NSA Whistleblower Thomas Drake: We Must Reform the Espionage Act and Protect the First Amendment

My name is Thomas Drake. I am a decorated veteran of the United States Navy and Air Force. I served my country in uniform, and then I served it again as a senior executive at the National Security Agency – one of the most secretive and powerful intelligence organizations on earth. I believed in public service. I believed in the oath I took. And I believed that when I saw something deeply wrong, it was my duty to say so.

What did I see happen after 9/11? Under the secret authorization of President Bush, the NSA made a deliberate, willful choice to bypass the Constitution. A top-secret program – known at the time as Stellar Wind – was quietly launched to conduct warrantless domestic surveillance on the American people. Phone calls. Emails. Metadata. And more. Millions of people, surveilled without a warrant, without probable cause, without any court order. The Fourth Amendment, the foundation of your right to be free from unreasonable government searches and seizures, was simply set aside – by executive order, in secret, with no accountability.

And yet there was an alternative developed with the very best of American inventiveness and ingenuity. It was a program called ThinThread that could have achieved the core intelligence mission at a fraction of the cost providing for the common defense – and with privacy protections built in, so that Americans’ data was automatically encrypted. It worked. It was legal. It had Fourth Amendment safeguards embedded and built-in by design. But it was killed – specifically because it was developed and ready to go operational for a fraction of the cost of the multi-billion dollar Trailblazer program and had those privacy protections that got in the way of what the agency wanted to do after 9/11 with Stellar Wind in the obsessively compulsive drive to vacuum up as much as data as possible in response to the failure to keep people out of harm’s way on 9/11.

I went through every channel available to me. The internal chain of command. The Office of General Counsel. The Inspector General. Congressional intelligence oversight committees. The Department of Defense Inspector General. I also shared information that NSA possessed intelligence that might have very well prevented the 9/11 attacks. I did everything a loyal, law-abiding government official was supposed to do. Every door the system told me to use – I used it. And then I went to the press with unclassified information. 

And then, on a November morning in 2007, I experienced armed FBI agents swarm my home with a search warrant. My security clearance was suspended. My career was over. I resigned and ultimately took a job at an Apple Store in Bethesda, Maryland – a former senior executive at the nation’s most powerful electronic intelligence agency, helping customers set up their iPhones and computers.

In April 2010, the Obama Justice Department indicted me on ten felony counts under the Espionage Act of 1917. Five of those counts were for “willful retention of national defense information.” I faced 35 years in a federal prison. Not for selling secrets to a foreign power. Not for sabotaging American operations. For raising the alarm – through all lawful whistleblower channels and then exercising my First Amendment right as an act of civil disobedience to bring a grievance against my own government with the press – about multi-billion fraud, waste, abuse, and the systematic violation of the Fourth Amendment rights of the American people by the government in secret.

The government’s case collapsed. The documents they retroactively labeled classified were all unclassified. Federal District Court Judge Richard Bennett called the government’s conduct “unconscionable.” He said I was put through four years of hell. I pled to a single misdemeanor for exceeding authorized use of a government computer on my terms after the government agreed to drop all 10 felony counts with no prison time or fine. But also – no career, no pension, no security clearance, and no way to undo what was done.

Here is what I need you to understand: the Espionage Act gave the government all the tools they needed to destroy my life for doing the right thing – and it contains no defense for doing the right thing because it is a strict liability law.  There is no provision in that 1917 law that allows a person to stand before a jury and say, “I disclosed this because the American public had a constitutional right to know their government was lying to them and spying on them illegally.” That argument is not available. You are treated the same as a foreign spy – no matter your motive, no matter your service, no matter your oath.That is not a law. That is a weapon.

The Espionage Act of 1917 is one of the most dangerous statutes on the books in the United States today. It was signed into law by Woodrow Wilson during World War I, originally designed to prosecute foreign spies, draft saboteurs, and enemy agents. But what it became – and what it is right now – is something far more sinister: a government weaponized silencing tool aimed at the very people protecting our democracy and our Constitutional Republic.

For over 100 years, this law has been used to criminalize political dissent, punish press freedom, and devastate whistleblowers who told the American public the truth. Not truth to foreign adversaries. Truth to you. Truth about Vietnam. Truth about mass surveillance. Truth about torture. Truth about drone assassinations. Truth about war crimes. Truth about foreign interference in our elections.

Daniel Ellsberg. Chelsea Manning. John Kiriakou. Edward Snowden. Daniel Hale. Reality Winner. These are not traitors. They are people who saw crimes being committed in our name, tried to tell us, and were prosecuted as if they had handed secrets to the Kremlin.

Here is the core problem, and I need you to sit with this: the Espionage Act has no public interest defense. None. Zero. That defense is simply not available to you. Courts have upheld this. Administrations of both parties have exploited it. And today, with an administration that has already rescinded protections against subpoenaing journalists, that has openly called leaks to the press “treason,” the threat is now more urgent than ever.

The law’s language is so broad – criminalizing the communication of “information relating to the national defense” – that courts have never even fully defined what that means. It doesn’t require proof of harm. It doesn’t require intent to hurt the country. You just have to have “reason to believe” a disclosure could be harmful – a standard so low it can swallow a journalist, a publisher, even a private citizen.

This is not hypothetical. The FBI raided the home of a Washington Post reporter earlier this year in connection with an Espionage Act prosecution of a government whistleblower. The line between holding power accountable and being called a spy is vanishingly thin.

That is why the Daniel Ellsberg Press Freedom and Whistleblower Protection Act matters so profoundly to me. Daniel Ellsberg was charged under the same section of the same Espionage Act – Section 793(e) – that was used against me. He spent the rest of his life fighting for the reform this bill represents: a public interest defense, a narrowed scope, a law that can no longer be turned on the very people protecting democracy.

That’s why this June – Espionage Act Awareness Month – I am calling attention to this bill that offers a real path forward and introduced by Rep. Rashida Tlaib. And named for the legendary Pentagon Papers whistleblower who spent the rest of his life fighting for this reform. This bill would do three critical things: limit the Espionage Act to those with an actual legal obligation to protect classified information – government employees and foreign agents – so it can never again be wielded against journalists or the general public; create an affirmative public interest defense for whistleblowers; and require the government to prove a defendant acted with specific intent to harm the United States or benefit a foreign power.

As Chip Gibbons of Defending Rights and Dissent said: “For almost 110 years, the Espionage Act has cast a shadow over our First Amendment. It is well past time to bring it in line with the First Amendment.”

Alerting the public to government wrongdoing is not espionage. It is democracy. It is what the First Amendment was built for. And until we reform this law, every journalist, every source, every person who believes you have a right to know what your government does in your name – is at risk.

It is June. The campaign is happening right now. Contact your representatives. Demand they support this bill. The Espionage Act’s century of abuse ends when we make enough noise to stop it. And I am asking you – as someone who lived this – to demand that your representatives act. Not because I want anyone to feel sorry for me. But because the next Thomas Drake is out there right now, inside some agency, watching something that should never happen in a constitutional republic – and wondering whether they can afford to say something. That person deserves a law that protects truth-tellers and whistleblowers instead of punishing them. And so do you.

Use this action tool to write to your representatives and urge them to support the Daniel Ellsberg Press Freedom and Whistleblower Protection Act.

Listen to our Primary Sources podcast episode with Thomas Drake here:

(Ep. 6) The Whistleblower & the Wrath of the NSA feat. Thomas Drake