The Justice Department on Thursday reached a plea agreement in the leak case against a former National Security Agency official.
In court papers, the government said Thomas Drake will plead guilty to exceeding authorized use of a computer, a misdemeanor.
Drake had been charged with obstruction of justice, lying to the FBI and illegal possession of classified NSA documents under the seldom-used Espionage Act of 1917, even though he was not charged with spying. If he had been convicted of those crimes, he could have faced up to 35 years in prison. The court documents in the plea deal contain no recommendation on sentencing for Drake, but misdemeanors carry a maximum penalty of one year in jail.
The documents filed Thursday by federal prosecutors said the government and Drake agreed that if the case had gone to trial, the government would have proved that from February 2006 through about March 2007, Drake intentionally accessed a system called NSANet, obtained official NSA information and provided it orally and in writing to another person who was not permitted or authorized to receive it.
Drake “knew that NSA restricted the use of and access to its computers and NSANet to official use only,” said the court papers.
Drake’s lawyers claim he is a beleaguered whistleblower, while prosecutors say the only issue in the case is whether he illegally kept classified materials on a personal computer and in his basement.
At the Justice Department, spokeswoman Laura Sweeney declined to comment on the plea agreement.
The agreement comes a week after U.S. District Court Judge Richard D. Bennett ruled that Drake’s right to be confronted with the evidence against him barred prosecutors from redacting details in the documents pertaining to that NSA technology. The government, if it wanted to introduce this high-tech, highly sensitive information, would have to do so verbatim, Bennett said.
The ruling essentially compelled the prosecution to withdraw any references to top secret information about NSA’s ability to target telecommunications technology.
Before the deal was announced Thursday evening, experts were divided over the effect the prosecution’s decision would have had on its efforts to convince jurors that Drake’s actions posed a threat to national security.
Michael Greenberger said Thursday the prosecution’s case is weakened by its inability to explain to the jury forthrightly that Drake mishandled classified data regarding the United States’ ability to eavesdrop on its enemies.
“I believe that they are forced to present evidence in a way that is likely not to be as compelling” for the jury, said Greenberger, who directs the Center for Health and Homeland Security at the University of Maryland Francis King Carey School of Law. “It will not help their case.”
But professor Stephen I. Vladeck said prosecutors in espionage cases are prepared for judicial rulings, such as Bennett’s, that compel them to withdraw parts of their evidence due to concerns for the defendant’s constitutional rights.
“If they didn’t think they could prosecute Drake with the information they could declassify, they wouldn’t have brought the case in the first place,” said Vladeck, who teaches at American University’s Washington College of Law. “A lot of that calculus had already been made” by the prosecution, he added.
The prosecutors disclosed in a letter to Bennett on June 5 that they would not mention the communications technology at trial.
“The government will not rely on the classified information related to that technology as part of its proof, nor will it indicate to the jury that the documents found in the defendant’s home relate to the NSA’s targeting of that technology,” prosecutors William M. Welch II and John P. Pearson wrote. “In short, no reference to the technology will be made. This will allow continued protection of the details of the NSA’s efforts in this area, while simultaneously protecting the defendant’s constitutional ability to present his defense.”
Drake, who served as an NSA employee or contractor for 16 years, was charged with five counts of violating 18 U.S.C. §793(e). The federal Espionage Act prohibits anyone in unauthorized possession of a document relating to national defense from retaining it or sharing it with another unauthorized person.
In addition to the crime itself, Drake was charged with trying to cover it up.
Drake had been facing a maximum penalty of 20 years in prison for obstructing justice, 10 years for retaining classified documents and five years for the false statements. He also faced a maximum fine of $250,000 for each of the 10 counts against him, the Department of Justice said.
Daily Record Legal Affairs Writer Steve Lash and The Associated Press contributed to this article.