About Thomas Drake: Mr. President, you need to read this

The New Yorker has another terrific piece by Jane Mayer. Among other things, Mayer previously wrote for the magazine about the billionaire Koch brothers (I linked to both her article and the Kochs' response). In her latest piece, she profiles "a former senior executive at the National Security Agency," Thomas Drake, who is accused by the Justice Department of having

... willfully retained top-secret defense documents that he had sworn an oath to protect, sneaking them out of the intelligence agency’s headquarters, at Fort Meade, Maryland, and taking them home, for the purpose of “unauthorized disclosure.” The aim of this scheme, the indictment says, was to leak government secrets to an unnamed newspaper reporter, who is identifiable as Siobhan Gorman, of the Baltimore Sun. Gorman wrote a prize-winning series of articles for the Sun about financial waste, bureaucratic dysfunction, and dubious legal practices in N.S.A. counterterrorism programs. Drake is also charged with obstructing justice and lying to federal law-enforcement agents.

You'll note that Drake isn't accused of leaking information to al-Qaeda, or to Iran. (Originally, Drake was accused of retaining classified documents, and of participating in a conspiracy to leak classified information.) Essentially, he is accused of the same thing Daniel Ellsberg was accused of during the Nixon administration: leaking inconvenient secrets to the public. In Drake's case, he provided evidence of the N.S.A.'s costly decision to farm out an information-trawling software project to the private sector, rather than adopting an in-house skunkworks project that already had demonstrated some success. The private-sector project never got off the ground, and the N.S.A. eventually killed it -- but only after $1.2 billion in taxpayer money had been spent on it.

From Mayer's article it's impossible to say whether those championing the failed project should have known better. I'll generously accept the possibility that this was a costly but innocent mistake. On the other hand, the prosecution of Drake and the threatened prosecution of others who, with Drake, protested the wasteful expenditures to the Pentagon's Inspector General, seems indefensible. Those quoted in favor of prosecution speak in vague generalities about the principle of never endangering "the troops" by leaking sensitive national-security information, but none of them is quoted explaining exactly how the documents Drake is alleged to have wrongfully handled and shared endangered anyone. Here's the most on-point remark Mayer quotes:

“This is not an issue of benign documents,” William M. Welch II, the senior litigation counsel who is prosecuting the case, argued at a hearing in March, 2010. The N.S.A., he went on, collects “intelligence for the soldier in the field. So when individuals go out and they harm that ability, our intelligence goes dark and our soldier in the field gets harmed.”

Let's remember, once again, that the project about which Drake is alleged to have leaked information never worked. No intelligence-gathering capability was adversely affected. Indeed, I would like to ask Welch how much more intelligence and analysis $1.2 billion, properly spent, could have garnered.

I'll call your first attempt to justify this prosecution a swing and a miss, Mr. Welch. Care to try again?

Mayer quotes observers who collectively make a powerful argument that the pursuit of this case sets a terrible precedent for our legal system.

Morton Halperin, of the Open Society Institute, says that the reduced charges make the prosecution even more outlandish: “If Drake is convicted, it means the Espionage Law is an Official Secrets Act.” Because reporters often retain unauthorized defense documents, Drake’s conviction would establish a legal precedent making it possible to prosecute journalists as spies. “It poses a grave threat to the mechanism by which we learn most of what the government does,” Halperin says.

And:

The Espionage Act has rarely been used to prosecute leakers and whistle-blowers. Drake’s case is only the fourth in which the act has been used to indict someone for mishandling classified material. “It was meant to deal with classic espionage, not publication,” Stephen Vladeck, a law professor at American University who is an expert on the statute, says.

And:

Mark Feldstein, a professor of media and public affairs at George Washington University, warns that, if whistle-blowers and other dissenters are singled out for prosecution, “this has gigantic repercussions. You choke off the information that the public needs to judge policy.”

One of the other criticisms of national-security prosecutions like Drake's is the inconsistency with which the law is applied.

In recent years, several top officials accused of similar misdeeds have not faced such serious charges. John Deutch, the former C.I.A. director, and Alberto Gonzales, the former Attorney General, both faced much less stringent punishment after taking classified documents home without authorization. In 2003, Sandy Berger, Clinton’s national-security adviser, smuggled classified documents out of a federal building, reportedly by hiding them in his pants. It was treated as a misdemeanor. His defense lawyer was Lanny Breuer—the official overseeing the prosecution of Drake.

Jack Goldsmith, a Harvard law professor who served in the Bush Justice Department, laments the lack of consistency in leak prosecutions. He notes that no investigations have been launched into the sourcing of Bob Woodward’s four most recent books, even though “they are filled with classified information that he could only have received from the top of the government.” Gabriel Schoenfeld, of the Hudson Institute, says, “The selectivity of the prosecutions here is nightmarish. It’s a broken system.”

Obama comes in for special criticism because so many had hopes he would change George W. Bush's obsession with perceived national-security threats. Many of Drake's problems, for instance, arose from the anger of Bush administration officials over the December 2005 revelations in the New York Times of the N.S.A.'s warrantless wiretapping program against U.S. citizens. The Bush administration was determined to discover who had leaked the information to the paper, and suspected Drake of being one of the leakers.

Drake himself was one of those who thought Obama would turn things around.

“I actually had hopes for Obama,” he said. He had not only expected the President to roll back the prosecutions launched by the Bush Administration; he had thought that Bush Administration officials would be investigated for overstepping the law in the “war on terror.”

“But power is incredibly destructive,” Drake said. “It’s a weird, pathological thing. I also think the intelligence community coöpted Obama, because he’s rather naïve about national security. He’s accepted the fear and secrecy. We’re in a scary space in this country.”

And speaking of that Times article:

In 2008, Thomas Tamm, a Justice Department lawyer, revealed that he was one of the people who leaked to the Times. He says of Obama, “It’s so disappointing from someone who was a constitutional-law professor, and who made all those campaign promises.”

The treatment of Tamm, by the way, shows how selective prosecution is.

The Justice Department recently confirmed that it won’t pursue charges against Tamm. Speaking before Congress, Attorney General Holder explained that “there is a balancing that has to be done . . . between what our national-security interests are and what might be gained by prosecuting a particular individual.”

President Obama, you need to end the Justice Department's prosecution of Thomas Drake. To pursue it would be a repudiation of your self-professed admiration of whistle-blowers. Some of us have cut you a lot of slack, permitting you to disappoint us on health-care reform, financial regulation, climate change legislation ... the list goes on. But if you carry on George W. Bush's shameful legacy of curtailing our civil liberties, we will consider you complicit with him.

How ironic, and tragic, it would be if the nation's first African-American president were remembered not for advancing the country further toward a freer future for all, but for overseeing “the bipartisan normalization and legitimization of a national-surveillance state,” as Yale law professor Jack Balkin puts it.

Are you going to start healing the wounds inflicted by the privacy-contemptuous Bush administration, Mr. President, or are you going to worsen the damage?