Thomas Drake: Conscientious Objector in the “War on Terror”

The morning of September 11, 2001, led to radical changes in the national intelligence establishment as part of the so-called “War on Terror”. The infamous day in American history was also Thomas Drake’s first day as a National Security Agency (NSA) employee (Mayer 2011). Drake, then, bore firsthand witness to the drastic evolution in the NSA and the wider US military and intelligence agencies as part of the War on Terror. While post-9/11 changes – and concomitant adjusted legal frameworks – were meant to reorient federal agencies for better security of American citizens in the wake of national trauma, several of these changes troubled Thomas Drake, then an executive at the Agency.

Drake believed this new direction implemented by the NSA exceeded the exclusive agency mandate for foreign surveillance of communications established in 1951 (Drake 2011). More specifically, he believed the evolving War on Terror intelligence infrastructure was rife with wasteful spending, lack of accountability or oversight, but even worse, violated long-established agency guidelines and in some cases, breached the very foundational protections in the Bill of Rights of the US Constitution (Drake 2011). In turn, he raised these concerns to the NSA Special Counsel, the wider Department of Defense Inspector General (the Agency within which the NSA fits), a Congressional staffer affiliated with intelligence oversight committees, and finally, to reporters. Drake became what is known as a “whistleblower”, an essentially contested concept used to describe an individual who discloses secret information based on a reasonable belief of waste, fraud, abuse, or illegal actions of individuals in positions of power (Government Accountability Project 2013).

Drake divulged unclassified NSA information to a newspaper reporter based on the ethical principle of loyalty to the Constitution, the hallowed foundational document of the nation, as opposed to authoritative Executive Branch legal interpretations. While Drake’s challenge came to represent a wider rebuke of the War on Terror intelligence and security status quo infrastructure and operations, his foray as an NSA whistleblower is illustrative for several reasons. Drake’s case demonstrates the ethical dilemmas faced by whistleblowers, the legal frameworks to guide disclosure, the bureaucratic challenges in doing so, and the lack of protections and potential for a heavy government response.

Thomas Drake made his decision to disclose unclassified information on sound reasoning. In 2011 Drake claims he “heard more than rumblings” regarding “secret eavesdropping and data mining” of Americans at NSA (Drake 2011). Drake viewed both as beyond what the Fourth Amendment and Foreign Intelligence Surveillance Act allowed (Drake 2011). Most troubling for Drake, however, was the NSA’s disregard for cheaper alternative programs which would mask American identities in searches, and thus not only prevent wasteful spending on what he viewed as illegal programs but also maintain the protections afforded to Americans in the Constitution (Mayer 2011).

Drake responded with an ethical stance of loyalty importantly not to the NSA and officials, but to what he viewed as a superior allegiance to the US Constitution, despite signing a non-disclosure agreement. In a 2011 Washington Post op-ed, Drake claimed the “primacy” of his oath to defend the Constitution as the reasoning for his decision to disclose information. The implicit charge in such statements was the US government – and particularly the executive branch – exceeded the legality of their mandate in intelligence collection activities in the War on Terror. Yet it is easy to imagine a counterargument to label Drake as a traitor of the NSA, intelligence agencies, and executive branch. In fact, many in the government – and observers – labeled Drake as one among a handful of disgruntled NSA employees who backed a collection program titled ThinThread in a losing bureaucratic turf war with a rival program titled Trailblazer (Conan 2011). Accordingly, Drake’s decision was made to pursue avenues for disclosure to discredit the NSA and the supporters of the program.

Yet three crucial pieces of evidence add credibility to Drake’s rationale. First, the Trailblazer program was canceled four years after inception due to excessive cost – and thus lent credence to Drake’s claims of wasteful spending on the program (Silber and Messick 2011). Second, Drake’s approach was methodical as a whistleblower and largely in accordance with the government channels. He first vented his concerns within the NSA, then DOD, then congressional oversight committee personnel, and finally with reporters. Drake justified this final step as a last resort when following the prescribed channels “conflicted with the primacy” of his oath to defend the Constitution (Drake 2011). While in recent years, there is much contention over the precise definition of whistleblower, Drake’s efforts warrant the use of the term.

Under US statute, a whistleblower is an employee who reports internal challenges when he/she “reasonably believes” there is evidence of a “’violation of any law, rule, or regulation’ or evidences ‘gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety (Shimabakuro and Whitaker 2012, 16).’” As stated, Drake consulted with the NSA Special Counsel and then the General Inspector of the Department of Defense as part of both 9/11 and program reviews. It is worth noting, NSA employees “are not protected by the whistleblower statute” and any disclosures may not “be prohibited by law nor required to be kept secret by Executive Order” (Shimabukuro and Whitaker 2012, 16). Therefore, according to the 2012 Congressional Research Service report, Drake was correct to seek out Diane Roark, a staff member on the House Permanent Select Committee on Intelligence as a third step (Mayer 2011; Shimabukuro and Whitaker 2012, 16).

Third, and the most relevant detail to the US government’s reprisal charges against Drake, was his alleged arrangement with the Baltimore Sun reporter to refrain from the disclosure of any classified information. Instead, he ensured she drew only upon “unclassified/for official use only” documents (Mayer 2011). The combination of the above aspects and Drake’s lifetime of service in the Air Force and to the intelligence community demonstrated commitment to his country and largely dampened arguments against his credibility or decisions to disclose unclassified information under the First Amendment freedom of speech.

