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Did Thomas Drake Get iJustice?

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There’s an interesting discussion at the end of Josh Gerstein’s article on the Drake plea agreement. He points out that after Judge Bennett ruled that the government needed more descriptive substitutions for some of its exhibits, DOJ did not appeal the decision.

Experts said it was unlikely that Bennett’s rulings accounted entirely for the government’s sudden willingness to accept a sharply reduced charge. In a court filing Friday, prosecutors said “the government respectfully disagrees with the Court’s rulings” regarding what information Drake was entitled to use in his defense.

“In light of the Court’s ruling, which would mean that highly classified information would appear, without substitution, in exhibits made publicly available, the NSA has concluded that such disclosure would harm national security,” prosecutors wrote.

In cases involving classified evidence, the government has the right to pursue a pre-trial appeal challenging a judge’s rulings about what evidence the defense can present and any “substitutions” used to camouflage secret information.

Despite its disagreement with Bennett, who was appointed to the bench by Bush, the Justice Department did not challenge the judge’s rulings and instead commenced jury selection for the trial.

He also describes Jesselyn Radack, who in her role at Government Accountability Project, had supported Drake in his whistleblower stance, saying,

Radack told reporters that when [prosecutor William] Welch initiated plea talks a week ago he said he was doing so at [DOJ Criminal Division head Lanny] Breuer’s urging. She attributed the government’s flexible stance in part to sympathetic media coverage Drake received in recent weeks from The New Yorker and “60 Minutes,” among others.

Now, I have no idea whether Radack was close enough to the DOJ side of things to be able to judge their motivation. But I am struck that Lanny Breuer instructed Welch to seek a plea deal. And if Radack’s timing is correct, then DOJ started seeking a plea deal on the same day that Bennett ruled on the CIPA substitutions, but before DOJ actually withdrew its exhibits.

Radack attributes DOJ’s changed stance to reporters’ coverage of Drake’s case (ironically, in fact, to New Yorker and 60 Minutes pieces that almost certainly contained far more classified information in them than Drake was alleged to have kept).

But POGO’s Danielle Brian recalls that she raised Drake’s treatment with President Obama back in March.

I knew my topic was likely to be sensitive. I began by thanking the President for his strong support of whistleblower protections, and noted that it was not for lack of effort on the part of the White House that the legislation didn’t pass at the end of the last Congress.

I noted, however, that the current aggressive prosecution of national security whistleblowers is undermining this legacy. That we need to create safe channels for disclosure of wrongdoing in national security agencies. That we need to work harder to shrink the amount of over-classified materials that unnecessarily prompt leak prosecutions.The President shifted in his seat and leaned forward. He said he wanted to engage on this topic because this may be where we have some differences. He said he doesn’t want to protect the people who leak to the media war plans that could impact the troops. He differentiated these leaks from those whistleblowers exposing a contractor getting paid for work they are not performing. I was careful not to interrupt the President, but waited until he was done. I pointed out that few, if any, in our community would disagree with his distinction—but that in reality the current prosecutions are not of those high-level officials who regularly leak to the press to advance their policy agendas. Instead, the Department of Justice (DOJ) is prosecuting exactly the kind of whistleblower he described, for example one from the National Security Agency.

The President then did something that I think was remarkable. He said this is an incredibly difficult area and he wants to work through how to do a better job in handling it.

And Brian also mentioned something I thought of, too: Thomas Drake’s chance encounter with Eric Holder at the Apple store where he works.

Former National Security Agency (NSA) official Thomas Drake, who is being prosecuted under the Espionage Act for allegedly “retaining” allegedly “classified” information (deemed so AFTER the evidence was seized from his house and subject to a Forced Classification Review), was busy at work at the Apple Store.  Attorney General Eric Holder was at the iPhone table.

Drake said,

Attorney General Holder [Holder looks up]–I’m Thomas Drake, the former National Security Agency official who’s been in the news.

