Slashdot Mirror
Thomas Drake Innocent of All Ten Original Charges
decora writes "NPR, and dozens of other media sources, are reporting that NSA IT whistleblower Thomas Andrews Drake is innocent of all 10 original charges against him; including the 5 Espionage Act charges for 'retention' of 'national defense information.' Drake stared down the government to the last minute, rejecting deal after deal, because he 'refused to plea bargain with the truth.' The judge had even recently ruled that there was no evidence that Drake passed classified information to a reporter. In the end, he has agreed that he committed a misdemeanor: 'unauthorized access to a computer.' It is unknown what this means for the other non-spy espionage cases that Obama's DOJ currently has pending (Kim, Sterling, Manning), or the Grand Jury that is currently meeting to discuss Espionage Act charges related to WikiLeaks."
FYI, since it wasn't in the summary and people will inevitably ask: the charges carry a max of one year in jail, and the prosecution agreed not to pursue any jail time at all.
Sorry, but here in the States you are assumed innocent until proven guilty. At least, that's how it's supposed to work.
I found the following article from the New Yorker to provide considerable information about what led up to the charges:
New Yorker: The Secret Sharer
They had no case. He was a source for Congress and others within our government on a massive NSA wiretapping program to make government recording all of our plaintext emails look like the the purest product of enlightenment and benevolence, probably the creepiest secret surveillance program of the modern era.
The only upside compared to other systems is that because we live in the US, and we have a strong federal judiciary and some strong de jure personal freedoms, the results of the surveillance are only rarely if ever actually used against our citizens, to justify torturing or imprisoning them, etc...--it's not like Chechneya, for example, where everyone is afraid someone else is one of the secret police, and the Russia-backed head of state goes around personally torturing people. Ask a reporter there if they would feel comfortable criticizing him and they respond "there'd be no need to ever do that!"
This guy may be an ass, I don't know--but the NSA went too far, and someone had to expose that in a way which did not betray the country, as to Congressional oversight. I am sure the NSA meant well and I can imagine how much pressure they were in post-911. I don't blame them for going too far, I blame them for not pulling back on their own as it became more obvious they were violating the Constitution. The problem is whether the next guy will mean as well, whether they always will, and whether rules will come more and more to reflect a disconnect between the morality of individuals and the ethics of government, causing a schism contrary to the ideals of democracy and the free world.
But what about the impact? There's no denying our (the US) enemies are happy about it.
Dear US, not everything is about you. Kinda fighting a civil war right now.
Hugs and kisses,
Muammar Kadafi
It was enemies of the USA that wasted time and taxpayers money bringing him to trial in the first place - they just happen to be on the US payroll. They are not going to be happy and external forces are really not going to give a shit either way about a conveniently guy some lazy spooks grabbed because doing their real job requires too much hard work.
No, you aren't assumed innocent. The courts are supposed to presume innocence while in front of a jury. There is no "duty" for anyone not actively presenting to a jury while a court is in session to presume or assume innocence.
Further, assuming (or presuming) something is irrelevant to whether it's true. OJ killed Nicole. He is guilty of that act. He was found not guilty in a court of law. None of those are contradictory statements of fact (whether they are true is something that can be debated elsewhere).
If the cops presumed you innocent, they'd never arrest you. If the prosecutor presumed you innocent, they'd never file charges. If the judge presumed you innocent, he'd not let the trial proceed. The presumption of innocence is what the jury is supposed to do, and nobody else in the entire system (and certainly nobody outside the justice system) is expected to presume innocence, though they are expected to act that way under reasonable rules of the court when in front of the jury.
Learn to love Alaska
No one is reporting he is innocent. They reached a plea deal. The government dropped the 10 charges because a judge decided the prosecution would have to show classified material to the jury. Dropping the charges because you don't have enough evidence to make a case (i.e. without using classified material) is not the same as deciding he is innocent.
If you shine a light on government waste, incompetence or malfeasance be prepared for the government to use its unlimited checkbook and unaccountable law enforcement types to make your life a living hell.
