There have been a 'spate' of headlines about Thomas Drake's case since all 10 original charges against him were dropped in June 2011.
They almost invariably use words like 'leak' or 'classified'. They are almost invariably wrong.
However Marcy Wheeler, a blogger, has gotten it right. She has written this summary for The Nation:
Government Case Against Whistleblower Thomas Drake Collapses, Marcy Wheeler, June 13, 2011
Note the differences between Wheeler's article and countless others.
1. She does not use 'leak case' or 'classified' in her title
2. She does not repeatedly state incorrect things like 'Drake was charged with leaking classified documents'. The 793 section of the Espionage Act doesnt even used the word classified , 'leaking' is not a valid legal term, and Mr Drake was never charged with 'delivery', only 'retention'. Aside from that, Wheeler does use the term 'ordinary leaking', which implies, quite correctly, that what Mr Drake actually did happens all the time in Washington - he talked to a reporter off the record.
3. She actually uses the word 'whistleblower'. Not 'charged leaker'. And she uses it in the title. Now you can argue whether or not 'whistleblower' is a non-neutral word that journalists should shy away from .. but how is 'leaker' neutral? When he wasn't even criminally charged with doing it?
4. She points out that two of the documents he had were actually unclassified. She also mentions the prosecution tried to hide the fact that one of them was unclassified from the defense for a long time in pre-trial "discovery", which is not very professional of the prosecution.
5. She points out the difficulty of prosecuting someone for 'leaking' information thats unclassified, under an anti-spying law.
6. She points out the judge held up Drake's right to defend himself, that was the motivation for disallowing the government's use of the Silent Witness Rule and CIPA "substitutions" and "redactions".
7. She goes into detail about the Sterling case, and gives other historical context like the AIPAC case and the Ellsberg case.
8. She points out that Manning is under the UCMJ, so technically it is not the DOJ that is going after him
9. She points out that the Wikileaks people are under Espionage Act investigation.
Now that is a damn fine article. Compare it to the many other articles floating around. I am having some sort of 'triggering' episodes, reading things like Pete Yost's AP article which accuses Drake's team of Graymail. How do you 'graymail' the government with unclassified information? It makes one's mind fly off on all sorts of angry directions that lead one nowhere good. The government often tries to paint whistleblowers as 'crazy' - well if there is certainly enough bad information floating around the media, the government, & elsewhere to drive a third party observer crazy, I can't imagine what it feels like to be the actual person who had these allegations made against them. Even after all charges against them are dropped, some sectors of the media (and government spokes people) are still getting the fundamental details of the case wrong. I guess as an upset third party observer, one can only tell one's mind to chill and deal. And maybe write a few letters to the editor.
Fine. So didn't the government claim he had given classified information to a reporter? Isn't that leaking? Yes. The government said that many times in it's indictment. The DOJ gave out a press release on the case (which makes it hard to understand arguments that Obama's administration was in no way involved in the case, and that the US Attorneys were acting independently). But saying something in a press release and charging somebody with a crime are two different things. In the end, the judge ruled that A. none of the hushmail emails between Drake and Gorman were classified, and B. there was no evidence that Gorman's articles contained classified info (the government had tried to hide the articles at trial too; Jesselyn Radack of the Government Accountability Project, of which Drake was a client, points all of this out at her Daily Kos blog1,2). I'm not saying the reports should leave out these details. I'm just saying there should be a little more fidelity to reality.
And not all the media reports are so upsetting as the AP article. I guess it is human nature to magnify the negative and ignore the positive - that charges against Mr. Drake have been dropped. One still has that dull feeling, "this never should have happened in the first place". And the wish for this blatant, obvious fact to be acknowledged.
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PS. A note, Marcy Wheeler says Mr. Drake in no way, shape, or fashion wanted to "cause the US harm, as the Espionage Act requires". The Espionage Act doesn't actually require that. I have made this mistake myself in the past. In US v Gorin (circa 1941) and other caselaw the Espionage Act also includes the concept 'or aiding a foreign nation' - enemy or ally. It also depends on what type of information is being discussed and which paragraph of the Espionage Act is used. IIRC that's also the reason the government has been able to go after people who gave information to Israel, an ally, under the Espionage Act over the years.
That is one of the criticisms of the act - the language is so convoluted and vague that people have a hard time figuring out what Congress even intended by it.
References
[1] ANOTHER WaPo Editorial: Prosecution Against Drake Poorly Conceived, Jesselyn Radack, 6 13 11, Dailykos.com
[2] Powerful Ruling in the Drake Case, Jesselyn Radack, 6 2 11, Dailykos.com
[3] Government Case Against Whistleblower Thomas Drake Collapses Marcy Wheeler,
June 13, 2011
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