A federal grand jury in the District of Maryland has returned a 10-count indictment charging former National Security Agency (NSA) senior executive Thomas A. Drake with the willful retention of classified information, obstruction of justice and making false statements, announced Assistant Attorney General Lanny A. Breuer of the Criminal Division.
According to the indictment, Drake, 52, was a high-ranking NSA employee from 2001 through 2008, where he had access to highly classified documents and information. The indictment alleges that between approximately February 2006 and November 2007, a newspaper reporter published a series of articles about the NSA. The indictment alleges that Drake served as a source for many of those articles, including articles that contained classified information. The indictment also alleges that Drake took a series of steps to facilitate the provision of this information to the reporter, including:
"As alleged, this defendant used a secret, non-government e-mail account to transmit classified and unclassified information that he was not authorized to possess or disclose. As if those allegations are not serious enough, he also allegedly later shredded documents and lied about his conduct to federal agents in order to obstruct their investigation," said Assistant Attorney General Lanny A. Breuer. "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."
"The FBI takes very seriously allegations involving government employees who willfully retain or disclose classified information they are not authorized to possess. Working with prosecutors, we will continue to investigate and pursue charges against these individuals whose actions cannot be justified or tolerated," said Arthur M. Cummings II, FBI Executive Assistant Director, National Security Branch.
The indictment alleges that Drake received training regarding the protection of classified information, including the instruction not to remove classified information from the NSA. The indictment also alleges that Drake signed acknowledgments affirming that any documents or information he intended for public disclosure were required to be submitted to the NSA for pre-publication review. At no time, according to the indictment, did the NSA authorize Drake to de-classify information or to disclose classified information to unauthorized persons, nor did the NSA authorize Drake to copy and print classified information in a manner that removed its classification markings or to possess classified documents or information at his home.
The indictment alleges that in approximately November 2005, a former congressional staffer asked Drake to speak with a reporter. Between November 2005 and February 2006, according to the indictment, Drake signed up for a free account and then paid for a premium account with an e-mail service that enabled its users to exchange secure e-mails without disclosing the sender or recipient’s identity. Using an alias, Drake allegedly then contacted the reporter and volunteered to disclose information about the NSA. The indictment alleges that Drake directed the reporter to create the reporter’s own secure e-mail account. After the reporter created such an account, Drake also allegedly required the reporter to agree to certain conditions, including never revealing Drake’s identity; attributing information gathered from Drake to a "senior intelligence official"; never using Drake as a single source for information; never telling Drake who the reporter’s other sources were; and not commenting on what people, to whom Drake recommended the reporter speak, said to the reporter.
Drake allegedly attempted to conceal his relationship with the reporter and prevent the discovery of evidence linking Drake to his retention of classified documents after the FBI began a criminal investigation into the disclosure of classified information. Specifically, Drake allegedly shredded classified and unclassified documents, including his handwritten notes that he had removed from the NSA; deleted classified and unclassified information on his home computer; and made false statements to FBI agents.
The indictment charges Drake with five counts of willfully retaining documents that relate to the national defense. These include four classified e-mails and an additional classified document. In addition, the indictment charges Drake with obstruction of justice for allegedly destroying and deleting documents with the intent to impede and obstruct the federal investigation into alleged disclosures of classified information. The indictment also charges Drake with four counts of making false statements to FBI agents.
Willful retention of classified documents carries a maximum penalty of 10 years in prison. Obstruction of justice carries a maximum penalty of 20 years in prison. The charge of making a false statement carries a maximum penalty of five years in prison. Each of the charged counts carries a maximum fine of $250,000.
The case is being prosecuted by Senior Litigation Counsel William M. Welch II of the Criminal Division and Trial Attorney John P. Pearson of the Criminal Division’s Public Integrity Section. This case is being investigated by the FBI and the NSA Office of Security & Counterintelligence. The National Security Division also provided assistance in this matter.
An indictment is merely an allegation. Defendants are presumed innocent unless proven guilty in a court of law.