Not that I have anything against Mr. Drake (and I applaud him for being a whistleblower), but there is nothing in the case that indicates a judgement of innocence. It is juvenile, subjective, and pretty much fucking stupid to use both wikipedia and ./ to pass an Op.Ed as a statement of historical fact.
Someone (Decora) who tell others to find their own references
you can find that in the various secondary sources im just too lazy to go re-reference them. i am going to edit and put back
in the wiki talk page when confronted with the lack of good reference materials, it someone I would take his words from with a grain of salt.
Police - Your honor, I need a warrant to search the suspect's home.
Judge - What probable cause are you basing the warrant on?
Police - The suspect destroyed the evidence.
Judge - You saw him destroy the evidence?
Police - No, but there is no other way we could have missed it, the killer would have left a trail of blood. Since the suspect did it and we didn't find a trail of blood the only possible explanation is that he destroyed the evidence. To deny this warrant would be to reward him for committing more crimes.
Judge - ??
It doesn't work that way. The standards of evidence may vary but the presumption of innocence applies to the entire legal system.
But what about the impact? There's no denying our (the US) enemies are happy about it.
Corrupt elements within the NSA brought bogus charges against a heroic whistle blower and lost big-time. And... you think our enemies are happy?
Celebrate failure, and then learn from it - Nolan Bushnell
Sure. A traitor for revealing NSA warrantless wiretapping to us.
America is turning into a police state.
The authority is actually violating the laws in this case.
Instead of innocent until proven guilty, the authority is using that "traitor" bait to paint Mr. Drake as if he is guilty of treason against the United States of America.
Shame on Uncle Sam !!
Muchas Gracias, Señor Edward Snowden !
This is a big fat witch hunt by bureaucrats with too much ego and power at their disposal. There (was) a good complete article on this complete story over at the New Yorker. Short recap: the NSA has had running for a number of years a project called Echelon which sucks in every bit of email, cell phone, satellite and any other type of electronic communication and tries to process in (they called all the electronic eavesdropping "total information awareness") --Carnivore and Omnivore installations at AT&T sites are part of this--. Now this left them with a great big haystack and finding needles turned into a big pain. One crypt analyst came up with a solution and called it 'thin thread'. It was rejected by the current bureaucracy because they had another project already underway called trailblazer. So this 'thin thread' project was on the shelf. People got re-assigned and it time passed. Trailblazer failed after a few years and a few hundred million dollars. Thin thread was pulled off the shelf, but since the original team had already been reassigned, new people were working on it. Some careful controls that limits spying on Americans was built into the original version. The powers that be went out of their way to spy on Americans (even though thats not part of the NSA mandate, and illegal). The original developers protesters complained, then left. The witch hunt that followed is part the Thomas Drake trial. ---sorry for the long blurb, the New Yorker piece is 10 pages, and there is a lot of dirt I left out--,
Sincerely (hello you NSA people!),
Anonymous Coward.
I edited wikipedia , to make it hopefully much more neutral. Thanks for the tip.
As for the slashdot story, I believe that Thomas Drake's innocence is not opinion. I believe that it is a fact. If you have 10 counts against you, and they are all dropped, then you are innocent of them. Several readers have pointed this follows from the 'innocent until proven guilty' meme (which i hadn't thought of, but is a good argument...) do you disagree? Just because I am biased does not mean I am factually wrong, does it?
I believe the slashdot headline compares favorably in accurate to the other mainstream news headlines that are currently crowding around cyberspace.
The other headlines on other news sites typically say something like "NSA Leak case reaches plea deal", or "NSA spy espionage case pleads out" or "Spy-Agency Leaker pleads guilty to lesser charge" or "classified leak case reaches bargain" or whatever.
Many of these statments are misleading, or flat out wrong, and most of them imply things that are factually incorrect. Thomas Drake was never, ever, not even once, charged with 'leaking'. There is no law against 'leaking'. There are several laws covering 'disclosure' or 'delivery' of information, but he was not charged with one of those laws either. Why? Because they had no good evidence that he ever delivered any classified information to anyone. He specifically took precautions against divulging classified information to anyone - that was part of his agreement with Gorman of the Baltimore Sun - that he wouldn't give her any information.
