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OpEdNews Op Eds    H2'ed 3/13/12

UPDATE: I was First Whistleblower Prosecuted Under the Espionage Act in Recent Government Rampage

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Crossposted from The Daily Kos.

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On Saturday the 10th of March 2012, Matthew Miller, the ex-Director of the Office of Public Affairs for the Justice Department and Attorney General Holder's former spokesperson, posted an article on the Daily Beast asserting that the Obama Administration is right to go after 'leakers' who are not whistleblowers. 

The difference between a leaker and a whistle-blower is important. Leaks of classified information can endanger American soldiers and intelligence officers and expose sensitive national-security programs to our enemies. Whistle-blowers expose violations of law, abuse of authority, or a substantial and specific threat to public health or safety.

I agree that the difference is important. As the former NSA senior executive who blew the whistle on massive fraud, waste, abuse and illegalities at NSA, I find Miller's statement eerily Orwellian in its duplicity, doublespeak and deceit regarding the truth of the matter. But exposing violations of law and abuse of authority put me (and several other whistleblowers) in the cross hairs of a multi-year, multi-million dollar ''leak"   investigation that led to a 10 felony count criminal indictment issued against me.

The government even tried to eliminate as admissible or relevant in my case anything related to my whistleblowing before the Court. 

During the pendency of my trial, before the government's Espionage Act case against me collapsed in spectacular fashion and all 10 felony counts were dropped - the chief prosecutor, William Welch, even publicly stated for the record that my alleged activity had endangered the lives of soldiers. Nothing could be further from the truth. 

And I find the omission of any reference to my case by Miller in his article quite revealing. 

He goes on to state: 

Furthermore, the Justice Department has the ability to utilize prosecutorial discretion in cases that involve true whistle-blowing. Leaks exposed the previous administration's warrantless-wiretapping program, which Bush officials argued was an essential national-security tool but many legal scholars saw as a clear violation of law. To this day, no one has been prosecuted for those disclosures, despite one former official confessing on the cover of Newsweek that he was a source.


I was prosecuted for making those disclosures both within and without the government! 

They chose to criminalize my exposure and disclosure of government wrongdoing and illegalities (including the NSA completing violating the 4th Amendment when it turned the US into the equivalent of a foreign nation through blanket driftnet electronic surveillance), and then turned the truth of my whistleblowing into treason and marked me as a traitor to my country. 

However, the last time I checked the Administration is not above the law and the unitary executive theory of national security in conducting itself behind the veil of secrecy through the illegal abuse of power and policy does not trump the Constitution. 

And yet in a followup to Josh Gerstein's Politico blog, Miller reluctantly acknowledges that my case was different.  

I think the Drake case raises much harder questions. Unlike the other cases I wrote about, in which I don't believe legitimate claims of whistleblowing can be made, Drake did seem to be trying to expose actual government waste.   I think the outcome of the case probably shows that it was an ill-considered choice for prosecution, given some of the mitigating factors.   But the solution in such cases can't be to allow anyone to leak classified secrets to the press.   If so, any employee who believes they have a claim to waste, fraud or abuse could expose any national security program, no matter how important the program and no matter how frivolous the claim.


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From 2001 through 2008, Mr. Drake was a senior executive at the National Security Agency (NSA) and served in various technical management and leadership capacities. While there he became a material witness and whistleblower for two 9/11 congressional investigations and a Department of Defense Inspector General audit of a failed multi-billion dollar flagship program called TRAILBLAZER as well as an operationally ready, highly innovative, revolutionary and breakthrough multi-million dollar intelligence data collection, processing and analysis system called THINTHREAD -- that was specifically designed to handle the massive data volumes and information flows of the Digital Age, with built-in 4th Amendment and privacy protection safeguards for U.S. Persons, but rejected by NSA.  His recently concluded legal ordeal involving a targeted, multi-year, many millions of dollars federal government investigation and prosecution of him, ended when the Department of Justice dropped all of the felony charges in the indictment against him (including the Espionage Act) in a plea agreement to a minor misdemeanor. His case lies at the nexus of overreaching national security, the 1st and 4th Amendments, wrongdoing and illegalties cloaked in secrecy, overclassification, a unitary executive branch state secrets privilege hiding 'off the books' domestic warrantless wiretapping, electronic surveillance, eavesdropping and data mining, freedom of thought and association, as well as the alarming erosion of our civil liberties and the enshrined rights in the Constitution. Mr. Drake was the recipient of the 2011 Ridenhour Truth-Telling Prize and currently works as an Expert at an Apple Retail Store in the greater D.C. area.
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