Holder looked directly at him. Drake then asked,

Do you know why they have come after me?

Holder answered,

Yes, I do.

Drake asked,

But do you know the rest of the story?

Holder looked away, and then just left the store with his small entourage, including his security detail.

That encounter appears to have happened in late May.

Mind you, it shouldn’t take personal encounters like this for the Administration to realize it was going to look really stupid trying to convict a guy for keeping two unclassified documents in his email archive. But in the same way that it took PJ Crowley asking the President about Bradley Manning, did it take Thomas Drake asking Eric Holder about his own case to make that case to the Administration?

Plea Bargain a Concession that DOJ Indicted Thomas Drake for Unclassified Information

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There’s something that’s missing from the coverage of the Thomas Drake plea bargain. Yes, this is a huge victory for Drake. A huge victory for whistleblowers. Yes, it proves that William Welch is an even bigger hack than the failed Ted Stevens case showed him to be.

But what about the two other charged documents?

Remember, what reportedly sunk DOJ’s case was a ruling from Judge Bennett that the government had to provide descriptions of one of the technologies they used to collect telecommunications; the government withdrew–in part or in whole–three of the charged documents in response. But the government originally charged Drake with illegally keeping five documents. The other two were described in the indictment as,

  • A classified email entited “What a Success”
  • A two-page classified document deemed “the Regular Meetings” document

If the charges built on these two documents were halfway decent, Drake wouldn’t have gotten his misdemeanor plea bargain.

But of course they weren’t even halfway decent.

The “What a Success” document was declassified by the government in July 2010, just months after the government indicted Drake.

The “Regular Meetings” document not only was never formally classified–though the government says it should have been and Drake should have known that–but the government tried to withhold from Drake evidence that the document was published on NSANet as an unclassified document.

It is disturbing that the government did not produce the March 22, 2010 memorandum [showing that NSA’s lead investigator had found the document to be posted on NSANet as an unclassified document] to the defense until February 4, 2011, ten months after the Indictment was issued. The information in the memorandum is undisputedly Brady material, and the government should have disclosed it many months ago. None of the documents found in Mr. Drake’s home was marked classified. For some of these documents, the government claims that Mr. Drake had received them originally with classification markings. The significance of the March 2010 memorandum is the government’s concession that the “Regular Meetings” document was published as “unclassified” and had never been deemed “classified” until after it was recovered from Mr. Drake’s home.

Under the Due Process Clause of the Fifth Amendment, the prosecution is required to disclose exculpatory evidence to a defendant in a criminal case. See Brady v. Maryland, 373 U.S. 83 (1963). Here, there can be no dispute that the information in the memorandum is exculpatory. In the Indictment, the government charges that the “Regular Meetings” document is “classified.” See Indictment ¶ 17. The fact that the document was marked “unclassified” and was posted on the NSA intranet as “unclassified” directly contradicts material allegations in the Indictment. See id.; see also id. ¶ ¶ 2, 3, 3 [sic] (“Classified information had to contain markings identifying the level at which it was classified.”); ¶ 8 (alleging Mr. Drake retained and disclosed “classified” documents). In addition, the government clearly seems to be of the opinion that, if a document is classified, this fact supports a successful prosecution under 18 U.S.C. § 793(e) (an opinion with which the defense disagrees). It necessarily follows, therefore, that a memorandum indicating that a document was marked “unclassified” and posted on NSA’s intranet as “unclassified” is potentially exculpatory to a defendant who is alleged to have violated § 793(e).

