National Security

Rejection of NSA whistleblower’s retaliation claim draws criticism

Thomas Drake, a former senior official at the NSA, seen at his home in Glenwood, Md. on Dec. 16, 2014, cooperated with a Pentagon inspector general inquiry in 2002 into allegations of waste and mismanagement of an NSA surveillance program known as Trailblazer.
Thomas Drake, a former senior official at the NSA, seen at his home in Glenwood, Md. on Dec. 16, 2014, cooperated with a Pentagon inspector general inquiry in 2002 into allegations of waste and mismanagement of an NSA surveillance program known as Trailblazer. McClatchy

Thomas Drake became a symbol of the dangers whistleblowers face when they help journalists and Congress investigate wrongdoing at intelligence agencies. He claims he was subjected to a decade of retaliation by the National Security Agency that culminated in his being charged with espionage.

But when the Pentagon Inspector General’s Office opened an inquiry into the former senior NSA official’s allegations of retaliation in 2012, it looked at only two of the 10 years detailed in his account, according to a recently released Pentagon summary of the probe, before finding no evidence of retaliation. That finding ended Drake’s four-year effort to return to government service.

Whistleblower advocates say Drake’s experience, spelled out in a document McClatchy obtained this month through the Freedom of Information Act, underscores the problem that intelligence and defense workers face in bringing malfeasance to the surface. The agencies that are supposed to crack down on retaliation are not up to the task, especially when the alleged wrongdoing involves classified information, they charge.

“This report epitomizes the utter lack of protection for national security whistleblowers,” said Jesselyn Radack, Drake’s attorney. “This is a pathetic, anemic excuse for an investigation.”

Although investigators appear to have rejected Drake’s claims almost a year ago, the Pentagon Inspector General’s Office did not publicly disclose its findings and hadn’t shared them even with Drake’s attorneys. McClatchy gave the attorneys a copy of the report.

The news of the rejection comes as McClatchy has learned that the same officials who are supposed to be helping whistleblowers such as Drake claim that they themselves have been forced to blow the whistle on their own office.

Multiple former and current officials from the Pentagon Inspector General’s Office have alleged to the Office of Special Counsel, the independent government agency that investigates whistleblower claims, that they’ve been retaliated against for objecting to how cases are handled. Drake’s case is one of several singled out for criticism.

“It illustrates the bleak landscape faced by whistleblowers and IG investigators,” said one of the several people who described the accusations but asked to remain anonymous because of the sensitivity of the matter. “The numerous allegations of reprisal and misconduct directed against senior IG officials call into question the efficacy of the whistleblower mission. If true, one can make the case that the office of inspector general has failed.”

Representatives of the Pentagon Inspector General’s Office and the Office of Special Counsel said they couldn’t comment because they didn’t discuss specific cases, as a matter of policy.

A chilling effect?

The NSA, meanwhile, has maintained that Drake wasn’t retaliated against. The spy agency cites the espionage prosecution as the reason for suspending his security clearance and other personnel actions, but it declined to comment further. At Drake’s sentencing hearing, where he was given probation on a misdemeanor charge, the judge criticized the government’s handling of Drake’s case, calling it “unprecedented” that a 10-count espionage indictment was dismissed just a few days before trial. The prosecutor conceded that evidence was “coming up short.”

Drake said the rejection of his claims by the inspector general’s office set a dangerous precedent for the oversight of intelligence agencies.

“What happened to me already had a chilling effect on whistleblowers relying on official channels,” he said. “This is just more evidence that the system is corrupted.”

Drake was one of the first officials to be targeted by the Obama administration in its controversial use of the Espionage Act against those it suspects of leaking classified information to the news media. Because of his case, Drake says, other intelligence officers will remain silent about abuse within their agencies when they should be blowing the whistle. Worse, he asserts, if they do cooperate with investigations or go public, they could be prosecuted.

In the latest leak prosecution, Jeffrey Sterling, a former CIA officer, was convicted of espionage for leaking to a New York Times reporter a classified operation to disrupt Iran’s nuclear program. Sterling faces decades in prison at his sentencing in April.

Former NSA contractor Edward Snowden cited Drake’s case as the reason he decided to leak to the media classified documents about the spy agency’s collection of Americans’ phone and email records instead of relying on the agency’s internal whistleblowing program. Snowden, who fled to Russia, has been indicted under the Espionage Act.

Although the inspector general’s office rejected Drake’s claims of retaliation, its report acknowledged that he’d cooperated as a whistleblower with its own investigation into the spy agency’s massive contracting debacles.

In fact, the report McClatchy obtained is the first official confirmation by the Pentagon Inspector General’s Office that Drake was an important anonymous source for its audit of the NSA’s troubled and bloated Trailblazer program. Trailblazer, intended to analyze data such as emails and phone calls, had been delayed years and had gone hundreds of millions of dollars over budget. It was eventually canceled.

Drake also helped auditors with their review of the similiar ThinThread program, which he and others told them performed better with fewer civil liberties concerns than Trailblazer.

The report says Drake “made numerous protected disclosures from January 2003 through December 2004 when he participated as a source of information in a DOD IG intelligence audit” into NSA’s contracts.

He also gave auditors emails and reports about the programs, and “assisted auditors in the identification of what complainant believed to be a gross waste of taxpayer dollars and NSA noncompliance with financial record-keeping and congressional requirements,” the report says.

