National Security, Civil Liberties and Ethics discussion at Law College Sept. 27

Thomas A. Drake
Thomas A. Drake

A panel discussion at the UNL College of Law is part of the university's hosting of the National Whistleblower Tour. Associate Dean of Law Richard Moberly, Thomas Drake and Jesselyn Radack will visit at noon Sept. 27 in Hamann Auditorium in a fascinating program about whistle-blowing and national security. The panel is free and open to the public.

At a talk at 3:30 p.m. Sept. 27 at the Lied Center for Performing Arts, Drake and Radack will be joined by Gary Aguirre, Securities and Exchange Commissions whistleblower; and Mike McGraw, Kansas City Star Pulitzer Prize-winning investigative reporter; for another free public presentation.

The events are part of the National Whistleblowers Tour,

Hired in August 2001, Thomas Drake's first day on the job at the National Security Agency was Sept. 11, 2001. Prior to joining the NSA, Drake served for nine years in the U.S. Air Force, completed a stint as a CIA analyst, and worked as an NSA contractor.

During Drake’s work with the NSA, he became familiar with ThinThread – a data collection program that could sift through massive amounts of public data for patterns useful to analysts. He and others at NSA believed ThinThread could have prevented 9/11 and should be used by the agency to prevent future attacks. It was efficient and cost-effective, and it protected the privacy of domestic information, which the government was by law prohibited from acquiring without a warrant.

Rather than use ThinThread, the NSA decided to implement a program designed by private defense contractors called Trailblazer. Trailblazer was more expensive, undeveloped, and lacked critical protections needed to safeguard Americans' privacy.

Indeed, it appears that, after 9/11, the NSA began to engage in “domestic warrantless wiretapping,” which means that the NSA could read and search communications taking place within the United States. Most commentators believe that this type of warrantless search violated U.S. law.

Drake was concerned that the decision to implement the Trailblazer program, which cost more than $1 billion, amounted to gross fraud and waste of taxpayer money, and that the NSA had deliberately begun domestic surveillance that was illegal and unconstitutional.

Drake initially raised these concerns through official channels, including senior NSA management. Drake was told that the NSA had made the decision to use Trailblazer and that he should stop complaining. Other former NSA employees eventually initiated a complaint with the Defense Department Inspector General (who is charged with investigating these types of complaints), and Drake became a material witness in the ensuing IG investigation. Also, Drake gave information about the programs to Congressional staffers overseeing the intelligence agency.

Eventually, the New York Times reported that NSA was likely engaging in illegal wiretapping of domestic telephone calls. However, the issue that continued to concern Drake, who was still employed by the NSA, was the government’s enormous data mining capability, which he believed to be illegal in the way the NSA was using it.

Although Drake knew that speaking to the press about even unclassified information could risk losing his job due to an administrative policy against unauthorized contact with the press, he contacted a reporter in 2006 regarding issues of significant public concern about NSA mismanagement, contract fraud and waste, illegalities and alternatives to the failed multi-billion dollar Trailblazer program - namely the ThinThread project.

The government began investigating the source for the New York Times and Baltimore Sun stories, believing it might be the same person. During the investigation, federal agents searched Drake’s house and questioned him. He admitted sending non-classified information to the Baltimore Sun, but denied being the source for the New York Times. During the search of Drake’s house, the government claimed to have found classified documents, which under law should not have been stored at his house. Drake claimed he kept these documents as part of the Inspector General’s investigation, an action encouraged by the Inspector General’s own web site, which tells whistleblowers to keep copies of documents that might help support their allegations.

Ultimately, in April 2010, the Obama administration charged Drake with violating the Espionage Act by retaining, not leaking, classified information about the surveillance program. Drake faced up to 35 years in prison. On the eve of trial in July 2011, the government dropped almost all of the charges and Drake ended up pleading guilty to a misdemeanor charge of exceeding authorized use of a computer. He was not sentenced to any jail time or financial penalty.

Drake's prosecution received national attention, including an article in The New Yorker ( and a segment on 60 Minutes (

According to Moberly, the prosecution struck many observers as heavy-handed, particularly when the Department of Defense Inspector General released a report substantiating Drake’s claims about mismanagement and waste of public funds. Moreover, the evidence that Drake possessed classified information was thin.

J. William Leonard, an official who was in charge of classifying information during the George W. Bush administration, recently filed a complaint against the National Security Agency for improperly classifying the document that formed the core of the government’s case against Drake, stating that he had “never seen a more deliberate and willful example of government officials improperly classifying a document.” Remarkably, the judge even excoriated the prosecutors for their handling of the case, saying that the prosecution was “unconscionable” and did not “pass the smell test.”

You can find out more about Thomas Drake at

Jesselyn Radack served as Drake's attorney and also is the National Security and Human Rights Director for the Government Accountability Project. She also was a government whistleblower in the aftermath of the September 11 attacks. In 2001, she worked at the Professional Responsibility Advisory Office at the Department of Justice. Here is what the New York Times said about her case in 2003:

"Ms. Radack's troubles with the Justice Department began in December 2001, after [John Walker] Lindh, an American, was captured in Afghanistan after he had joined with the Taliban.

Radack, a Yale Law School graduate, worked in a Justice Department office, known as the Professional Responsibility Advisory Office, that advises department lawyers on ethical issues. She said she was the duty officer one day that December when a counter-terrorism prosecutor contacted her for legal guidance on the possible interrogation of Mr. Lindh, and she wrote a series of memorandums over the next several days advising that she and a supervisor believed the Federal Bureau of Investigation could not legally interrogate Mr. Lindh without a defense lawyer present.

"I consulted with a senior legal adviser here at P.R.A.O. and we don't think you can have the F.B.I. agent question Walker," Ms. Radack wrote in a Dec. 7, 2001, email message that was first published by Newsweek last year and reprinted last week by Mr. Kennedy in written questions to Mr. Chertoff. Such a pre-indictment interview of someone in custody "is not authorized by law," she told John De Pue, a Justice Department prosecutor in the criminal division.

Three days later, after Radack was advised that the F.B.I. had gone ahead with the interview, De Pue wrote to her: "Ugh. We are trying to figure out what actually transpired and what, if anything, Walker said. It may well be that the questioning was for intelligence purposes and that he was questioned as any other prisoner of war would be."

In fact, the F.B.I. interview produced incriminating admissions from Lindh about his involvement with the Taliban, which prosecutors used to help secure a guilty plea against him in a criminal prosecution last year. The Justice Department said Lindh waived his right to talk to a lawyer, a position validated in court.

A federal judge in Virginia sentenced Lindh last October to 20 years in prison for aiding the Taliban. As part of the court proceedings, the Justice Department said that Ms. Radack's e-mail messages were among 33 given to the court under seal during the legal discovery process.

But Radack maintained in a letter to the Justice Department inspector general and in an interview that Justice Department officials had sought to "conceal material" from the court by failing to divulge some of her email messages and had retaliated against her for writing them."