MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, Oscar-winning documentary filmmaker Alex Gibney on his latest work which digs deep into the story behind the whistle-blower site WikiLeaks. But first, life on the other side of the Obama administration's approach to whistle-blowers, the Justice Department is coming under fire for the discovery that it seized phone records from the Associated Press as part of a recent investigation into a leak.

MR. KOJO NNAMDIIt's an aggressive approach to whistle-blowers that Thomas Drake knows firsthand. Drake, a former official at the National Security Agency was accused in federal court of violating the Espionage Act, charges that stemmed from the Justice Department's assertion that he leaked sensitive information about the NSA to a newspaper reporter. Eventually the case broke down and Drake pleaded guilty to a misdemeanor of unauthorized computer use serving no jail time.

MR. KOJO NNAMDIBut Drake says it speaks volumes that he was the target of an Espionage Act case at all and that the episode speaks loudly about the current administration's philosophy when it comes to transparency and security. Thomas Drake joins us in studio. He's a former senior official at the National Security Agency, once as we mentioned, charged under the Espionage Act. Eventually, as we said, he pleaded guilty to a misdemeanor and served no jail time. Thomas Drake, thank you for joining us.

MR. THOMAS DRAKEThanks for having me.

NNAMDIAlso in studio with us is Jesselyn Radack. She is a national security and human rights director at the Government Accountability Project. She's a former ethics advisor to the Department of Justice and an attorney who helped represent Thomas Drake in his whistle-blower case. Jesselyn Radack, good to talk to you again.

MS. JESSELYN RADACKThank you, Kojo.

NNAMDIIf you have questions or comments, you can give us a call at 800-433-8850. What do you think is motivating the Obama administration to pursue leakers and whistle-blowers so aggressively and do you agree with its approach? 800-433-8850, Thomas Drake, your case which we'll talk about in more detail shortly was held up by many as an example of overzealous prosecution of a whistle-blower.

NNAMDIBut during the course of the past week, we've learned about the Obama administration secretly seeking phone records from the Associated Press to investigate a leak. The Washington Post reported yesterday about the Justice Department probe of the relationship between a reporter from Fox and his State Department source for a story about North Korea.

NNAMDITo what degree is it significant to you that this administration does not just seem to be focused on the whistle-blowers themselves but also on the journalists who report their information to the public?

DRAKEWell, it's fundamentally an attack on the First Amendment and what is considered to be traditional classic, journalistic activity in practice is now increasingly considered suspect by the Department of Justice and worthy of going after on a criminal basis. I find it extraordinarily egregious that this administration continues to push the envelope and beyond from the secrecy regime that was put into place by the Bush administration.

DRAKEI mean, this is really -- it really speaks significantly to what's happening in this country and it's certainly sending the most chilling of messages. And if my case is any example this is just a continuation.

DRAKENot only are we going to take on the whistle-blowers and charge them under the Espionage Act, we're also going to start charging or threatening to charge or considering that the journalists that are working with their sources and getting the information that's critical to the public interest, we're also going to ensure that they are part of what we'll charge them with under the Espionage Act.

NNAMDIIndeed, Jesselyn Radack, according to the Post report, an FBI agent described the journalist from Fox "at the very least an aider, abettor and/or co-conspirator in the leak." What do you take from those words?

RADACKThat's incredibly chilling because suddenly you are criminalizing regular journalistic practice and forgive the idiom but we really crossed the Rubicon when the government started prosecuting whistle-blowers under the Espionage law. But to be going after the journalists themselves, it's horrible.

RADACKI'm not surprised by it because these indictments have been littered with the names of journalists. But it is shocking and we should all be very concerned about it.

NNAMDIThomas Drake, let's go back to the beginning of your case. You were tried for providing information to a reporter at The Baltimore Sun who went on to write a series of articles about waste and fraud in the NSA's counter-terrorism programs.

NNAMDIYou maintained throughout your case that while you had contacted the reporter, you never disclosed classified information. Why did you feel compelled to reach out to the reporter in the first place? And what information were you trying to help bring to light, to the public by doing so?

DRAKEWell, it was primarily unclassified information related to massive, multi-billion dollar fraud, waste and abuse at the NSA involving a program called "Trailblazer" that never actually delivered anything except it provided a tremendous amount of money and profit for contractors, when in fact the very best of American ingenuity and innovation was never given a chance to be put into the fight.