“Complainant provided valuable insight that enabled DOD IG to obtain information not readily provided” by the NSA, it says.

The inspector general’s findings

The Pentagon Inspector General’s Office concluded that Drake’s disclosures meant he qualified as a whistleblower under the law, but said it didn’t find any evidence that NSA officials had retaliated against Drake as a result.

Drake’s disclosures were protected under whistleblower laws, but the Pentagon Inspector General’s Office says it didn’t find any evidence that NSA officials had retaliated against Drake as a result.

However, the office limited its inquiry to personnel actions taken against Drake only in 2007 and 2008, after the leak probe began. The eight-page report didn’t explain that decision, other than to say the earlier allegations of retaliation were “outside the time period considered practical for investigation.”

The officials involved in taking the personnel actions in 2007 and 2008 told the Pentagon Inspector General’s Office they were unaware of Drake’s cooperation with investigators and were acting only on information that he was under criminal investigation for leaking to the media – a valid reason for NSA to take action such as suspending his clearance in 2007.

Drake says the retaliation by the NSA began long before the prosecution and soon after he began cooperating in 2002 with congressional investigations into 9/11 intelligence failures.

A year later, he became an anonymous source for Pentagon inspector general investigators after three other NSA officials and a congressional staffer had secretly blown the whistle to the office about Trailblazer.

In 2005, Drake wrote NSA then-director Keith Alexander a letter detailing the allegations of contracting malfeasance and mentioned the inspector general inquiry. Alexander ended up forwarding it to NSA senior managers, who Drake believes included those who retaliated against him.

In early 2006, he was stripped of all his duties and given the new title of distributed workforce advocate, which Drake described as a “know-nothing placeholder position.”

Although he and others had been promised that the inspector general’s office would protect their identities, they were concerned that the NSA already knew of their cooperation as early as 2003.

The audit, a massive undertaking, had been set up in the NSA’s headquarters complex. Every time Drake left to talk with investigators, he said, he had to “badge out” of NSA facilities and “badge into” the office where the auditors were working for more than a year.

Case disputed internally

McClatchy has learned that senior officials within the inspector general’s office disagreed repeatedly about whether Drake and other NSA sources were being sufficiently protected as sources and whistleblowers during the audit.

The following account was described to McClatchy by people with knowledge of the matter, who asked for anonymity, saying they fear retaliation against themselves or others. The allegations have also been described to the Office of Special Counsel.

As early as 2004, the inspector general’s top lawyer, Henry Shelley, resisted calls for an investigation into whether the NSA was retaliating against Drake and three other NSA officials, the sources said.

When the inspector general office’s audit on the troubled Trailblazer program was issued that year, it not only confirmed many of the problems Drake raised but it also described fears of retaliation by anonymous NSA sources, including Drake. As a result, some officials within the office called for opening a retaliation investigation.

By 2006 – years after he first blew the whistle – Drake decided to help a Baltimore Sun reporter publicize the problems, he said. The article ended up detailing the Thinthread program, which Drake and others thought would have been a better choice for the NSA than Trailblazer.

The article hit as the NSA was reeling from an even more explosive leak. The New York Times had revealed that the Bush administration had been conducting a warrantless eavesdropping program. Although Drake had disclosed the program to Congress as a whistleblower, he wasn’t a source for the story.

Some senior officials inside the Pentagon Inspector General’s Office voiced concerns that their office had double-crossed Drake by suggesting to investigators that he might be a likely suspect in the hunt for the source of The New York Times story. The office would have been required to respond to an FBI request for information once Drake had been identified as a possible leaker to The Baltimore Sun, but some officials worried that the inspector general’s office had turned him in earlier while promising confidentiality as a protected source.

When the FBI raided Drake’s home, he said, the bulk of the NSA documents that were seized were records that the Pentagon Inspector General’s Office had urged him to keep for its investigation.

Later, Drake tried to seek evidence of his cooperation as a whistleblower to defend himself against the criminal leaking charges. Prosecutors told him the inspector general’s office had destroyed the records as a result of a routine policy.

McClatchy has since learned, however, that the destruction of the 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.

Depending on the timing of the destruction, such an action could violate evidence-retention rules that prosecutors and federal agents are required to follow. Destruction of evidence in criminal cases can be prosecuted as obstruction of justice.

“No one knows what was in the material,” said a person with knowledge of the matter. “It might have been exculpatory. What is known is IG officials obscured the fact that such evidence might have been destroyed improperly.”

“You could have a situation where the federal prosecutor was in good faith going forward with information from the IG that could have been challenged in regard to its veracity,” the person said.

Accusations that Drake had leaked classified information unraveled, however. He instead pleaded guilty to a misdemeanor charge of “exceeding authorized use of a government computer” and received one year of probation.

A national security lawyer who isn’t involved in the case but handles whistleblowing cases said the allegations described to McClatchy raised questions about whether the inspector general’s office had limited its investigation into Drake’s allegations to avoid examining its own actions. The inspector general’s office itself delayed the investigation for a year when Drake was being prosecuted.

“Many IG investigations cover conduct that lasted years,” said the lawyer, Kel McClanahan. “For DOD IG to say that it deliberately chose not to look into allegations from only nine years prior to the start of the investigation, over a year of which was due to its own misguided delay, really raises a suspicion of shenanigans, or at the very least willful negligence.”

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