- The Washington Times - Friday, April 16, 2010

A grand jury Thursday indicted a retired senior National Security Agency official on charges he mishandled secrets, saying that he divulged classified information to a reporter through hundreds of encrypted e-mails and then sought to destroy classified documents to cover his tracks.

The official, Thomas Drake, was a senior engineer at the NSA between 2001 and 2006 who was introduced to the reporter in question in 2005 by a congressional staffer.

The indictment says Mr. Drake made arrangements with the reporter, identified only as “Reporter A” in the court papers, to communicate through a Canada-based encrypted e-mail service known as hushmail. The indictment says between February 2006 and November 2007 the reporter and Mr. Drake exchanged hundreds of e-mails containing classified material.

The indictment is a rare view into the inner workings of the NSA, the U.S. signal intercept agency based at Fort Meade, Md., that eavesdrops on and decrypts communications from foreign governments.

It is also the latest example of the U.S. government’s efforts to crack down on classified leaks.

At the beginning of the George W. Bush administration, the Justice Department promised Sen. Richard C. Shelby, Alabama Republican, it would prosecute more leak cases in exchange for him dropping legislation on disclosing secrets to the public. The FBI in 2004 recommended that the Senate ethics committee investigate Mr. Shelby for leaking the content of NSA intercepts before Sept. 11 to Fox News.

Assistant Attorney General Lanny A. Breuer said in a statement, “Our national security demands that the sort of conduct alleged here - violating the government’s trust by illegally retaining and disclosing classified information - be prosecuted and prosecuted vigorously.”

James Wyda, Mr. Drake’s public defender, said in a statement that he was reviewing the indictment and that his client had been cooperative in the government’s investigation.

“Mr. Drake has been extraordinarily cooperative with the government throughout the investigation. He loves his country and has served it well for many years. We are deeply disappointed that we could not resolve this matter without criminal charges being brought. But this is a process. And now we look forward to resolving these matters in a public courtroom,” he said.

Sen. Christopher S. Bond, Missouri Republican and vice chairman of the Senate Select Committee on Intelligence, praised the prosecution.

“The damage to our national security caused by leaks won’t stop until we see a couple of perpetrators in orange jumpsuits,” he said. “While long overdue, this indictment is an important first step. I hope the administration tracks down and punishes other government employees with loose lips and no regard for our nation’s secrets.”

The Justice Department declined to name the reporter, but the time frame named in the indictment matches a series of NSA-related articles by Siobhan Gorman, at the time a Baltimore Sun reporter. Ms. Gorman’s 2006-07 Sun articles covered the NSA’s long-standing efforts to modernize its equipment and how this effort ran into delays and cost overruns.

Ms. Gorman, who is now at the Wall Street Journal, did not answer an e-mail asking for comment.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said the case was “slightly unusual but not unheard of.”

“Every once in a while someone is prosecuted for talking to a reporter,” she said.

Under the Bush administration, the Justice Department in 2005 indicted a Pentagon analyst and two lobbyists for the American Israel Public Affairs Committee (AIPAC) on a conspiracy to divulge defense information. Last summer, the government quietly dropped the charges against the two lobbyists after securing a guilty plea from the analyst, Larry Franklin.

Steven Aftergood, the director of the project on government secrecy at the Federation of American Scientists, said that the NSA indictment differed from the AIPAC case because now the government has brought charges based on the crimes of destroying classified material, taking that material home and lying to investigators rather than legally accusing him of disclosing that material to the public.

“The way the government framed the indictment, it focuses on unlawful retention of classified documents, not on leaks to the press,” Mr. Aftergood said. “This may foreclose the possibility of any kind of First Amendment defense. Although it is a leak case, the defendant is not charged with leaking. So he probably can’t argue that it was justified by a higher cause.”

Ms. Dalglish said the effects of the prosecution could chill the prospect of sources handing over sensitive information to reporters.

“In the short term, it will probably have a chilling effect on government sources particularly those at NSA coming forward with information for reporters. I am sure that is what the government intends. For me the biggest lesson for reporters, if you are going to have conversations with confidential sources, you should have conversations and meet with them face to face,” she said.

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