DRAKEThe other part of it was the fact that there was a secret surveillance program that had violated the Fourth Amendment under the Constitution. And so I also provided unclassified information related to the fact that not only was there.

DRAKEWe never had to go to the dark side. We actually could have prosecuted even the war as even the administration put it at the time with the legal means we already had in existence. There was never any need to violate any law in order to find those who had perpetrated 9/11.

NNAMDIYour case did not happen in a vacuum. Investigators were also busy trying to identify the leaks responsible for a massive story broken by The New York Times about the NSA's domestic surveillance program. How was your case affected by the climate that The Times' story created?

DRAKEWell, that was the first time. I mean, that was a blockbuster article when it came out in December of 2005. It was the first time that we had any public inkling about the secret surveillance program which I had known about within the first few weeks after 9/11 and that program was known as "Stellar Wind".

DRAKEAnd so here we're now seeing, and of course the government had gained the cooperation of The New York Times to withhold that story for the prior 14 months. It was only because James Risen was about to publish his book "A State of War" that they decided to go. The New York Times decided to go ahead with the publication of that article.

DRAKEAnd that was just the tip of the iceberg. That was only the foreign connection based on domestic links that was actually revealed in that article. The surveillance program itself was far, far larger and it's the basis for which they're now micro-targeting reporters and journalists almost at will.

NNAMDIJesselyn, Thomas was charged under the Espionage Act as was Stephen Jin- Woo Kim, the man prosecutors have accused of leaking information about North Korea to Fox. The Obama administration has used this as its prosecutorial approach in about half a dozen whistle-blower cases. What do you think has empowered it to use the Espionage Act in these cases?

RADACKThat's a very good question. The idea of using the Espionage Act which is an antiquated, vague, World War I-era law meant to go after spies, not whistle-blowers, the idea of using that to go after the press, was put forward by a neo-conservative named Gabe Schoenfeld.

RADACKSo it's very curious why Obama would take a page out of his book to go after not only a newspaper but a publisher, reporter and sources, which is the vision of Schoenfeld who wanted to use it to go after The New York Times.

RADACKBut it's extremely dangerous. There are certainly other laws available to go after unauthorized disclosure of classified information which of course was never the issue in Tom Drake's case or appears to be the issue in Mr. Kim's case.

RADACKBut as you note this whole issue of the AP subpoenas comes up in a "leak investigation" and this war on leaks has been used as a thinly-veiled attempt to really go after a war on information, specifically information that the administration doesn’t like.

NNAMDIHow does our current political climate in your view contribute to these cycles? Is it that the Department of Justice is under a lot of political pressure to contain leaks and if not, what is it?

RADACKIt's hard to know. At first, I thought that prosecuting whistle-blowers under the Espionage Act was a way to curry favor with the national security and intelligence establishments which saw Obama as weak coming into office.

RADACKI've said all along that it is also a way to create a dangerous precedent for going after reporters and ultimately, I think it's a backdoor way of creating an Official Secrets Act which we don't have in this country but which the expansion of the surveillance state and national security state are certainly inching toward.

NNAMDI800-433-8850, we're talking with Jesse Radack, she's a national security and human rights director at the Government Accountability Project, a former ethics advisor to the Department of Justice and an attorney who helped represent Thomas Drake in his whistle-blower case.

NNAMDIThomas Drake is a former senior official at the National Security Agency, once charged under the Espionage Act with accusations that he leaked classified information to a newspaper reporter. He eventually pleaded guilty to a misdemeanor and served no jail time.

NNAMDI800-433-8850 is our number. What were your expectations for the Obama administration when it came to its commitment to open and transparent government? How has his team in your view lived up to your expectations or not? 800-433-8850, here is Ryan in Bethesda, Md. Ryan, you're on the air, go ahead please.

RYANHi, Kojo, I don't think that when it comes to defense or any of the transparency, I don't think the Obama administration has lived up to any of that. I think they've basically continued all of Bush's policies including the drone policy.

RYANAnd according to Frontline, my question is that I wonder how it is that it could be legal to report? I'm sure there had to have been some type of a confidentiality agreement that was signed when you worked at the NSA because that's the extent of anything that you can say is that you worked at the NSA.

RYANYou can't disclose anything that you do, say, saw, anything when you work there. And since their entire budget is classified how is it that you can report on anything whether it was over-spending, under-spending or anything since every dime that's spent is classified there?

NNAMDIThomas Drake?

