A federal judge is investigating allegations that the government may have improperly destroyed documents during the high-profile media leak investigation of National Security Agency whistleblower Thomas Drake.
U.S. Magistrate Judge Stephanie Gallagher’s inquiry was launched after Drake's lawyers in April accused the Pentagon inspector general’s office of destroying possible evidence during Drake’s criminal prosecution, which ended almost four years ago, McClatchy has learned.
In a May 13 letter, Gallagher told Justice Department lawyers that the judge who had presided over the case asked her to evaluate the allegations from Drake’s lawyers “for further investigation and to make recommendations as to whether any action by the court is warranted or appropriate.”
The allegations raise new questions about a prosecution that had been excoriated by the presiding judge after the Justice Department’s case against Drake unraveled and resulted in the former senior NSA official pleading guilty to a misdemeanor charge.
As a result of the controversial prosecution, Drake became a symbol of the dangers whistleblowers can face when they help the media, Congress and government watchdogs investigate wrongdoing at intelligence agencies.
The inquiry also comes as Congress voted Tuesday to scale back the NSA's sweeping surveillance powers and after a key federal appeals court ruled the law does not authorize the mass collection of U.S. email and phone records.
During his recent campaign to prevent the reauthorization of the NSA’s collection powers, Republican Sen. Rand Paul of Kentucky praised NSA whistleblowers like Drake for exposing flaws in the spy agency’s surveillance programs.
While the Pentagon inspector general’s office concluded last year that Drake had made protected disclosures to its office as a whistleblower, it rejected his claims that the NSA had retaliated against him. The inspector general’s office also looked at only two of the 10 years of alleged retaliation detailed in his account, concluding they were “outside the time period considered practical for investigation.”
Jesselyn Radack, Drake’s current lawyer, declined to say what she expected from the judge’s inquiry, which McClatchy learned about independently. She said that her client is “grateful that the court sees this as serious enough to look into.”
“The fact that there is a court-ordered investigation is a partial vindication,” said Radack, who is national security director with the Government Accountability Project, a whistleblower advocacy group. “As (the presiding) judge noted, Tom Drake has been through years of hell because of this prosecution even though this case collapsed in a spectacular fashion.”
Drake’s former defense lawyer and the two judges did not return calls. The Justice Department and the Pentagon inspector general’s office declined to comment.
Destruction of evidence in criminal cases can violate evidence retention rules that prosecutors and federal agents are required to follow and can lead to sanctions against them.
Even if the allegations are proven, it’s unclear what action, if any, the magistrate judge could order, given that Drake’s criminal case is over.
The magistrate’s letter has not been made public in court records, possibly to give the government time to weigh in. Gallagher asked the Justice Department to respond before June 12.
Beginning in 2002 and 2003, Drake joined a group of whistleblowers who cooperated with congressional and Pentagon inspector general inquiries scrutinizing the NSA’s surveillance programs.
Yet the Obama administration targeted him and other U.S. intelligence officials under the Espionage Act for leaking classified information to journalists who were looking into alleged wrongdoing and abuse by spy agencies.
When the prosecution’s case fell apart, U.S. District Court Judge Richard Bennett, who presided over the case, called the Justice Department’s years-long pursuit of Drake “unconscionable,” adding that it didn’t “pass the smell test.” Bennett, a former U.S. attorney in Maryland, sentenced Drake to community service and probation.
Radack told Bennett in an April 17 letter that she heard of the document destruction charges this year while representing Drake in his whistleblower complaint accusing the NSA of retaliating against him.
The government’s handling of documents first became an issue during the evidence-gathering stage of Drake’s prosecution, when his criminal defense lawyers sought records related to his whistleblower cooperation with the Pentagon inspector general’s office in order to defend him.
At the time, the Justice Department told the judge that most of the “hard copy documents” related to the Pentagon inspector general’s office audit that Drake had cooperated with were destroyed “pursuant to a standard document destruction policy” and couldn’t be provided to the defense.
Radack told Bennett that she believed otherwise.
“I investigated the destruction of documents and learned that the (the Pentagon inspector general’s office) does not have a document destruction policy,” she wrote in her letter to the judge. “Rather, (the inspector general’s office) has a Records Management Program, which dictated that the documents should have been retained.”
Radack, who was not Drake’s original criminal defense lawyer, wrote that she learned of allegations that the Pentagon inspector general office’s documents “were destroyed outside of normal policy and to impede a judicial process, specifically, the criminal case against Mr. Drake.”
She did not accuse prosecutors of misconduct in the letter, but she asked the judge to refer the matter to the “appropriate authority” for investigation because the Justice Department’s account to the court “was not accurate.”
Radack has become well known for her stance against the Obama administration’s crackdown on media leaks and for her representation of Edward Snowden, the former NSA contractor who leaked classified documents about the spy agency’s surveillance to the media.
McClatchy reported earlier that the document destruction allegations arose out of a series of still-secret complaints filed by multiple former and current officials from the Pentagon inspector general’s office about their office’s handling of whistleblower cases, including Drake’s.
The group alleged to the Office of Special Counsel, a separate agency that investigates whistleblower complaints, that senior officials with the inspector general’s office had attempted to water down or change findings in investigations because of fear of political controversy.
The officials have asked the Office of Special Counsel for anonymity, citing fear of retaliation, and the counsel’s office has refused to comment on the complaints. The Pentagon inspector general’s office has declined to comment as well.
Radack told the judge that she learned that the destruction of Drake’s records prompted a debate inside the Pentagon inspector general’s office over whether they’d been improperly destroyed to cover up the office’s role in the leak investigation.
Officials within the inspector general’s office disagreed about whether Drake and other NSA sources were being sufficiently protected as sources and whistleblowers during the audit, she said.
Drake described his complaint with the Pentagon inspector general’s office as his last-ditch effort to hold the NSA accountable for what he alleges is illegal retaliation against whistleblowers like him.
Drake said he emptied all his bank accounts, spent his retirement, and was declared indigent before the court as the Justice Department prosecuted him. He added he was then left unemployable by the federal government after the NSA suspended his clearance. He now works at an Apple Store in Maryland.