowers and journalists, who often receive and keep defense documents.”

The situation is far worse than that, in my study of such cases. The typical journalism source on sensitive matters is not going to be reassured simply because Drake was not imprisoned for the rest of his life on bogus charges. Instead, a reasonably prudent news source would look even at his prosecution as good reason to stay far away from a reporter probing a sensitive matter not fully approved by those in power.

To destroy Drake, the Justice Department inflicted on him one of the nation's most ruthless, powerful and notorious federal prosecutors, William Welch II, even after a federal judge had discredited Welch for leading the team that tried to frame the then-powerful U.S. Senator Ted Stevens in 2008 by withholding evidence at the Stevens trial.

Stevens, at left, was a Harvard law graduate who had been Alaska's U.S. attorney 60 years ago before becoming one of the nation's most senior U.S. senators. If Justice Department officials could try to frame Stevens what are the limits on what they might try to get away with to imprison an ordinary government employee?

Dr. Cyril Wecht, for one, knows very well. Federal authorities indicted him in 2006 for more than 80 felonies, primarily for sending 43 personal faxes when he was part-time Allegheny County coroner for 20 years in Pennsylvania. The faxes cost the county a total of $3.86 in ink, electricity and phone bills. The world-famous medical school professor had to spend $8.6 million in legal fees in two federal trials to avoid spending the rest of his life in prison.

The Republican prosecutor and initial trial judge obviously wanted Wecht, in his late 70s, to be imprisoned as a trophy. Why? Not simply because defendant was a Democrat, and the prosecutor planned to run for Congress as a Republican.

More than likely the prosecution was also to enforce wider discipline in the criminal justice system because Wecht, as a county coroner and nationally respected expert, sometimes made findings conflicting with other official statements on cause of death in sensitive cases.

One of the larger implications of Wecht's bogus prosecution was the outrageous federal prosecution theory affirmed at the highest levels of the Justice Department: that any government employee, even on a county level, who uses a government device -- a fax, computer or a phone -- for a private message can be selectively prosecuted and destroyed. In Wecht's case spanning the Bush and Obama administrations, neither Republicans nor Democrats running the Justice Department showed proportion or common sense, much less fairness, in overseeing the case. Their efforts undoubtedly cost taxpayers far more than the $8.6 million Wecht spent on his defense.

The First Tea Party

In 1987, I wrote Spiked: How Chain Management Corrupted America's Oldest Newspaper, a case study about dangerous trends in journalism in which news stories were shaped to fit the agenda of its congomerate owners and implemented by editor/henchmen focused on their own career advancement.

By contrast, my first boss, Hartford Courant Publisher John Reitemeyer, established a news-first priority system that carried forward under his immediate successors at the then locally owned newspaper. A staunch Republican conservative, Reitemeyer nonetheless editorialized in 1952 that the pro-Stalin Communist Paul Robeson should be able to perform a Hartford school despite the fierce pressures of the McCarthy era. When a theater owner barred a newspaper critic because of negative reviews, Reitemeyer again spoke up, decrying, "the growing, nationwide tendency to muzzle the press." The real issue," the publisher argued, "is the right of the people to know and the right of the press to tell them. It is a part of the fight for freedom of information throughout the world."
The government now treats whistleblowers against graft, waste and corruption about the same as it did Robeson, the Communist. And those in the rapidly shrinking news and publishing sectors have good reason to fear job loss if they antagonize VIPs in government or corporate world.
For such reasons, the public seems to me over-confident, in general, that the Constitution, courts, and Congress will protect against government oppression.

Our protections were created out of struggle at the nation's founding, and need to be preserved with the same fighting spirit today, not taken for granted. For example, the Courant printed the Boston Tea Party and Constitution-signing as news, and became the country's largest newspaper during the Revolutionary War by the devotion of its publishers to hard news, blunt commentary, and civic betterment. The paper's owners also were major publishers of the Bible, and the McGuffey's spelling book by correspondent Noah Webster that codified through many years of best-seller status a distinctly American language different from English.
These days, the Courant, owned by the Tribune conglomerate, remains as New England's second largest newspaper behind the Boston Globe. It is co-managed by Connecticut's Fox News affiliate under a special deal authorized by the Federal Communications Commission to waive cross-ownership rules. The waiver was to help the politically influential Tribune Company by allowing it to run the newspaper, TV and Connecticut's three major alternative weeklies for the youth market under one management.

