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NSA whistle-blowers want seized computers returned

Four former analysts at the National Security Agency who had complained that waste and mismanagement impeded efforts to protect America are trying to force authorities to return personal computers seized from their homes in 2007.

Among those joining the motion filed in U.S. District Court in Baltimore is Thomas Andrews Drake. The former NSA employee was charged with felony espionage for retaining classified information for a reporter but convicted only of a single misdemeanor for inappropriate computer use. After the government backed down on all of the felony charges this summer, a federal judge criticized prosecutors for dragging Drake and his family through "four years of hell."

Drake and the others said Wednesday that the government is now exerting retribution by holding on to personal information. Drake said the FBI has seven of his computers and backup drives containing items such as tax returns, graduate school papers, family photos and personal emails.

Drake, noting that the federal case against him crumbled — he went from facing 35 years in prison to serving 240 hours of community service — said in an interview that he and others have a simple request: "We'd like our stuff back."

None of the other four former employees was charged with a crime. "They're going to hold on to this stuff as long as they can until it's made public or a judge rules against them," said Drake, 54, who lives in Glenwood and now works in an Apple store. "The evidence is no longer necessary."

The motion filed as part of a civil proceeding names the NSA and the FBI as defendants. Officials for those agencies referred questions to the U.S. Department of Justice in Washington. A spokesman for the civil division, Charles Miller, declined to comment, saying the agency has not yet been served with the documents.

Another ex-analyst at NSA, Westminster resident John K. Wiebe, said the FBI returned four of his computers but still has two, taken from his bedroom and recreation room. He said they contain old photos of his ancestors from Ireland and of his parents from Indiana, along with family recipes for fish chowder from Scotland.

Drake and Wiebe said the computers being held by the FBI also contain a draft of a 10-page document that authorities dubbed in court documents the "Collaborative Paper," compiled by the employees after they left government service. They said it was meant to be a blueprint for a private consulting business to help companies mine information from large databases.

Wiebe said the employees think that is why the FBI refuses to return the computers. The document was not part of the Drake case, and Wiebe said it does not contain any classified or proprietary information.

Andrew C. White, a former federal prosecutor now in private practice in Baltimore, said that "if a computer contains classified information or contraband, the FBI will not return it. … The federal government does not have to bring criminal charges to keep the property."

In addition to Drake and Wiebe, others participating in the motion filed this week are former NSA analysts William E. Binney of Severn and Edward F. Loomis of Baltimore. The fifth, Diane S. Roark of Stayton, Ore., had NSA oversight while working for the House Permanent Select Committee on Intelligence. The group filed the motion without being represented by an attorney.

Only Drake was criminally charged, but the FBI also searched the others' homes as part of a criminal investigation, according to the court motion. The NSA employees had filed internal complaints with the Pentagon's inspector general alleging that the agency misspent money and ignored technological advances, hampering efforts to go after terrorist groups such as al-Qaida.

Drake said after being sentenced that he chose his "conscience over his career" and was helping his country by exposing the allegations to a Baltimore Sun reporter, identified in court documents as Siobhan Gorman, who now works for The Wall Street Journal. She wrote a series of award-winning articles for The Sun about NSA mismanagement in 2006 and 2007.

At the sentencing in July, U.S. District Judge Richard D. Bennett said it was "unconscionable" that Drake and his family faced years of uncertainty, only to have prosecutors pursue a minor count that did not allege he ever passed on classified or secret intelligence.

The court motion filed by Drake and the four others is brief and cites a federal rule governing property seizures. It says the computers are being held in an FBI storage facility on Beltsville Drive in Calverton. "When asked why they have not returned the property," the court motion says, "the FBI responds that it has been waiting for months for the NSA to provide the FBI with its policy regarding this matter."

Jesselyn Radack with the Government Accountability Project, which helped the NSA employees with their whistle-blower claims, said that "either the government needs to give back the computers or cough up a reason for holding on to them. After the spectacular failure of the Drake prosecution, you'd think that the government would be eager to mend fences with the whistle-blowers they so unfairly targeted."

Wiebe described the "Collaborative Paper" as a training guide in which Roark was helping them translate complicated computer language into everyday language.

"The government will argue, and they typically do, that we divulged sources and methods," Wiebe said. "We didn't divulge sources and methods. We were talking about state-of-the-art technology and the way communication systems work. … How do you get through terabytes of data, leave the garbage and keep the gold nuggets?"

Loomis, another former analyst, said the group formed the consulting company to use a method to sort data that the NSA had rejected. He said they sought and got permission from an intellectual property attorney with NSA to run with the project.

"He said we were not traipsing on any government proprietary information," said Loomis, who has completed a book on the group and plans to submit a draft to the NSA for a security clearance review. "We were given the green light to go ahead and do it."

Drake said that the misdemeanor charge to which he pleaded guilty — exceeding the authorized use of a computer — did not involve any information found on his or the others' computers, including the "Collaborative Paper."

"They're telling me that if any NSA propriety information is found on the computers or drive, it will not be returned," Drake said. "I find that a bogus argument. There is nothing classified on my computers. Period."

Added Wiebe: "This is Big Brother seizing personal items."

An earlier version of this story incorrectly described Jesselyn Radack's affiliation. She is with the Government Accountability Project. The Sun regrets the error.

peter.hermann@baltsun.com

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