DRAKEThe truth is I signed a non-disclosure agreement but the non-disclosure agreement is to protect what is actually classified information that's officially classified or information that’s under official classification review. I did not sign a non-disclosure agreement to protect illegality, wrong-doing, embarrassment or administrative or bureaucratic inefficiencies and ineffectiveness.

DRAKEThat's the reality and, unfortunately, as we've seen, even under this administration millions and millions, tens of millions of documents are being routinely classified. We have a huge over-classification problem. It makes it very convenient for the administration to then argue that something has been leaked because it now falls under "national security".

NNAMDIYou mentioned earlier "Trailblazer" and I didn't explain to the audience what "Trailblazer" was. Can you, please?

DRAKEWell, "Trailblazer" died a quiet death back in 2006, but it was NSA's landmark flywheel program to deal with the challenges of the 21st century. And it was really an analysis program in terms of digital communications and that was its centerpiece role.

DRAKEUnfortunately, it never achieved operational status. In fact, it really never developed anything that could be deployed when in fact solutions already existed.

NNAMDIThomas Drake, you have said that you voted for President Obama but when it comes to his record on whistle-blowers, national security and respect for the law you believe his administration is worse than the one that preceded it. Why is that?

DRAKEYes, I do because he's further institutionalized and normalized a whole series of practices that really are -- it's ex post facto enabling act law, essentially making legal what had been illegal. And now looking backwards to go after those who would dare raise the mirror or speak truth the power, and if you do we're going to hammer you and hammer you hard.

DRAKEYou have to remember, I was charged on the espionage act. That paints America into an extremely dark corner. That's equivalent of saying, you're a Benedict Arnold in terms of U.S. history. You're a traitor to your country. I was labeled an enemy of the state, and yet all I was doing was defending the oath that I took in terms of supporting the constitution.

DRAKEI did not take an oath to support and defend the constitution the president. I did not take an oath to support and defend the constitution for illegality or wrongdoing. And I certainly didn't take an oath to support and defend practices of the national security agency in concert with the White House that fundamentally violated the constitution.

NNAMDIWhat were your expectations when Obama first came into office? Did you expect he would call off the dogs on some of the prosecutions carried over from the Bush Administration?

DRAKEI think many people thought because he largely came into office for not being Bush -- would not be Bush that he in fact would begin to turn around many of those policies that had been put into place by Bush, both publicly and privately. I don't think anybody fully appreciated or expected that he would not only retain practically everything that had been put in place by Bush, but further extend them.

NNAMDIJess Radack, telecommunications -- by the way, Ryan, thank you very much for your call. Telecommunications companies provided oceans of data to the government as part of the NSA's counterterrorism program. They were essentially granted immunity. What do you make of the contrast between the treatment they received and what whistleblowers like Thomas Drake received?

RADACKIt's very unfortunate and hard to square. Basically the telecoms were granted immunity through the FISA Amendment Act of 2008, which granted them retroactive immunity for the myriad crimes that they had committed in turning over all that data on their customers. But I'm troubled by the fact that people like Thomas Drake and another client, John Kiriakou, who blew the whistle on torture, that they are the ones who are prosecuted for espionage, while the people who engaged in the warrantless wiretapping and who actually committed the torture are free and clear. And there's been no accountability whatsoever and very little transparency.

DRAKEThe reality is is that the national security regime, national security policy has been given a huge exemption in terms of the constitution. So if it falls under national security, it's whatever you can get away with.

NNAMDIHere now is Derek in District Heights, Md. Derek, you're on the air. Go ahead, please.

DEREKHi, Kojo. How are you? Good to talk to you again. Earlier on, one of your guests was perplexed at why the Barack Obama Administration would be so inclined to prosecute whistleblowers with the intensity that they have. And I think the answer to that question comes in how you answered the question, does Barack Obama see himself as president of the people or more president for empire? And I think he's more president of empire like the presidents we've had in the last couple of decades. And I think that answers that question.

NNAMDIOkay. I think what Jess Radack was saying was that at first she felt that this was an effort on his part to get in the good graces of the national security agencies. But she doesn't necessarily think that's the case any longer. How would you respond to Derek's notion about him being the president of empire?

RADACKI agree with Derek. I feel like he's behaving -- I mean, I campaigned for Obama. I contributed to him. I voted for him. But in terms of what he's doing, particularly as to the First Amendment, good government, open government and transparency he is not being a president of the people or of transparency. And he's behaving in a rather tyrannical fashion that should be alarming to all of us.

