The government settles with Drake

The government has done a not entirely bad thing, but for entirely the wrong reasons.

The Justice Department has reached a plea agreement with former N.S.A. official Thomas Drake. Drake provided documents to a reporter about an N.S.A. program he and others believed was a waste of $1.2 billion.

The judge in the case ruled that the government would have to show some of the documents to the jury. Evidently the government felt the documents were too sensitive to be shown, and without those documents prosecutors deemed it necessary to seek a plea to lesser charges. The end result is that Drake will plead guilty to a misdemeanor charge of "misusing the agency’s computer system by providing 'official N.S.A. information' to an unauthorized person." Although the judge could impose a prison term of up to a year, he is unlikely to do so since the Justice Department is not seeking prison time.

The Times account claims, "Friends said Mr. Drake resisted during long hours of negotiations because he did not want to admit to a crime, however minor, that he believed he had not committed." However, there is no explanation as to why he eventually capitulated.

The Times article does a poor job of providing sufficient background information on Drake's actions and the highly political reasons he was prosecuted. The New Yorker article by Jane Meyer remains the best piece on the Drake case.

Although I'm happy Drake will not suffer the most severe penalties the government first sought (the original charges could have resulted in 35 years of prison time), I'm unhappy that he had to cop a plea. As I wrote last month, this appears to have been a badly considered attempt to intimidate others who might be thinking about exposing government wastefulness. The only proper outcome would have been for the government to drop the case altogether. Instead, what we've seen is, in the words of Yale law professor Jack Balkin, “the bipartisan normalization and legitimization of a national-surveillance state.”

If Drake is guilty of misusing a computer system, the Obama administration (in collusion with the George W. Bush administration) is guilty of misusing the legal system.