For this reason, the prosecution was under a constitutional obligation to disclose the memorandum to defense counsel, yet chose not to do so. See Brady, 373 U.S. at 87 (“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”). What makes the government’s actions even more disturbing is the fact that defense counsel had to specifically ask the government for any evidence that the “Regular Meetings” document was posted on NSANet. This request came months after our initial request for all Brady material and the prosecution’s representation that it had produced all Brady material. It was only after our specific inquiry about a central document in the case that the government produced the March 22, 2010 memorandum. The government’s failure to turn over this exculpatory evidence at the beginning of the case is indefensible. And its decision to charge Mr. Drake with retaining a “classified” document clearly marked “unclassified” is, at a minimum, wrong. [my emphasis]

In other words, the government learned a month before they indicted Drake that this document wasn’t actually classified. But they indicted him for it anyway, and simply didn’t provide him evidence showing that fact until 10 months after they indicted him.

So in addition to dropping charges related to the evidence the government withdrew, the government also vastly restructured charges pertaining to these unclassified documents. Mind you, these documents are what the plea information describes (Drake would have collected the other documents pertaining to the IG complaint before 2006).

From in or about February 2006 through approximately March 2007, the defendant intentionally accessed NSANet, obtained official NSA information, and provided said information orally and in writing to another person not permitted or authorized to receive the same. In doing so, the defendant knew that he exceeded his authorized use of NSANet each time he accessed NSANet and obtained said information for that purpose because such access was not for the official use or business of NSA.

But what they had originally charged as “classified” information became “official NSA information” in the ultimate plea agreement.

Mark Benjamin is right to focus on William Welch’s role in the collapse of this case. But we also ought to be asking why the government indicted a person for leaking “classified” information when it knew that it was not classified.

Thomas Drake Signs Plea Agreement; Government Attempt to Expand Espionage Act Fails

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Thomas Drake just signed a plea agreement, admitting to Exceeding Authorized Use of a Computer. (h/t Steven Aftergood) The plea says:

The defendant intentionally accessed a computer and exceeded his authorized access; by doing so, the defendant obtained information from any department of agency of the United States.

[snip]

From in or about February 2006 through approximately March 2007, the defendant intentionally accessed NSANet, obtained official NSA information, and provided said information orally and in writing to another person not permitted or authorized to receive the same. In doing so, the defendant knew that he exceeded his authorized use of NSANet each time he accessed NSANet and obtained said information for that purpose because such access was not for the official use or business of NSA.

Now the plea doesn’t say anything about what sentence they’ve agreed to. The base level is 6, and the calculation works out to 6, which means he’s eligible for no jail time (the maximum punishment is a year). The plea indicates “the Criminal Division will not oppose a non-custodial sentence.” So hopefully the judge will just be done with this and Thomas Drake can get on with his life.

Meanwhile, the people who illegally wiretapped us (according to Drake, in highly inefficient fashion)? They remain free.

While I hope Drake avoids any jail time here, equally important is that the government has once again failed to broaden the Espionage Act to cover garden variety leaks.

“Collections Sites” and the Thomas Drake Case

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I wanted to look at the the three documents that the government is withdrawing in whole or in part in the Thomas Drake case. Ellen Nakashima implies that three of the documents are three of the five charged documents.

According to people following the case, the government may have to drop two Espionage Act counts that relate to information that Drake submitted to the Defense Department inspector general between 2002 and 2004 to buttress colleagues’ complaints about waste, fraud and abuse of a bungled NSA data-sifting program, Trailblazer. He and his former NSA colleagues thought the complaints were confidential.

The evidence for those two counts is contained in Exhibits 42 and 43, according to the sources. Prosecutor William M. Welch II, in a letter Sunday to Bennett, a U.S. District Court judge in Baltimore, said those exhibits will be withdrawn. The letter was first reported by Politico.

Another exhibit, numbered 41, also consisting of information Drake submitted to the inspector general, is intended to support a third Espionage Act count that may also be dropped, the sources said. That exhibit will be redacted, the prosecution has said.

In filings, Drake’s lawyers make it clear that Counts 1 and 2 relate to emails Drake kept; Counts 3, 4, and 5 relate to documents he had in boxes in his basement in connection with the DOD Inspector General complaint.

