Whistleblowers Charged Under the Espionage Act

Thomas Drake is a former senior executive at the NSA who was charged under the Espionage Act for the unauthorized “willful retention” of classified documents. Drake’s problems with the agency started when he found himself on the minority side of a debate about two new tools for collecting intelligence from digital sources. One program, called Trailblazer, was being built by an outside contractor for $1.2 billion; the other, known as ThinThread, was created in-house by a legendary crypto-mathematician named Bill Binney for about $3 million.

Then, in the wake of the attacks of Sept. 11 2001, the NSA, with the approval of the Bush administration, began the illegal warrantless surveillance of American citizens. This did not sit well with Drake, who says that during his time in the Air Force, where he also did surveillance work, the imperative to protect American’s privacy was drilled into him. “If you accidentally intercepted U.S. persons, there were special procedures to expunge it.”

“I was faced with a crisis of conscience,” Drake told The New Yorker’s Jane Mayer. “What do I do — remain silent, and complicit, or go to the press?” As a father of five, one of whom has serious health problems, Drake concluded that he’d go to the press with his complaints about the NSA — but he’d only share unclassified information, thinking perhaps he’d lose he’s job but at least not end up in jail. So he leaked the story of ThinThread vs. Trailblazer — a simple story of government waste — to the Baltimore Sun. A few months later, the FBI appeared at his door. Drake at one point faced up to 35 years in prison for various charges, most of which were dropped. He eventually pleaded guilty to a misdemeanor for exceeding authorized use of a computer.

In 2010, Stephen Jin-Woo Kim, a specialist in nuclear proliferation who worked as a contractor for the State Department, pleaded not guilty to charges of leaking information about North Korea to Fox News. He was indicted by a Federal Grand Jury, but the case has not yet been brought to trial.

Fox journalist James Rosen, with whom Kim had been in touch in the past, reported in 2009 that North Korea would likely test another nuclear missile in reaction to a pending United Nations Security Council resolution condemning its nuclear tests. The Justice Department said Kim was Fox’s source.

Kim, who immigrated to the U.S. from South Korea when he was nine years old, told Bloomberg News that “to be accused of doing something against or harmful to U.S. national interest is something I can’t comprehend.” Kim’s lawyers said that Kim was being charged for participating in the type of exchange between experts and the press “that happen hundreds of times a day in Washington.”
“In its obsession to clamp down on perfectly appropriate conversations between government employees and the press, the Obama Administration has forgotten that wise foreign policy must be founded on a two-way conversation between government and the public,” his lawyers said.

John Kiriakou, a former CIA agent, was sentenced to two and a half years in prison for giving journalists the names of two former colleagues who interrogated detainees using harsh practices including waterboarding. Kiriakou became central to the debate surrounding interrogation tactics in 2007 with an interview on ABC News. By then, he had left the CIA and was working at the auditing firm Deloitte. “Like a lot of Americans, I’m involved in this internal, intellectual battle with myself weighing the idea that waterboarding may be torture versus the quality of information that we often get after using the waterboarding technique, and I struggle with it,” he said in his ABC interview. He suggested that our country should abandon the technique because “we’re Americans and we’re better than this.”

After the interview, Kiriakou was asked to leave Deloitte but became a source for other journalists investigating torture. Over the course of the next year he gave the name of one former colleague to a freelance reporter and gave the name of another former colleague to a reporter for The New York Times. He pleaded guilty in October 2012 to the leak made to the freelancer; the charge related to The New York Times was dropped.