Judge Looking Into Alleged Destruction Of Exculpatory Evidence By Pentagon In Thomas Drake Prosecution

Legal Issues

from the but,-but-he-broke-the-rules!-[breaks-doc-destruction-rules] dept

More government malfeasance is being alleged in the all-over-but-the-Genius-Bar-employment prosecution of whistleblower Thomas Drake. Documents directly related to his whistleblowing efforts — ones that would possibly have helped him fight the administration’s efforts to punish him for supposedly-protected activities — were allegedly destroyed by the Department of Defense.

Two government watchdog agencies are investigating whether the Pentagon inspector general destroyed evidence improperly during the high-profile leak investigation of former National Security Agency senior official Thomas Drake.

“DOD OIG’s handling of documents . . . is within the scope of an ongoing inquiry by the Office of Special Counsel (OSC),” Raymond Hulser, the chief of the Justice Department’s Public Integrity Section, wrote to U.S. Magistrate Judge Stephanie Gallagher in a letter dated June 11. “In the event that OSC finds evidence of criminal conduct during the course of its work, it will refer that evidence to the Department of Justice for appropriate action.”

Succinctly put, the “proper channels” for whistleblowing were used by Thomas Drake, who was prosecuted under the Espionage Act. The missing files are related to his attempt to utilize those proper channels. Obviously, following procedures can’t really be considered “espionage.” The government’s case against Drake fell apart, resulting in Drake pleading guilty to a single “unauthorized computer use” charge. But the case went on long enough that it drained Drake’s personal savings and his revoked security clearance pretty much barred him from further government employment, leading to his current position as an employee of an Apple store.

The government’s handling of documents first became an issue during the evidence-gathering stage of Drake’s prosecution, when his criminal defense lawyers sought records related to his whistleblower cooperation with the Pentagon inspector general’s office in order to defend him.

At the time, the Justice Department told the judge that most of the “hard copy documents” related to the Pentagon inspector general’s office audit that Drake had cooperated with couldn’t be provided to the defense because they’d been destroyed “pursuant to a standard document destruction policy.”

Drake’s current lawyers, who didn’t represent him in the criminal case, told the court in a letter in April that they learned otherwise while representing Drake in his recent whistleblower claim against the NSA.

Drake’s lawyers wrote that the Pentagon inspector general’s office destroyed the documents “outside of normal policy and to impede . . . the criminal case.”

Even if these documents do somehow materialize, there’s not much they can do other than vindicate Drake’s actions. It won’t rebuild his personal finances or return him to his former government position. In fact, even if evidence of wrongdoing is uncovered, it’s likely to result in no meaningful actions. The court itself can’t do much more than refer the findings to the Department of Justice, which has already noted that it is looking into these allegations. But to what end? Proof of deliberate destruction of evidence is the sort thing routinely wrist-slapped by the DOJ and the administration, both of which will probably allow the DOD to investigate itself and offer various plans to prevent future malfeasance, should it somehow manage not to clear itself of any wrongdoing.

If evidence of document destruction comes to light, the only practical purpose it will serve is to further illustrate how rigged the “justice” card game is — what with prosecutors playing with incomplete, marked decks provided to them by “victims” of government whistleblowing.

Filed Under: defense department, evidence, nsa, thomas drake