Now, the DOJ indictment of him contains a lot of statements about 'giving classified information to a reporter', but when they actually brought criminal charges, none of those charges was for 'leaking' or 'disclosure' or 'delivery' of information. A statement is a totally different thing from a charge. Thus, any headline that says he was 'charged with leaking' or 'charged with disclosure' is misleading at best and flat out wrong at worst.
As for this word 'classified', it is also wrong. The Espionage Act 793(e) does not even use the word 'classified', it uses the phrase "national defense information". This is an important distinction, because only a jury can decide if a defendant's information counted as 'national defense information'. And this typically refers to serious military stuff, like diagrams of ships or something - that is what the law was refering to when Congress created it in 1917, and when Congress created its forefather the Defense Secrets Act in 1911, and what Congress intended when it amended the Espionage Act in 1950. And as Schmidt and Edgar point out in their famous 1973 Columbia Law article, Congress has repeatedly refused or failed to blanketly criminalize the posession or delivery of classified information - as Elsea points out in her 2010 CRS article, there is a 'patchwork' of laws, because Congress itself, and the President, love to leak classified information to the media. Thus, every headline that uses the word 'charged with leaking classified info' in relation to Drake's case is factually incorrect. He was never, not even once, charged with any law that contains the word 'classified' anywhere in it.
Again, the indictment makes a lot of statements about 'giving classified information to a reporter' (Which the judge ruled there was no evidence of). Even the headline of the DOJ news release might say things about 'classified information'. It is not my fault that the DOJ lawyers cannot read the Espionage Act. And again, a statement in an indcitment is a totally different thing from a criminal charge.
Lastly I'd like to cover the implications, the sort of tone and demeanor, of the language of the many articles floating around the web.
They seem to imply the story here is that a 'leaker' had to 'plead to a lesser charge'. That is utterly misleading. Another view of the story, one that I believe will be in the history books, is that the government, after a case that started when Bush demanded the FBI find the NS
Treason is very difficult to prove. Drake wasn't even charged with Treason. Espionage is less difficult to prove, but the government lacked compelling evidence for those charge as well. And so on it it went, down the line, until what was left was "unauthorized use of a computer". I suppose that if "ex post facto laws" were not unconstitutional, the feds might have been able to invent the crime of "similar to espionage", but they can't.
According to the US Government, Drake is neither a spy, nor a traitor.
When agreeing to a plea bargain, you have to say not only that you agree to the bargain, but that you are doing so because you actually are guilty. This is coercing a lie from innocent people who simply can't risk adding to their jail time if they have a weak case.
-- IANAL, this isn't legal advice, and definitely isn't legal advice for you. Also, Squee!
Politicians come and go. They should always be challenged upon every decision they make, they need not be respected nor adored, in fact it is normal that a significant portion of the population dislike them, anything else stinks of corruption and grossly biased media.
What needs to be challenged in this case is an out of control bureaucracy, a willingness amongst it's members to pervert the course of law to feed their own ego and chances of promotion. The distortion is reflected in the change from policing to law enforcement, where policing forces those meant to assist the public in upholding the law, now feel entitled to use force against the public to inflict their own personal view of the law.
Torture is the norm, whether it be chemical weapons or electric shock, to enforce the ego of law enforcement members. Likewise the legal system is abused, with those who are meant to seek justice now abusing it to feed their own personal goals.
Who is at fault the politicians or the electorate, those ignorant idiots that cheered along the war on drugs(actually a violent assault upon drug users), those that supported crap like environmental terrorists (not the polluters mind you but the people trying to prevent the pollution), that approved restrictive compounds and permits for protesters (utterly pointless protests and those citizens treated like disobedient children in a protest play pen), and routine violent assaults upon protesters with virtually zero justice (complete and total abandonment of the legal principles of minimum force) and of course using the courts as a penalty a pre-emptive fine of ten of thousands of dollars used with criminal intent and extortion as it's base motivation.
