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Plea in NSA Leak Case Seen as Setback for Government, Prosecutors

June 10, 2011 at 12:00 AM EDT
A former National Security Agency official pleaded guilty Friday to misdemeanor unauthorized use of a government computer after being charged with 10 felony counts related to leaking classified information. Ray Suarez and Politico's Josh Gerstein discuss what the deal means for President Obama's efforts to crack down on leaks.

MARGARET WARNER: Finally tonight, what had been billed as a major national security leaks case ends up as a plea bargain.

Ray Suarez has that story.

RAY SUAREZ: A former top official with the National Security Agency pleaded guilty today to unauthorized use of a government computer. That’s a misdemeanor.

Thomas Drake had been charged with 10 felony counts related to the leaking of classified information. The government alleged he was a source for a series of Baltimore Sun stories in 2006 and 2007 looking at the NSA.

To walk us through the plea and what it means for the Obama administration’s efforts to crack down on leaks, we’re joined by Josh Gerstein, who has been reporting the story for Politico and was in the courtroom today.

And Thomas Drake was charged, Josh, with some — with some very serious crimes, ones that threatened some very severe penalties. What did the government say he had leaked, and what information was he accused of having taken out of the NSA?

JOSH GERSTEIN, Politico: Well, he had access to a lot of very sensitive information at the NSA as a senior manager there.

And he was believe by the government to have leaked information to a reporter at The Baltimore Sun about a dispute that was going on within the agency over two different types of essentially surveillance systems, one that was sort of homegrown within the agency, and another much larger, more expensive one that contractors were looking to sell the agency.

He thought they should stick with the cheaper in-house version, and others at the agency decided to go in another direction. He essentially disclosed — or the government claims he disclosed information about that dispute to the reporter.

RAY SUAREZ: In the end, he pleaded to a reduced charge of exceeding authorized access to a government computer system.

In your story for Politico, you call it a humiliating turn of events for the government. Why?

JOSH GERSTEIN: Well, it seems like the government really lost its nerve here at the last minute.

The trial was supposed to open on Monday. There had been a lot of pretrial action going back and forth for the last year. As you mentioned, there were 10 felony counts going into this that could have led to Drake spending literally dozens of years in prison, perhaps the rest of his natural life.

And then, at the last minute, you have this misdemeanor plea offered to him that will probably result in him getting little or even no jail time. The government clearly didn’t want to go forward with the case

They say they were concerned, because of the judge’s rulings, that classified information would spill out into the public domain at this trial.

I’m not sure that that can explain the entirety of that discrepancy between dozens of years and the potential of no jail time for a mere misdemeanor.

RAY SUAREZ: Well they could have anticipated that when they laid these charges on, couldn’t they?

JOSH GERSTEIN: Sure. I understand, from former prosecutors, that they do game these things out, what classified information will come out at trial or what a judge may order to be released.

And it’s also worth noting that they’re — the law says that the Justice Department had the right to appeal those rulings by the judge immediately before the trial and get a ruling, if they thought they were erroneous. They decided not to do that, and instead to agree to this misdemeanor plea.

RAY SUAREZ: When it comes to prosecuting leak cases, when it comes to internally policing these kinds of matters, has there been a change in approach from the Bush administration to the Obama administration?

JOSH GERSTEIN: Well, there are certainly a lot of these prosecutions going on right now. By many counts, there are about five that are either ongoing right now or have taken place since the Obama administration came into office.

It’s hard to know in these, what we call Espionage Act leak prosecutions, whether the Obama administration should really be thought to be responsible for them in a strict sense, in that a lot of the matters are left over from the Bush administration from the post-9/11 concern about classified information, about the threat of terrorism and so forth.

So, it’s not clear whether this is entirely an initiative on the part of the Obama administration or if Obama officials are basically acquiescing in cases that got started under the previous administration.

RAY SUAREZ: Drake was charged under the Espionage Act…


RAY SUAREZ: … the same act that Aldrich Ames and other famous spies have been charged under.

But was he really more of a whistle-blower than a spy?

JOSH GERSTEIN: Well, certainly, he and his allies contend that he was really a whistle-blower. He was trying to alert first folks inside the government, in Congress, in inspector general’s offices in the government to what he considered mismanagement or waste at the NSA.

There is no evidence that he was trying to hurt the United States or was angry at the country or anything along those lines. So, a lot of folks claim that using the Espionage Act, which can cause — carry a penalty of up to 10 years in prison for this sort of a violation for each count, was essentially overkill.

Other senior officials who have mishandled classified information intentionally have basically gotten a slap on the wrist.

RAY SUAREZ: The case is now in the hands of the judge. When will Thomas Drake and the U.S. government learn his fate?

JOSH GERSTEIN: Well, the middle of next month, in July, there is a sentencing set. He could theoretically get up to a year in prison, but prosecutors have agreed essentially not to seek a prison sentence. So, most folks think it’s likely that the result will be him being essentially released on probation.

RAY SUAREZ: Josh Gerstein of Politico, thanks for joining us.