By Greg Miller, Spencer S. Hsu and Ellen Nakashima
Washington Post Staff Writers
Friday, April 16, 2010; A01
The indictment of a former U.S. intelligence official accused of leaking secrets to the media marks an attempt by the Obama administration to disrupt a type of transaction that has persisted for decades in Washington, routinely triggering criminal referrals but rarely ending up in court.
The case disclosed Thursday involves a former senior executive at the nation's most secretive spy service. He has been charged with 10 felony counts of mishandling classified information from the National Security Agency and trying to obstruct authorities' investigation of his alleged actions.
Thomas A. Drake, 52, has not been accused of sharing the most sensitive of the NSA's secrets: the means it uses to intercept e-mails and phone calls around the world, or the tools it employs to crack adversaries' codes. Instead, Drake appears to have provided a steady stream of documents and information to a Baltimore Sun reporter whose work exposed NSA system failures and mismanaged programs.
Drake's lawyer said Thursday that his client had cooperated with authorities but would now mount a vigorous defense against the charges.
Prosecutions -- let alone convictions -- of leaks cases have been rare. Many result in efforts to compel journalists to reveal their sources, but in this case the government appears to have identified an alleged leaker directly.
Federal prosecutors dropped charges last year against two former lobbyists for a pro-Israeli advocacy group accused of conspiring to obtain classified information on al-Qaeda and Iraq and provide it to news organizations, including The Washington Post. That effort, launched during the Bush administration, included allegations of espionage, a charge prosecutors have not made against Drake.
The most prominent case in recent years, involving I. Lewis "Scooter" Libby, the former chief of staff to Vice President Richard B. Cheney, showed the flip side of the issue -- instances in which senior government officials sanction leaks to advance their political aims. Libby was convicted of perjury and obstruction of justice after being accused of providing secret information about Iraq to a reporter.
In its indictment of Drake, the Justice Department portrayed him as a longtime consultant and executive at the world's premier code-breaking agency who nevertheless relied on relatively unsophisticated methods to give away NSA secrets. Those methods allegedly included copying and pasting documents in order to remove classification markings, as well as using a widely available encrypted e-mail service.
Drake "exchanged hundreds of e-mails" and met with a reporter, whom the indictment did not name. Drake also "reviewed, commented on, and edited . . . final drafts" of the reporter's articles, according to the indictment. It accused Drake of shredding documents and wiping computer hard drives when he suspected authorities were on his trail.
The case could create new tensions between the government and the media, putting pressure on reporters and the sources they rely on in some cases to highlight government waste and abuse.
Bruce W. Sanford, a First Amendment lawyer in Washington, called the Justice Department's explanation of the case "prosecutorial pabulum." He said that "leak prosecutions against people trying to improve national security are absurd. What is not at stake here are sources and methods of intelligence-gathering. . . . This fellow is clearly a whistle-blower."
The indictment could also discourage government employees from speaking to reporters and would-be whistle-blowers from coming forward, said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "I do think there are some people who will be enormously 'chilled,' " she said.
But U.S. intelligence officials have expressed growing concern that the release of unauthorized information was undermining national security, and that not prosecuting such actions has left the impression that those who leak will not pay a price.
"Our national security demands that the sort of conduct alleged here . . . be prosecuted and prosecuted vigorously," Assistant Attorney General Lanny A. Breuer said in a statement.
Drake could not be reached to comment. James Wyda, the federal public defender in Baltimore assigned to the case, said Drake had been "extraordinarily cooperative" with authorities and had held important government jobs over many years.
"Mr. Drake loves his country," Wyda said. "He's very disappointed that criminal charges were brought and we were not able to resolve this matter in another way."
Drake faces 10 felony charges, each carrying a maximum penalty of five to 20 years in prison and up to a $250,000 fine.
Drake had served as a contractor to the NSA before becoming a full-time employee in 2001 assigned to its signals intelligence and engineering directorates, according to the indictment. It said his contacts with the reporter began in late 2005 or early 2006.
The contacts were encouraged by a former congressional aide with whom Drake had a self-described "close, emotional friendship," according to the document. The former aide had retired from congressional staff in 2002 and was not identified.
Drake subsequently set up an account with Hushmail, a secure online e-mail service based in Vancouver, B.C., that offers what it calls "near military grade" encryption, and encouraged the reporter to do the same, according to the indictment.
Hushmail Director Steven Youngman said the firm will provide the encrypted content of e-mails and other information to law enforcement authorities when they produce a court order.
Speculation about the identity of the reporter focused on Siobhan Gorman, an intelligence correspondent then working for the Baltimore Sun who has since joined the Wall Street Journal. Gorman was among a small circle of journalists who covered the NSA closely, publishing a string of stories in 2006 and 2007 that spotlighted management lapses, technical problems and budget shortfalls at an agency known for its aversion to the press.
Her stories included references to sources who appear to match prosecutors' descriptions. A Jan. 17, 2007, story on budget woes at the NSA, for example, refers to "a senior intelligence official speaking on condition of anonymity" and "a former congressional aide" in successive paragraphs.
Drake's security clearance was suspended in 2007, and he resigned from the NSA a year later "in lieu of termination," the indictment said.
It was unclear whether Gorman had cooperated, or been asked to do so, in the case against Drake. Editors at the Sun referred calls to a spokeswoman, who declined to comment, as did a spokesman for the Wall Street Journal.
When the indictment was announced, Gorman was covering the Senate confirmation hearing of Lt. Gen. Keith B. Alexander, the NSA director, who is President Obama's pick to head the military's new computer security and cyberwar command. She declined to comment when approached by a reporter from The Post.
U.S. intelligence agencies are required to notify the Justice Department when classified material appears in the press. Former U.S. officials said such referrals have increased in recent years.
"There were scores, if not hundreds, of such reports sent over to Justice" each year from the NSA and CIA, said a former high-ranking U.S. intelligence official. "They generally ended up not getting anywhere near a courtroom."
Staff writers Carol D. Leonnig and Howard Kurtz and staff researcher Julie Tate contributed to this report.