The government has used the 1917 Espionage Act, which has been criticized as vague and overbroad, to charge Drake, one of five such cases against alleged leakers under the Obama administration. Drake is not accused of spying, but the law’s provisions criminalize the unauthorized retention of classified material. The trial is set to begin Monday.
The government’s decision to withhold certain documents may complicate prosecutors’ efforts to prove a violation of the act, suggesting that the government may have overreached in using an espionage law to target a suspected leaker.
“By withdrawing several of the exhibits, at least a couple of the counts against Drake will almost certainly need to be dismissed,” said Steven Aftergood, a national security expert with the Federation of American Scientists who has followed the case closely since Drake was indicted last year. “It changes the whole dynamic of the prosecution and may even set the stage for settlement or dismissal.”
Prosecutors “gambled that the court would permit them to submit unclassified substitutions for this information,” Aftergood said. “The case isn’t over, but this is clearly a setback for the prosecution.”
Transparency activists and media experts warn that such prosecutions could stanch the flow of information the public needs to judge policy, and George W. Bush administration officials see the prosecutions as selective — ignoring high-level officials who release sensitive information to advance their personal or policy agendas.
Justice Department spokesman Laura Sweeney declined to comment on the case.
Drake, 54, could face 35 years in prison if convicted of “willful retention of national defense information.” He is not charged with a leak.
Drake has said that he is a whistleblower who is facing a politically motivated reprisal for drawing attention to the NSA’s inefficiencies. “I will never plea-bargain with the truth,” he told friends last year.
Drake was a senior executive at the NSA — a “senior change leader” — who professed an ambition to change the agency’s insular culture. He became disillusioned with the agency’s handling of major technology programs and concerned that the NSA was needlessly violating Americans’ privacy through a massive surveillance program adopted after the Sept. 11, 2001, terrorist attacks. He raised concerns with officials and the inspector general, and later with the reporter, before leaving the agency in 2008.