Chaos - everything, everywhere, everywhen
If he did indeed pass the data, he isn't a hero, he is most likely a traitor, or at the very least guilty of espionage, wire fraud, or some other similar charge. That makes him an enemy of the US.
So there's no place for whistle-blowers in your world?
Sure he may have done the things you mention (though the courts didn't find proof), but to expose the largest, most blatant illegal wiretapping operation EVER, it was worth it ("public interest" and all that).
Though, it is interesting to note, that the government gave themselves a "get out of jail free card" for this operation (see FISA 2008) but apparently this guy wasn't included in their alternate reality where spying isn't bad.
I'm guessing you favored Nixon behaving like a king with no rule of law and attempting to distory the democratic process to stay in power with no one ever finding out. You should be ashamed of such a horrible opinion.
In the US courts of law you never have to prove innocence. It's the default starting position. Unless proven otherwise, that's what the defendant is. If the prosecution fails to prove you guilty, that's what you are.
This is factually correct, no "Um, no" about it. If you're not being tried for anything, no one describes you as "not guilty." If you've been tried and acquitted, you're just as innocent as someone who hasn't been tried. There's no middle-of-the-road legal status that applies to people who have been acquitted versus those who have never been prosecuted. Both sets of people are simply legally innocent, as the GP said, period.
If he did indeed pass the data
He did indeed "pass the data". To the Inspector General who was investigating the abuse of wiretaps. Whatever "proof" the government had that he passed it to a reporter was so Top Seeeekrit that the judge couldn't be allowed to see it under seal.
Which probably means that if that super-secret evidence (of a prior event that wasn't so secret the government could not press charges and claim publicly that this event happened) ever actually existed, the only excuse I can think of was that the evidence had been obtained illegally (ie from using the warrantless wiretaps the Inspector General was investigating on Congress and/or the Investigator General) and would have been not only inadmissible in court but would have blown the fucking lid off of the Capitol.
If I have been able to see further than others, it is because I bought a pair of binoculars.
The US Senate used to serve a very similar role to the House of Lords. It was appointed by the state legislatures without the advice or consent of "The People(tm)" because it was supposed to represent the interest of the individual states as whole bodies against the federal government's authority. That's one of the reasons why you didn't see a major rejection of the 10th amendment and expansive police powers within the states by the federal government until the popular election of senators turned them into federal politicians as opposed to representatives of their state governments with authority over the federal government.
Repealing the 17th amendment and undoing the arbitrary size limit on the House of Representatives would do wonders to reign in the power of the federal government by changing the entire political culture.
For example, one can very well be guilty but not found as such by a court of law. This is why the courts do not generally attempt to answer the question "is the defendant innocent?" Rather, the courts try to answer the question, "is there enough evidence to prove the defendant did this?"
This is why, at least in the US, you will sometimes see someone win a criminal case (get judged not-guilty) but then lose a civil case that presupposes that the defendant is, in fact, guilty. The criminal and civil courts tend to use different standards (reasonable doubt vs. preponderance of evidence).
So, in other words, if the case is dropped (or the defendant is acquitted of all charges), that really says nothing about guilt or innocence. Rather it only says something about the amount of evidence in play. In this case, the amount of evidence is being limited by government fiat. They aren't willing to diclose certain evidence. Consequently, the courts do not have sufficient evidence to convict. That is a far different decision than the court determining that someone is innocent.
Which is why he lost that wrongful death civil case. Or, in other words, there are gray areas where people might be "legally innocent" in some contexts but not in others.
The presumption of innocence is not the same thing as being innocent. Only in very rare cases will a court contain a determination of innocence as part of a finding of fact. It's a bit like the position of an agnostic compared to a hard atheist. Just as the agnostic states "I don't know if God exists", the courts state "I don't know that the defendant is guilty." This is a different judgment in kind than if the courts stated bluntly, "I know that the defendant did not commit the crime" which is pretty comparable to the hard atheists' position "I know that God does not exist."