Desperate for relevance even with such federal assistance, Fox News this month broadcast a report on "Connecticut Women's Day." The report consisted almost entirely of soft-core videos of well-endowed women, shown without heads, while they were walking along a street. A website for former Courant employees headlined the coverage as, "Boobs Behind the Camera, Too." Meanwhile the newspaper's journalism staff has been reduced from a high of 475 to 125.

Downsizing and similar job pressures have their parallels in professional standards elsewhere in the private sector and in government, with fear of job loss necessarily an important concern for anyone retaining a good job. It therefore takes serious professional commitment to stand tall on principle.
Justice Department ethics attorney Jesselyn Radack did so in late 2001 when she counseled her colleagues and superiors that they were not supposed to be lying to a federal judge in their zeal to win a conviction in a big case against John Walker Lindh, a young American who had converted to the Muslim faith. Lindh joined the Taliban at a time it was receiving American funding and otherwise a de facto U.S. ally. A U.S.-allied warlord captured Lindh in Afghanistan when war erupted in 2001. The warlord delivered Lindh to the United States, which charged him with aiding the enemy.

Radack, right, paid with her job for her advice to Justice Department colleagues against lying to a judge about trial evidence. Authorities then criminally investigated her, and sought to have her disbarred. Undeterred, she led the Government Accountability Project's successful defense of Drake under the leadership of GAP President Louis Clark, who is an ordained minister as well as an attorney and longtime non-profit leader.

Drake said, "If she hadn't spoken up he (Lindh) could have been executed."
There are many ways large and small that whistleblowers, journalists, and civic activists on a daily basis make a positive impact in creating a public affairs record. I'm grateful here, for example, for my friend Noel St. John's permission to use his Drake photos to illustrate this column. He volunteers at the Press Club in photographing its events.
Citizen Oversight

During the Q&A after the speech a reporter asked Drake, "What can an everyday person do?"
"Ensure that those you have power over are held accountable." That's the civic class/boy scout answer, which he still believes, much as "Mr. Smith" and his scouts tried to believe. In accepting an annual Ridenhour "Truth Teller Award," Drake said:

My case is centered on a government prosecution bent not on serving justice, but on meting out retaliation, reprisal, and retribution for the purpose of relentlessly punishing a whistleblower. Furthermore, my case is one that sends a most chilling message to other would-be whistleblowers: not only can you lose your job, but also your very freedom.

The government made my cooperation with official investigations a criminal act. It is now apparently a federal crime to report illegalities, malfeasance, fraud, waste and abuse perpetrated by our own government. The government is making whistleblowing a crime. They are making dissent a crime, especially when it embarrasses the government and calls the government to account. What is the difference between my situation and that of the Chinese artist who was detained when trying to leave his country because Chinese authorities deemed him a threat to national security?

The fact remains that the heart of my case rests directly on whistleblowing and First Amendment activities involving issues of significant and even grave concern in terms of government illegalities, contract and program malfeasance, as well as fraud, waste and abuse, protected by the Constitution, case law and statutes. And yet the government is censoring and criminally prosecuting protected communications I made in furtherance of government investigations, and doing so under the Espionage act. Espionage is the last thing my whistleblowing and First Amendment activities and actions were all about. This has become the specter of a truly Orwellian world where whistleblowing has become espionage.,

As a student of history, Drake is well aware of the nation's constant tension between authority and freedom. President Thomas Jefferson, the great free press advocate, had the Courant's two owners indicted and convicted on seditious libel felony charges for their newspaper comment criticizing the president over the cost of the Louisiana Purchase. After Jefferson left office the Supreme Court voided the conviction 5-4 in the court's first press freedom case. The court ruled in 1812, six years after the original news article, that criminal convictions of Americans in the new country must be based on written law, not such a vague, unwritten concept as what prosecutors considered to be seditious libel.
I'll leave the last word to Drake, who knows many things, including what happened after the first Constitutional convention in 1787:
“Well, Doctor," a lady asked Benjamin Franklin afterward, "what have we got — a Republic or a Monarchy?”
 “A Republic, if you can keep it.”
 

 

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