Crime and Punishment in the Intel Community

On Thursday, the government indicted former National Security Agency executive Thomas Drake for obstructing justice and mishandling classified documents—though the underlying crime, for which Drake was not actually charged, was leaking embarrassing information to national security reporter Siobhan Gorman (then of the Baltimore Sun, now at The Wall Street Journal). As Glenn Greenwald observes, the decision to move forward with a rare leak prosecution in Drake's case stands in rather sharp contrast to the decision to look the other way when it comes to other sorts of wrongdoing in the world of intelligence.

For years, the NSA managed a sweeping program of warrantless wiretaps and large-scale data mining, which a federal judge recently confirmed was in gross violation of the Foreign Intelligence Surveillance Act. The telecoms who participated in the scheme were, equally clearly, violating the Electronic Communications Privacy Act. The FBI separately and systematically flouted the same law by obtaining call records for thousands of phone numbers without any legitimate legal process. And, of course, there's the little matter of torture. For these crimes, the administration has pronounced a verdict of "boys will be boys," on the grounds that it's better to gaze boldly into our shining future than get bogged down in recriminations over all that old stuff.

Drake didn't spy on the conversations of Americans without a court order, or subject detainees to simulated drowning or sleep deprivation. Far worse, apparently, he embarrassed the NSA. The first article for which he acted as a source, "Computer ills hinder the NSA,"detailed how the agency had squandered billions on faulty computer systems that were getting in the way of effective intelligence work:

One [system] is Cryptologic Mission Management, a computer software program with an estimated cost of $300 million that was designed to help the NSA track the implementation of new projects but is so flawed that the agency is trying to pull the plug. The other, code-named Groundbreaker, is a multibillion-dollar computer systems upgrade that frequently gets its wires crossed.

The downfall of the Cryptologic Mission Management program has not previously been disclosed. While Congress raised concerns about the agency's management of Groundbreaker in a 2003 report, the extent and impact of its inadequacies have not been discussed publicly.

To be sure, Drake broke the law—just as Daniel Ellsberg did when he leaked the Pentagon Papers. But it's hard to say how the law here was working to protect national security, as opposed to the agency's image. In any event, the contrast between the reaction to Drake and the non-reaction to other forms of lawbreaking makes the standard in effect for Bush-era misdeeds clear: If you illegally gathered information on members of the public, Obama's DOJ would rather let sleeping dogs lie. If you illegally tried to get information to the public, you'd better lawyer up.  From Main Justice to Fort Meade, message received.