To negate evidence that Mr. Drake “willfully retained” the documents in Counts 3-5, and to show that any misstatements resulted from confusion, mistake, or faulty memory, the defense intends to present evidence of the sheer volume of documents that Mr. Drake possessed and shared with the DOD-IG. The volume of the documents will provide a contrast with the slight number of DOD-IG related documents recovered from the basement and, thus, will evidence the likelihood of negligence, inadvertence, mistake, or carelessness.

In other words, the documents in Counts 3, 4, and 5 appear to be the documents the government has chosen to withdraw rather than provide adequate substitutions for. Those documents are described as:

  • A four-page document “bearing the features of an email” titled “Volume is our Friend”
  • A three-page document “bearing the features of an email” titled “Trial and Testing”
  • A five-page document “bearing the features of an email” titled “the Collections Sites”

Note, while there’s no way to guarantee that the government has maintained the same chronology in numbering Counts as it has Exhibits, it is withdrawing Exhibits 42 and 43, while it is just redacting all mention to the technology in question in Exhibit 41, suggesting that if the order was maintained, it’d be the “Trial and Testing” and “Collections Sites” documents the government had withdrawn completely.

But in any case, it appears that the emails in question deal with the volume of telecommunications data collected, the trial and testing of the system (remember that the key IG complaint was that Michael Hayden had selected Trailblazer over ThinThread in spite of the fact that the latter did better in testing), and places where telecommunications data were collected.

With that in mind, take a look at the following passages of the key Siobhan Gorman story in question:

ThinThread would have:

* Used more sophisticated methods of sorting through massive phone and e-mail data to identify suspect communications.

[snip]

A number of independent studies, including a classified 2004 report from the Pentagon’s inspector-general, in addition to the successful pilot tests, found that the program provided “superior processing, filtering and protection of U.S. citizens, and discovery of important and previously unknown targets,” said an intelligence official familiar with the program who described the reports to The Sun. The Pentagon report concluded that ThinThread’s ability to sort through data in 2001 was far superior to that of another NSA system in place in 2004, and that the program should be launched and enhanced.

[snip]

With the explosion of digital communications, especially phone calls over the Internet and the use of devices such as BlackBerries, the NSA was struggling to sort key nuggets of information from the huge volume of data it took in.

By 1999, as some NSA officials grew increasingly concerned about millennium-related security, ThinThread seemed in position to become an important tool with which the NSA could prevent terrorist attacks. But it was never launched. Neither was it put into effect after the attacks in 2001. Despite its success in tests, ThinThread’s information-sorting system was viewed by some in the agency as a competitor to Trailblazer, a $1.2 billion program that was being developed with similar goals. The NSA was committed to Trailblazer, which later ran into trouble and has been essentially abandoned.

Both programs aimed to better sort through the sea of data to find key tips to the next terrorist attack, but Trailblazer had more political support internally because it was initiated by Hayden when he first arrived at the NSA, sources said.

NSA managers did not want to adopt the data-sifting component of ThinThread out of fear that the Trailblazer program would be outperformed and “humiliated,” an intelligence official said.

Without ThinThread’s data-sifting assets, the warrantless surveillance program was left with a sub-par tool for sniffing out information, and that has diminished the quality of its analysis, according to intelligence officials.

Sources say the the NSA’s existing system for data-sorting has produced a database clogged with corrupted and useless information.

The mass collection of relatively unsorted data, combined with system flaws that sources say erroneously flag people as suspect, has produced numerous false leads, draining analyst resources, according to two intelligence officials. FBI agents have complained in published reports in The New York Times that NSA leads have resulted in numerous dead ends. [my emphasis]

In other words, one of the key differences between ThinThread and Trailblazer was in the data-sorting technique used.

Jane Mayer’s piece on Drake reveals some details about why ThinThread was better at sorting.

