Do Whistleblower Protections Work? Ask This One.

NARRATION: Battered by the impeachment hearings, President Donald Trump has focused on discrediting the whistleblower who lit the fuse.

ARCHIVAL (C-SPAN, 10-17-19):
PRESIDENT DONALD TRUMP: We have to know. Is the whistleblower a spy?

JESSELYN RADACK: I mean, there’s always a way to smear the whistleblower.

ARCHIVAL (FOX NEWS, 9-29-19):
STEPHEN MILLER: I know the difference between a whistleblower and a deep state operative. This is a deep state operate pure and simple.

NARRATION: It’s an unusual public display… one that says a great deal about how powerful whistleblower revelations can become.

JESSELYN RADACK (NATIONAL SECURITY AND HUMAN RIGHTS ATTORNEY: You have a real-life constitutional crisis going on in this country. And the whistleblower sparked that.

NARRATION: But the escalating attacks emanating from the Trump administration also show the danger whistleblowers often face by coming forward.

JESSELYN RADACK: Whistleblowers have put their lives on the line and suffered sometimes very grave consequences. And that should not be a requisite for telling the truth.

NARRATION: One case from almost a decade ago shows just how difficult a whistleblower’s life can become — the whistleblower at the center was Jesselyn Radack’s client, Thomas Drake.

JESSELYN RADACK: Tom Drake’s case is a cautionary tale for today’s whistle blowers.

NARRATION: Drake’s story began when he took a job as a senior executive at the National Security Agency shortly before 9/11. Soon after, he became concerned that as part of its anti-terrorism efforts, the agency was secretly surveilling ordinary American’s phone calls and electronic communications without a warrant.

THOMAS DRAKE: In fact, I had a confrontation with the lead attorney at NSA and he said, “You just don’t understand. ‘Exegete conditions apply.’” “If we go to Congress about what we want to do they’ll say no.” And that’s where the hair, like standing way up on the back of my neck because I recognize in that moment, which is my moment of truth, that I realized I now had a choice to make. I took an oath to support and defend the Constitution. It’s that simple. I didn’t take an oath to watch the government violate the Constitution.

NARRATION: Drake decided he couldn’t sit by any longer.

JESSELYN RADACK: Here you had the poster boy for whistle blowers. He did everything that a public servant is supposed to do, if they have a problem. He spoke with his supervisor. He went to his boss. He went to the inspector general of the intelligence communities. He went to Congress. Yet, he still ended up getting chewed up and spit out by the system.

NARRATION: Drake says he was retaliated against and his career suffered. Worse, little action was taken based on his concerns. Years later, after seeing other public revelations about the NSA’s surveillance programs, he contacted a reporter.

THOMAS DRAKE: The agreement was I would not share anything that was classified. In many respects that particular reporter became a trigger for, for going after me even harder.

JESSELYN RADACK: Tom’s cardinal sin was that after he went through all these internal channels, which failed miserably, he had gone to the press. The government wanted to make an example out of him.

THOMAS DRAKE: It was clear as we went into the fall, late fall of 2009, that they were going to move against me. I was getting ready to go to work and hear this very loud knocking on the door. My son actually opened the door and said there was, “Someone here to see you, dad.” And it was the FBI. It was a ten-felony count indictment. I was facing 35 years in prison. Five of those felony counts were under the Espionage Act.

NARRATION: To the Obama Justice Department, Drake seemed the quintessential disgruntled employee.

MATTHEW MILLER (SPOKESMAN, OBAMA JUSTICE DEPARTMENT): The Justice Department, when they brought that case believed that he was angry he was settling a score.

NARRATION: Although Drake said he didn’t leak any classified information, the government argued that he had risked national security by taking home classified work documents.

MATTHEW MILLER: He wasn’t actually charged with leaking. He was charged with mishandling classified information, for keeping it in his home. I often compare this to-to drunk driving laws. The fact that you didn’t crash your car into someone else and kill them is not a defense. Your prosecuted because it’s a reckless behavior and it could cause harm.

NARRATION: But in 2011, the government abruptly dropped the charges against Drake in exchange for his pleading to a misdemeanor – using the NSA computer system for non-official business.

ARCHIVAL (CNN, 6-11-11):
ANCHOR: He was facing 35 years in prison on espionage charges, but now it turns out he probably won’t serve any jail time at all.

ARCHIVAL (CBS, 6-10-11):
SCOTT PELLEY: It’s a high-profile failure for the Justice Department which is cracking down on government leaks.

JESSELYN RADACK: Thomas Drake’s case fell apart because a lot of the information they alleged was classified turned out not to be classified. And because he was overcharged.

MATTHEW MILLER: Drake is one of the cases where the system got it wrong. Drake probably shouldn’t have been prosecuted. I’d say ultimately the larger system got it right. He was never convicted, but I know that’s probably cold comfort to him

JESSELYN RADACK: I think that’s a ludicrous argument. He ended up broke and having to get public defenders. He ended up for a while separating from his wife. People wouldn’t talk to him. He was kryptonite. He is a brilliant technologist. And, you know, he’s working in an Apple store.

THOMAS DRAKE: I’m the example of if I follow the channels what happens. Yes, the channels exist but they’re entirely corrupted. In fact, they’re actually exposure channels. They’re not disclosure channels.

NARRATION: The irony is that these channels exist because of the importance whistleblowers play in our government.

JESSELYN RADACK: Whistleblowers are the people on the inside. They’re going to know if there’s a faulty part on the airplane that keeps jamming. They’re going to know if the baby food is tainted. They’re going to know what the government is doing that is violating the law.

THOMAS DRAKE: You can’t exercise your civic responsibilities unless you’re informed of what’s going on inside government.

JESSELYN RADACK: Tom Drake’s case is a cautionary tale about how far the government will go to burn a whistleblower, but also how telling the truth can basically make a huge difference.

NARRATION: The NSA surveillance programs that Drake risked his career to report were eventually abandoned or brought under court oversight. Whistleblower protections were also strengthened following their very public failure to protect him.

But the Trump Administration’s response to the Ukraine investigation shows just how fragile those protections still are.

JESSELYN RADACK: There were a number of reforms, whether they have, in fact, really helped whistleblowers I think is a very open question. The big danger for all whistleblowers is always retaliation. We’re seeing that right now. You have the most powerful person on the planet saying that this whistleblower should be treated like a spy. It’s terrifying.

(END)