Such revelations were critical in light of the US Government’s heavy-handed response to his actions. In 2010, the Department of Justice issued indictments on ten felony counts, including one under the 1917 Espionage Act. The response entailed a two-year interlude between the time when Drake’s house was raided by FBI officials and when the indictments were issued, a situation the judge in the case would later refer to as “unconscionable”. Drake eventually pleaded guilty to a misdemeanor charge of misuse of the government computer system and was sentenced to a year of community service (Drake 2011).

The government’s handling of the case – through the Department of Justice (DOJ) – was a case study in mismanagement. The DOJ’s inflated charges, problematic efforts to make an “example” of Drake, and the eventual outcome of the case undermined the credibility and integrity of the DOJ. By invoking the Espionage Act, the government presumably hoped to garner a plea deal, but Drake’s public defender lawyers called what seemed to be the DOJ’s bluff. Of course, the bluff rested on the false premise that Drake disclosed classified information to a reporter. This critical detail doomed the fate of the case.

The fundamental lessons for managers to be taken away from this case were threefold. First, and perhaps most important, only pursue legal means when certain of the basis for a legal case. This same lesson could similarly apply to disciplinary actions: to do so requires certainty and availability of the evidence. Second, managers must ensure outlets are available to listen to employee complaints and voices. On a small scale, the outlet could be as simple as a suggestion/complaint box or email address, but on a larger scale – and particularly in situations of government institutions – as much transparency and clarity as possible are useful to ensure the trust of employees. For instance, would Drake have gone so far as to disclose information to a reporter if the Special Counsel had channeled his concerns to individuals who may have been in a position to intervene? In this way, Drake’s situation was a case study in flawed internal bureaucratic channels for reporting concerns of individual employees.

Thomas Drake was vindicated by the outcome of the legal proceedings, as a recipient of the 2011 Ridenour Prize for Truth-Telling, and finally as a key voice in the discussions of Edward Snowden’s revelations and situation. His situation not only brought to light the issues in the War on Terror intelligence status quo, but his legal proceedings very clearly demonstrated the gross government mismanagement and overreach which he critiqued in the disclosures. Therefore, Drake should be afforded the respect and honors he deserves and his case should be reviewed for the very clear issues it raises.

References

Conan, N. (2001, May 17). Thomas Drake faces espionage charges (Interview with Jane Mayer). National Public Radio. Available from: http://www.npr.org/2011/05/17/136397548/thomas-drake-faces-espionage-charges

This interview with Jane Mayer fleshed out many of the arguments against Thomas Drake. This was the particular use of this article, however, given that it was an interview with Jane Mayer places it significantly in the supportive camp for Thomas Drake. Therefore, this article may be biased in favor of Drake’s position, yet the value of the interview should not be disregarded due to the dearth of critical positions taken on Drake’s situation.

Drake, T. (2011, August 25). Why are we subverting the Constitution in the name of security? The Washington Post. Available from: http://www.washingtonpost.com/opinions/why-are-we-subverting-the-constitution-in-the-name-of-security/2011/08/25/gIQANnrheJ_story.html

This article is one of a handful of Thomas Drake’s op-eds to appear in The Washington Post. This particular article offers direct insights into his perspective, rationale, and justification for his rebuke of the War on Terror intelligence status quo. In this article, he explicitly states his intent and reasoning, and for these reasons alone this article is useful for the analysis of his case.

Government Accountability Project website. What is a whistleblower? 2012. Available from: http://www.whistleblower.org/about/what-is-a-whistleblower

Lawyers from the Government Accountability Project assisted with the representation of Thomas Drake, and therefore this particular organization is more than likely to support him and his position. That said, the organization is one of the primary whistleblower advocates, and therefore their definition of a whistleblower is perhaps the broadest and most inclusive. For this reason, such a definition may have a broader resonance with the public than narrower, more specific definition found elsewhere.

Mayer, J. (2011, May 23). The secret sharer. The New Yorker. Available from: http://www.newyorker.com/reporting/2011/05/23/110523fa_fact_mayer?currentPage=all

For this piece, Jane Mayer conducted interviews with Bill Binney and Thomas Drake. As such, it clearly took the position in support of Drake, however, it was extremely valuable for the context it provided on Drake’s trial. This was in part due to the length; it is one of the more thorough investigations into his case and thoughtful attempts to draw comparisons to similar past cases and extract lessons.

Messick, G. and Silber, G. (Producers). (2011, May 22). US v. whistleblower Thomas Drake [Television Broadcast]. 60 Minutes. New York, NY: Central Broadcasting Service (CBS). Available from: http://www.cbsnews.com/videos/us-v-whistleblower-tom-drake/

Like Mayer’s piece, this is an extremely one-sided in support of Drake. On the other hand, it was an invaluable resource for context on the case and background on Drake’s situation. Unlike any other brief documentary, this short segment provided a synthesized version of Drake’s case, background on his situation, and offered insights into his perspective.

Shimabukuro, J.O. and Whitaker, L.P. (2012). Whistleblower protections under federal law: an overview. Congressional Research Service, 1-22. Available from: https://www.fas.org/sgp/crs/misc/R42727.pdf

This article served a crucial purpose of explaining the legal landscape of the whistleblower statues and protections – or lack thereof – for individuals, such as Thomas Drake. While the article was mainly oriented toward the Whistleblower Protection Act, it did provide insights into the legal protections provided for some whistleblowers. Also, the nature of the text demonstrated the contradictions in US whistleblower laws and protections.