As [ThinThread’s inventor Bill] Binney imagined it, ThinThread would correlate data from financial transactions, travel records, Web searches, G.P.S. equipment, and any other “attributes” that an analyst might find useful in pinpointing “the bad guys.” By 2000, Binney, using fibre optics, had set up a computer network that could chart relationships among people in real time. It also turned the N.S.A.’s data-collection paradigm upside down. Instead of vacuuming up information around the world and then sending it all back to headquarters for analysis, ThinThread processed information as it was collected—discarding useless information on the spot and avoiding the overload problem that plagued centralized systems. Binney says, “The beauty of it is that it was open-ended, so it could keep expanding.”

[snip]

Working with N.S.A. counterterrorism experts, he had planned to set up his system at sites where foreign terrorism was prevalent, including Afghanistan and Pakistan. “Those bits of conversations they found too late?” Binney said. “That would have never happened. I had it managed in a way that would send out automatic alerts. It would have been, Bang!”

[snip]

An agency spokesman declined to comment on how the agency “performs its mission,” but said that its activities are constitutional and subject to “comprehensive and rigorous” oversight. But Susan Landau, a former engineer at Sun Microsystems, and the author of a new book, “Surveillance or Security?,” notes that, in 2003, the government placed equipment capable of copying electronic communications at locations across America. These installations were made, she says, at “switching offices” that not only connect foreign and domestic communications but also handle purely domestic traffic. As a result, she surmises, the U.S. now has the capability to monitor domestic traffic on a huge scale. “Why was it done this way?” she asks. “One can come up with all sorts of nefarious reasons, but one doesn’t want to think that way about our government.”Binney, for his part, believes that the agency now stores copies of all e-mails transmitted in America, in case the government wants to retrieve the details later. In the past few years, the N.S.A. has built enormous electronic-storage facilities in Texas and Utah. Binney says that an N.S.A. e-mail database can be searched with “dictionary selection,” in the manner of Google. After 9/11, he says, “General Hayden reassured everyone that the N.S.A. didn’t put out dragnets, and that was true. It had no need—it was getting every fish in the sea.” [my emphasis]

In other words, aside from the built-in privacy protections, ThinThread performed better than Trailblazer because it sorted data as it was collected at remote sites chosen because of some tie to terrorism. Trailblazer, on the other hand, actually copied all the data passing through switching offices, some of which carried entirely domestic traffic. Only after collecting all this data did Trailblazer start sorting through to find the terrorists.

It seems possible that these differences are made clear in the documents the government just withdrew (particularly the “Collections Sites” one).

An important part of the complaint Thomas Drake and others were making is that the government chose to collect and store everyone’s telecommunications data rather than collecting data in more logical places and eliminating all the unnecessary data. And they did so, the whistleblowers suggest, so the government could go back in and pull up your communications history at some time in the future.

And that revelation may well be what the government is trying to prosecute Drake for, while hiding the underlying truth.

Thomas Drake to Government: “Bring It”

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Apparently, the government is scrambling in the Thomas Drake case.

According to Ellen Nakashima, they offered him two plea bargains yesterday, both involving no jail time. He rejected both.

Drake has repeatedly told friends that he will never “plea bargain with the truth.”

Drake turned down a deal to plead guilty to unauthorized retention of classified documents. It was a deal similar to the one accepted in 2005 plea by former national security adviser Samuel R. “Sandy” Berger after he removed and shredded classified material relating to the Clinton administration’s record on terrorism from the National Archives.

“Why should you plead to something you didn’t do?” said Bill Binney, a friend and former colleague who, with Drake, tried to raise concerns about what they saw NSA corruption and constitutional violations. “That’s the whole point. People of character don’t do that.”

Let me just take this moment to remind everyone what a train wreck William Welch–the prosecutor who screwed up the Ted Stevens prosecution, among others–has been for DOJ. On the eve of prosecution, the evidence he has to prove someone illegally kept classified information are three documents thrown in the trash can, two other documents that are currently unclassified, and a bunch of people in government speaking openly about the information that appeared in the three trashed documents.

