Thomas A. Drake, the former National Security Agency manager who is facing trial on Espionage Act charges in what appears to be a greatly weakened government case, has refused twice to accept the government’s offers of a plea bargain, according to people following the case.
Drake, 54, on Wednesday morning rejected prosecutors’ offers to plead guilty to a misdemeanor with no jail time — just a few days before the trial is set to begin Monday. He turned down another offer late Wednesday night, according to people who spoke on the condition of anonymity because they were not authorized to speak publicly on the case.
That prosecutors were willing to let him plead to a misdemeanor reflects the weakness of their case, which has in the past week been significantly weakened, experts say.
Drake has repeatedly told friends that he will never “plea bargain with the truth.”
Drake turned down a deal to plead guilty to unauthorized retention of classified documents. It was a deal similar to the one accepted in 2005 plea by former national security adviser Samuel R. “Sandy” Berger after he removed and shredded classified material relating to the Clinton administration’s record on terrorism from the National Archives.
“Why should you plead to something you didn’t do?” said Bill Binney, a friend and former colleague who, with Drake, tried to raise concerns about what they saw NSA corruption and constitutional violations. “That’s the whole point. People of character don’t do that.”
Prosecutors informed U.S. District Judge Richard Bennett this week that they would withhold documents they had planned to introduce as evidence to keep from disclosing sensitive technology. Drake is charged with unlawfully retaining classified information at a time when he was in touch with a Baltimore Sun reporter who later chronicled mismanagement at the agency.
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 might complicate prosecutors’ efforts to prove a violation of the act, suggesting that the government might 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.”
Aftergood added, “What’s striking is that the government now seems more eager to reach some kind of resolution... It seems like right now the prosecutors are doing more pleading than Mr. Drake is.”
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.
Read more at The Washington Post.