View Full Version : A tale of two cases

Ed Jewett
09-28-2011, 04:05 AM
September 26-27, 2011 -- A tale of two cases

On June 15, U.S. federal judge Richard B. Bennett sharply rebuked federal prosecutors for pursuing a four-year Espionage Act violation investigation and case against former National Security Agency (NSA) official Thomas Drake. At Drake's sentencing hearing in Baltimore, Bennett called the four-year long case against Drake and the prosecutors' ultimate dropping of multiple espionage charges to a single misdemeanor count of unauthorized use of a government computer "unconscionable."

Drake had been charged with providing classified information to the Baltimore Sun in 2006 and 2007. He was specifically charged with violation of sub-paragraphs (d) and (e) of the Espionage Act, which covers "transmittal" of classified information to unauthorized parties. Charges under the 1917 Espionage Act have rarely been brought by the Justice Department. The law was used against American Israel Public Affairs Committee (AIPAC) officials Steve Rosen and Kenneth Weissman for receiving highly-classified information, including Sensitive Compartmented Information (SCI), from a Pentagon official. Charges against Rosen and Weissman were dropped by Eric Holder's Justice Department on May 1, 2009.

However, the "classified material" cited by prosecutors was not originally classified and it pertained to NSA officials, particuarly then-NSA director General Michael Hayden, defrauding the government for well over a billion dollars. Hayden and his advisers awarded a failed program called Project TRAILBLAZER to a group of contractors led by Science Applications International Corporation (SAIC).

The prosecutors, acting as virtual criminal racket protection agents for Hayden and his advisers, decided to retroactively classify the unclassified whistleblowing information in order to justify the Espionage Act charges against Drake. Hayden's pet project also assisted in the program to conduct warrantless wiretapping of communications of U.S. citizens, a super-classified operation known by the code name STELLAR WIND.

Drake avoided prison and Bennett ruled against federal prosecutor's wish to have a $50,000 fine imposed on Drake. In sentencing Drake to 240 hours of community service, Bennett said "There has been financial devastation wrought upon this defendant that far exceeds any fine that can be imposed by me. And Iā€™m not going to add to that in any way.ā€

Drake was represented by two federal public defenders, James Wyda and Deborah Boardman. Drake's case began to fall party after it was featured on CBS "60 Minutes." Retired NSA officials, interviewed on camera, defended Drake and his whistleblowing actions. After the bad publicity for NSA and Eric Holder's Justice Department, the espionage charges against Drake were dropped.

Five years earlier, in another federal court room in Greenbelt, Maryland, and in a case even more egregious than the one involving Drake, federal judge Peter J. Messitte sentenced former NSA "Iraqi shop" signals intelligence analyst Ken Ford Jr., to six years in prison and no fine as a result of his politically-motivated conviction for allegedly removing two boxes of classified materials from NSA during broad daylight without detection. In fact, the documents were planted in Ford's Waldorf, Maryland home in retaliation for his signals intelligence analysis report casting doubt on the White House contention that Iraq possessed weapons of mass destruction. That report, which contained Ford's name as the preparer, eventually ended up on the desk of Vice President Dick Cheney. As a result, Ford became a target of the neo-con cell operating from within Cheney's office and the White House Iraq Group (WHIG), the same cabal that compromised Valerie Plame Wilson's covert identity and mission.

The team of Assistant U.S. Attorney David Salem; federal public defenders John Chamble, Andrea Callaman, and Susan Bauer; and even the private lawyer eventually retained by Ford, conspired to ensure that Messitte was successfully "judge shopped" as the trial attorney, that at least one dubious pro-NSA jury member was selected for the trial jury, and that Ford would receive anything but a fair trial. Unlike Drake, Ford served in a lower-level analyst position. However, Ford, an African-American who previously served as a uniformed U.S. Secret Service officer at the White House, was on a fast-track for an executive position at NSA.

"60 Minutes" never covered the Ford case, even though it was as, if not more, outrageous as the case brought against Drake. The Washington Post, rather than assign one of its national security correspondents to the case, handed it to a Metro desk reporter, who parroted in his articles what was given to him by the prosecution team.

Prosecutors never cited any classified document that was said to be in Ford's possession at the time of his arrest. Prosecutors relied on the testimony of a confidential informant named Tonya Tucker, who had several other aliases and a long criminal record, who said she saw a document labeled "classified" in Ford's home. Of course, "classified" is not a national security label or designator for any documents. Salem also charged that Ford was planning on meeting a foreign agent at Dulles International Airport to transmit documents. However, Salem could not identify the foreign country involved, a flight number, a rendezvous point, or any details of what amounted to a "pre-crime" allegation. In fact, Salem made up the entire Dulles story as a way to ensure a guilty verdict, especially considering that the jury was never shown any of the alleged classified documents that were said to be in Ford's possession. In the Drake case, the jury was shown copies of "retroactively" classified documents, which were originally unclassified.

Ford is now out of prison and serving three-years of restricted travel probation in Maryland. He maintains his innocence and intends to appeal his case. However, Ford's attempt to enlist the assistance of the parties who came to the defense of Drake have been unsuccessful. There is another problem with the Ford case. The Ford case files, including those maintained by the PACER system and the federal public defenders office in Washington, DC, have all disappeared. Even Ford's original birth certificate in the District of Columbia Vital Records Office has disappeared. The only information available on the Ford case from the Justice Department are the press releases issued on the case.

The federal public defenders office in Washington is clearly nervous about the double standard applied to Ford and Drake. Moreover, the supervisor of Ford's tainted public defenders in 2004 was Wyda, the same public defender who successfully argued Drake's case.

Former Justice Department prosecutor Thomas Tamm, under a long investigation for revealing the nature of NSA's warrantless wiretapping program to The New York Times, eventually saw his investigation by the FBI suspended. However, WMR has learned that the STELLAR WIND program was routinely violated by NSA employees. Hayden, who came up with the program and sold it to then-CIA director George Tenet and Vice President Cheney, essentially canceled the provisions of U.S. Signals Intelligence Directive 18 (USSID) 18, which governed the application of the 1978 Foreign Intelligence Surveillance Act (FISA) at NSA. NSA was prohibited from eavesdropping on "U.S. persons" without a court order from the Foreign Intelligence Surveillance Court (FISC). Under Hayden's tenure, some NSA analysts were conducting e-mail surveillance of their current and former girl friends, prompting Hayden to cover his tracks by implementing a procedure that saw database security officers, including those with oversight over the PINWALE e-mail interception database, conducting after-the-fact audit trail analysis for internal abuse of the new NSA powers.


Ken Ford, Jr. [center], reunited with his father and mother after six years of imprisonment on trumped up neo-con political charges stemming from the search for phony Iraqi WMDs.

Ford's case, which involved pressure from the Bush-Cheney White House, has also met with indifference from the Obama White House and the Congressional Black Caucus. Groups like the Government Accountability Project (GAP), which assisted with Drake's defense, did not raise a finger in the Ford case.

During his incarceration at Lewisburg federal penitentiary in Pennsylvania, Ford received rank-and-file support from some current and former NSA employees. However, unlike Drake, not one high-level NSA official, current or retired, came to Ford's defense, even though his innocence was as provable as that of Drake. It is, indeed, a "tale of two cases," one with a relatively happy outcome, the other singed with racism.