I guess it wasn’t such a good idea to put such a relentless, but incompetent, prosecutor in charge of your leak cases, huh Holder?

Thomas Drake’s Public Domain Motion

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There’s something else that has been going on as the case against Thomas Drake has gotten narrowed because the government withdrew some of its exhibits. Drake’s lawyers have been arguing that some of this information–and, I believe, some of the information that subsequently got withdrawn–has already been discussed by government officials.

I noted this filing the other day. It basically challenged the government’s claim that this information was “closely held” by pointing out that NSA itself, the Director of National Intelligence, Congress, DOJ, and “the White House” had already introduced the information the government accuses Drake of leaking into the public domain.

In his memorandum, Mr. Drake submitted evidence that information found in the documents in his home and considered classified by the National Security Agency is not “closely held.” Indeed, the evidence shows that the allegedly classified information has been officially released and discussed by numerous agencies and officials of the United States government, including NSA, the Director of National Intelligence, the United States Congress, the Department of Justice, and the White House. This “public domain” evidence was provided to the Court in response to the Court’s request during the Section 6(c) hearing. During the hearing, counsel represented that the defense will introduce evidence that some of the allegedly classified information found in the documents charged in the Indictment can be found in the public domain.

But there’s another key detail in this passage: it describes this information as “information found in the documents in his home and considered classified by the National Security Agency.”

While this is quite vague, I think it may suggest that the information in question consisted of the three documents from the box in Drake’s basement which he retained as part of his Inspector General complaint. I say that because the NSA no longer considers the emails he allegedly kept classified, and because the documents physically in Drake’s home were the ones in the box in his basement.

And that’s potentially significant because those appear to be the documents that Ellen Nakashima appears to confirm are the same ones the government has withdrawn in full or in part.

So if I’m right, it means the following happened:

June 2: Drake’s team warns it will introduce that entities including the DNI and the White House introduced the charged information into the public domain already

June 2: On the same day Drake’s team says it will show the information is already in the public domain, it also submits a sealed document with 8 exhibits

June 3: Judge Bennett rules that the government has to provide more explicit descriptions of the technology in question to allow Drake to defend himself

June 5: The Government announced it was withdrawing a series of documents, including (if I understand Nakashima correctly) two of the charged documents

June 7: Judge Bennett makes an additional ruling on admissibility of classified information

June 7: Drake’s team submits another sealed document

June 8: Government files response to June 2 sealed document with 8 exhibits

June 8: Drake’s team modifies the June 7 sealed document

Now, obviously, we can’t read anything into all this sealed discussion. Some of it may be a response to the government’s withdrawal of several documents. Some of it may relate to entirely unrelated pre-trial issues (mixed in here is also a sealed Drake subpoena).

But I wonder whether Drake didn’t submit exhibits proving his point–that the White House, DNI, and others had already discussed some of this information on June 2. And I’m wondering whether one of the government’s concerns, here, is that Drake will show the extent to which this discussion already happened.

Recall that the reason the AIPAC trial got dismissed–which in the way it used the Espionage Act resembles this one–was because the defendants were going to subpoena people like Condi Rice to show they were already leaking the charged information. The only hint Drake might have subpoenaed one of these people is the sealed subpoena. But by focusing attention on the public statements of top officials (I suspect these would have occurred in the context of the FISA Amendments Act debate), Drake would not only do serious damage to the government’s case, but also focus attention on precisely what the government claims is so secret.

Perhaps just as importantly, it would demonstrate the degree to which the government selectively prosecutes only some leakers.

In any case, if any of this is accurate (and it’s very speculative at this point), it may suggest that one reason the government wanted to withdraw these documents was because it would neutralize Drake’s public domain arguments.

The Government’s Thomas Drake Case Crumbles

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As I noted the other day (and Josh Gerstein first reported), the government has chosen to withdraw two exhibits and redact discussion of a certain technology from another in the Thomas Drake case.

