Ex-N.S.A. Aide Gains Plea Deal in Leak Case; Setback to U.S.

By SCOTT SHANE

WASHINGTON — A former spy agency employee agreed late Thursday to plead guilty to a minor charge in a highly publicized leak prosecution, undercutting the Obama administration’s unusual campaign to prosecute government officials who disclose classified information to the press.

The National Security Agency official, Thomas A. Drake, had faced a possible 35 years in prison if convicted on felony charges under the Espionage Act. Instead, he agreed to admit to a misdemeanor of misusing the agency’s computer system by providing “official N.S.A. information” to an unauthorized person, a reporter for The Baltimore Sun. Prosecutors said in the written plea agreement that they would not oppose a sentence under which Mr. Drake would serve no time.

A formal plea hearing was set for Friday morning in Baltimore. The presiding judge, Richard D. Bennett of the district court, could impose a sentence of up to a year in prison. But legal experts said it would be highly unusual to impose a prison term when the Justice Department was not seeking incarceration.

The deal represented the almost complete collapse of the government’s effort to make an example of Mr. Drake, who was charged last year in a 10-count indictment that accused him of obstructing justice and lying to investigators. It is uncertain whether the outcome will influence the handling of three pending leak cases or others still under investigation.

The case against Mr. Drake is among five such prosecutions for disclosures to the news media brought since President Obama took office in 2009: one each against defendants from the National Security Agency, the C.I.A., the F.B.I., the military and the State Department. In the past, such prosecutions have been extremely rare — three or four in history, depending on how they are counted, and never more than one under any other president.

Officials say they have been prompted by a bipartisan belief in Congress and in both the George W. Bush and Obama administrations that leaks were getting out of hand.

The flurry of criminal cases has led to both praise and criticism for Mr. Obama, who entered office promising unprecedented transparency but in less than three years in office has far outdone the security-minded Bush administration in pursuing leaks. Some political analysts say Mr. Obama’s liberal credentials may give him political cover for the crackdown.

The Drake case was seen as a test of the tougher line against unauthorized disclosures. But news media coverage of the charges against Mr. Drake, 54, an introspective computer specialist, has highlighted his motivation for sharing information about N.S.A. technology with a reporter for The Baltimore Sun in 2006 and 2007: the agency was rejecting a $3 million in-house program called ThinThread in favor of a $1-billion-plus contractor-run program called Trailblazer. His supporters have portrayed him as a diligent public servant who was trying to save taxpayers’ money and strengthen national security, not damage it.

To make it easier to convict him, prosecutors shifted strategies last year and decided to charge him not with giving information to the Sun reporter, Siobhan Gorman, now at The Wall Street Journal, but with illegally holding classified documents at home.

But after Judge Bennett ruled last week that the government would have to show some of the allegedly classified material to the jury, prosecutors on Sunday withdrew four of the documents and redacted information from two others about “N.S.A.’s targeting of a particular telecommunications technology.”

That undermined much of the case, leading prosecutors to make a series of last-minute plea offers. Friends said Mr. Drake resisted during long hours of negotiations because he did not want to admit to a crime, however minor, that he believed he had not committed.

Mr. Drake’s lawyers, James Wyda and Deborah Boardman of the federal public defender’s office, declined to comment. But Jesselyn A. Radack, a lawyer for the nonprofit Government Accountability Project who had rallied support for Mr. Drake, hailed the outcome.

“This is a victory for national security whistle-blowers and against corruption inside the intelligence agencies, she said. “No public servant should face 35 years in prison for telling the truth.”

Matthew A. Miller, a spokesman for the Justice Department, declined to comment on the Drake case but said the prosecutions were based strictly on facts uncovered in investigations, some of which have lasted for several years.

“These are tough cases by their nature,” Mr. Miller said. “But it’s an important principle that people who have access to classified information follow the law and the agreements they have signed to protect that information.” He denied that the prosecutions were designed to deter legitimate whistle-blowing.

N.S.A., based at Fort Meade in Maryland, is the largest American intelligence agency and intercepts communications, including phone calls and e-mails. Employees have joked for decades about its hypersecrecy, saying the initials stand for “No Such Agency” or “Never Say Anything.”

Perhaps the most hotly debated of the other leak cases is the military prosecution of Pfc. Bradley E. Manning, accused of passing hundreds of thousands of military and State Department documents to WikiLeaks. In addition, the Justice Department is still investigating Julian Assange, the group’s founder, and his associates. There has never been a successful prosecution of a nongovernment employee for disseminating classified information, as opposed to leaking it. Press advocates generally believe that such a conviction would set a dangerous precedent for criminalizing the publication of government secrets.

In other cases, an F.B.I. translator, Shamai Leibowitz, was sentenced to 20 months last year for disclosing classified information to a blogger; Stephen Kim, a State Department expert on North Korea, is accused of disclosing secrets to Fox News; and Jeffrey A. Sterling, a former C.I.A. officer, is awaiting trial accused of sharing classified information on intelligence operations against Iran to James Risen for a 2006 book.

The Sterling case reflects the administration’s aggressive approach to leak cases. Last fall, prosecutors subpoenaed a lawyer for Mr. Sterling, Mark S. Zaid, to testify to a grand jury investigating his client, a move Mr. Zaid called “not improper but extraordinary.” Mr. Risen, a New York Times reporter who successfully fought a subpoena during the investigation of Mr. Sterling, has been subpoenaed again for the trial and is fighting the subpoena.

Beyond the prosecutions, the Obama administration has been entangled in other perplexing disputes over classified information. Last September, the Defense Department spent $47,300 to buy and destroy the entire first printing of an intelligence officer’s Afghanistan war memoir, saying it contained secrets.

In April, the Justice Department warned lawyers for Guantánamo detainees that they could not read or discuss publicly military documents published by WikiLeaks describing their clients, even though the documents are freely available on the Web.

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"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs

Baltimore Nonviolence Center

Friday, June 10, 2011