Washington Post: A Case That Could Be Overkill Against a Whistleblower

TO SOME PEOPLE, Thomas A. Drake is a villain, a man who broke his pledge to protect national security secrets. To others, he is a whistleblower and a hero.

Most, however, would not confuse him for a spy.

Yet Mr. Drake will go on trial in a Maryland federal court this month on multiple counts of violating the Espionage Act, a broad and vague World War I-era law meant to punish those who turn over national security information to the enemy. He could face decades behind bars.

Mr. Drake, a former employee of the National Security Agency, did not hand information to al-Qaeda. His alleged crime: communicating with a Baltimore Sun reporter about an NSA surveillance program that he believed had been grossly mismanaged and was wasting billions of taxpayer dollars. His defenders say that he tried to alert NSA higher-ups about the programs’ failings; he and other NSA employees also filed a complaint with the Defense Department inspector general. He turned to the press after these official avenues proved unfruitful. Mr. Drake has acknowledged the correspondence with the reporter but contends that he avoided divulging classified information.

The Post is not a disinterested party. The newspaper maintains an interest in obtaining information that sheds light on the inner workings of government, including its national security apparatus. But this page also recognizes the federal government’s right to take action against officials who breach confidentiality agreements, especially those that touch on national security.

The question here is whether the indictment and proposed punishment are proportionate to the alleged infraction. At times, revocation of security clearances may be the most appropriate action; dismissal and prosecution may be called for when more serious violations are confirmed.

Mr. Drake’s prosecution smacks of overkill and could scare others with legitimate concerns about government programs from coming forward. For example, the Justice Department charged Mr. Drake under a section of the Espionage Act that deals with “retention of classified information” and carries a possible 10-year sentence. Mr. Drake was indicted on five such counts in April 2010. Yet there are other statutes that deal with the mishandling or improper retention of classified information that do not involve espionage charges. These provisions seem to more accurately reflect the acts that Mr. Drake is accused of; they also carry far shorter sentences.