NNAMDIDerek, thank you very much for your call. Thomas Drake, I read in an interview you gave to Salon that you regret not going public before your indictment, but that the last place you would've shared any information was with WikiLeaks. Why is that?

DRAKEWell, at the time because it would've been sharing information with an international media organization. And that would've put me in a different category, even beyond what I ultimately was charged with. But as it turns out, it wouldn't have made any difference. As we heard in the Bradley Manning, his pre-court martial proceedings, when the Judge Lynn asked the government prosecution, what if Manning had given the same information that he gave the WikiLeaks to New York Times, they said it would've been no different. They would've charged him with the same thing.

DRAKESo in essence the New York Times equals WikiLeaks. WikiLeaks equals the New York Times. That should send an extraordinarily chilling message regarding how the government regards any kind of sharing, whether it's allegedly classified or not. If it's governmental information then, hey, it doesn't matter which outlet you shared it with. We're going to charge you the same way.

NNAMDIHere is Philip in Washington, D.C. Philip, your turn.

PHILIPHi, Philip. Oh, excuse me, hi Kojo. And I'd like to start out by saying I certainly support the First Amendment rights that the press has. My comment is about the discussion on what responsibilities journalists have when they are reporting what is classified information or what they think might be classified information, an element that really hasn't been discussed too much. And while there's certainly a compelling need for journalists to get information to the public that is necessary, what are the responsibilities -- and I think there should be some responsibilities for accounting for classified information that gets released. And I'm curious what your...

NNAMDIWell, let me -- Philip, I'm going to put this question to my guests, but first let me put this question to you. What would you say if someone said to you, you know an excellent way of never having fraud, waste or corruption revealed was to simply classify the information about it? Then nobody would ever find out what was wrong. What would you say in response to that?

PHILIPAbsolutely. And that is a clear violation of the laws that govern what information should be classified. So I can't speak on Thomas Drake's particular case. I don't know enough about it but overall that is a clear violation and...

NNAMDIOkay. Well, allow me to have Thomas Drake respond to your question.

DRAKEUnder the executive orders that govern classification, the penalties for over classification are actually the same if you were to reveal truly classified information. And yet the government has never actually charged anybody for over classifying information.

NNAMDIAs I said, we're running out of time. Philip, thank you for your call. Jess Radack, what concerns do you have -- and Thomas Drake, this question ultimately is for you too, about how the landscape for whistleblowers, for the people who want to put information in front of the public, is shifting so rapidly in an era where the government has more technological capacity than ever to gather information itself. We've learned in the past decade that the technological capabilities at the NSA alone are incredibly vast.

RADACKWell, I can tell you as an attorney representing national security and intelligence clients, I basically use drug dealer tactics, throw-away telephones, pay in cash, meet in person, aliases. And it's really unfortunate that people have to behave like we're in the dark ages, especially with all this amazing technology. And as to your caller's prior question, I think newspapers give great deference to the government in terms of what they publish and what they hold back in both the AP case and the warrantless wiretapping case.

NNAMDIAnd Thomas Drake?

DRAKEWell, we too easily forget history. I grew up as a very young teenager in the 1970s and I think it's important to note that under the Nixon Administration the Pentagon papers were classified top secret. Far higher classification than anything that Bradley Manning's alleged to disclose to WikiLeaks. And he lost the prior restraint with the New York Times. And the Pentagon papers were published.

DRAKEBut that didn't stop Nixon. He was ticked off enough, he said, I want to punish Neil Sheehan and the New York Times. I want to prosecute them. So he actually convened a grand jury. And guess what the grand jury was seriously looking at doing? Charging Neil Sheehan and the New York Time with conspiracy under the Espionage Act. We've been here before but this administration and the administration prior, the combination of what's been happening since 9/11 makes the Nixon era look like pikers.

NNAMDIThomas Drake is a former senior official at the NSA, once charged under the Espionage Act with accusation that he leaked classified information to a newspaper reporter. He eventually pleaded guilty to a misdemeanor and served no jail time. Thomas Drake, thank you for joining us. Jess Radack is a national security and human rights director at the Government Accountability Project. She's a former ethics advisor to the Department of Justice and an attorney who helped represent Thomas Drake in his whistleblower case. Jesselyn Radack, thank you for joining us.

RADACKThank you, Kojo.

NNAMDIWe're going to take a short break. When we come back, Oscar-winning documentary filmmaker Alex Gibney on his latest work, which digs deep into the story behind the whistleblower site WikiLeaks. I'm Kojo Nnamdi.