Wall Street Journal
June 10, 2011
by Gabriel Schoenfeld
Late Thursday afternoon, former National Security Agency official Thomas Andrews Drake reached a plea bargain with federal prosecutors, avoiding prosecution under the Espionage Act of 1917. Rather than face trial for 10 felony counts, he pleaded guilty to a lesser charge of misusing his government computer. Before the deal, Mr. Drake was set to go on trial Monday in a case that starkly illustrated the sometimes problematic nature of whistleblowing.
Mr. Drake joined our nation's secret code-breaking agency in 2001, after serving in the Air Force for a decade and then in the CIA. In the course of his duties at the NSA from 2001 to 2008, he encountered what he regarded as wrongdoing.
The NSA was planning to move forward with a highly classified communications-interception program called TrailBlazer. Mr. Drake thought it too costly and intrusive and favored an equally secret alternative called ThinThread.
In 2002, Mr. Drake first turned to his agency's inspector general. When that went nowhere, he appealed to a congressional intelligence committee. Stymied yet again, he began providing information to a reporter at the Baltimore Sun. (That reporter has since joined this newspaper.)
According to his spokesmen and attorneys, Mr. Drake is a classic whistleblower who faced unjust persecution. Many civil libertarians concur: Mr. Drake was recently awarded the Ridenhour Prize for Truth-Telling by the Nation Institute. The government, on the other hand, saw him as a criminal who violated promises to safeguard secrets.
The case is especially perplexing because for much of Mr. Drake's journey, he did exactly the right thing. In going to the NSA's inspector general and then to Congress, he was following procedures set out in the Intelligence Community Whistleblower Protection Act, which provides a way for employees to bring malefactions to light without compromising security.
But what happens when an employee then gets nowhere, as appears to have happened here? How can he remain within the law and still expose government misconduct?
One obvious issue is: Who gets to determine what constitutes government misconduct? Allegations of misconduct and actual misconduct are not always the same thing. If Mr. Drake favored ThinThread and his superiors chose Trailblazer instead, this may not constitute government wrongdoing. The dispute could easily be a choice between two alternatives, in which one side lost on the merits. If that's the case, leaking secret information would hardly seem justified.
But let's assume, for the sake of discussion, that Mr. Drake had learned of flatly illegal activity or massive waste and his valid complaints were ignored by both the inspector general and Congress. What then? At that point, he or anyone like him serving in government would have had to confront some hard choices.
A first path would be to keep quiet. But that would be personally ignominious, and the public would be ill-served. The only alternative, it seems at first glance, would be to do precisely what Mr. Drake was alleged to have done—convey information to the media. But given the confidentiality agreement he signed, that would be a violation of the law. In other words, Mr. Drake would be compelled to place himself between the anvil of observing the law and the hammer of doing the right thing. Leaking information in such a case is a species of civil disobedience and, as such, perhaps a noble act.
But, of course, civil disobedience in a democracy entails accepting the consequences of defying the law in defense of one's convictions. It is necessarily a public act. When Rosa Parks sat down in the front of the bus in 1955 and refused to move to the "colored" section, she did not wear a mask.
According to the indictment, however, Mr. Drake contacted the Baltimore Sun reporter using an alias. He subsequently asked her to establish a Hushmail account—an encrypted means of communicating based on a secure Canadian network—to use as a secret channel between them. He demanded from her an absolute promise of confidentiality. In other words, what we have here is anonymous leaking. It is an attempt to engage in civil disobedience without risking the consequences.
There was a better alternative, if not a good one. Mr. Drake had the choice of coming forward publicly and telling the world about the alleged NSA malfeasance. That would have been classic civil disobedience—and exemplary whistleblowing.
Gabriel Schoenfeld is a Senior Fellow at Hudson Institute.
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