Ellen Nakashima appears to reveal that those three documents were three of the five charged documents.

According to people following the case, the government may have to drop two Espionage Act counts that relate to information that Drake submitted to the Defense Department inspector general between 2002 and 2004 to buttress colleagues’ complaints about waste, fraud and abuse of a bungled NSA data-sifting program, Trailblazer. He and his former NSA colleagues thought the complaints were confidential.

The evidence for those two counts is contained in Exhibits 42 and 43, according to the sources. Prosecutor William M. Welch II, in a letter Sunday to Bennett, a U.S. District Court judge in Baltimore, said those exhibits will be withdrawn. The letter was first reported by Politico.

Another exhibit, numbered 41, also consisting of information Drake submitted to the inspector general, is intended to support a third Espionage Act count that may also be dropped, the sources said. That exhibit will be redacted, the prosecution has said.

So two, maybe three charges out the door there. And, as Nakashima reminds, the other two charged documents are the ones NSA declassified not long after they were found on Drake’s computer.

Apparently, the government plans to get up before a jury with three documents in a trash can, two others that appear to be a classic case of overclassification. Another charge alleges that Drake lied about passing classified information to Siobhan Gorman; the government will have to prove that with either now-declassified information or information they can’t enter into evidence. Then there’s the charge that alleges that Drake lied about bringing classified documents home; if I understand Nakashima’s story right, then the government is in the process of throwing out the three purportedly classified documents they found at his home.

There are a few more charges: for example, after complaining to the jury that Drake left classified documents lying around at his home, they’re going to ask the jury to convict him for destroying classified information so it wouldn’t just be lying around his home.

Mind you, they might dink and dunk a charge here or there. But in the process they’re going to look like loony-bins, sniffing around in a guy’s basement for not-really classified information.

Thomas Drake: The Government Hides Its Toys

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As Josh Gerstein just reported, the government has decided to withdraw some evidence against Thomas Drake rather than come up with CIPA substitutions that would give Drake the ability to defend himself. At issue is “NSA’s targeting of a particular telecommunications technology,” which the government wants to hide. To avoid mentioning it, they are now withdrawing four documents entirely and redacting references to the document in two other documents.

In Gerstein’s article, Steven Aftergood cautions that this won’t necessarily help Drake avoid prosecution.

The prosecutors’ decision has echoes of the 2009 Justice Department decision to drop its long-running prosecution of two pro-Israel lobbyists after a series of adverse rulings from a federal judge in Virginia. However, in Drake’s case, no charges have been dropped, just a portion of the proof the government wanted to offer.

“From the government’s point of view, this ruling is not a reason to reconsider the prosecution. They’re not pulling back. They’re simply reordering their case,” said Steven Aftergood, a classified information expert with the Federation of American Scientists.

“In the fantasy of Drake suppoorters, the [judge’s] ruling could have been a pretext for withdrawing the prosecution, as happened in the [American Israel Public Affairs Committee] case but that’s not choice they’ve made. They’ve said, ‘We’ll go ahead and work around that obstacle,'” Aftergood added.

That may well be the case. But I’m curious to see how Drake’s lawyers respond to this. The government has been trying (somewhat unsuccessfully) to exclude documents discussing the relative merits of ThinThread over Trailblazer on relevancy and hearsay grounds, including the IG Report at issue in the case. Mind you, none of them apparently discussed this technology (the government is withdrawing its own exhibits, not objecting on CIPA grounds to Drake’s). And Judge Richard Bennett obviously thought a somewhat revelatory description of this technology was important to Drake’s defense.

Ultimately, after all, Drake is planning to argue that the reason he saved certain documents was to demonstrate the inefficacy (and probably privacy problems) of the government’s plans. By withdrawing these documents–which obviously must have been relevant to the five charged documents–are they hurting Drake’s ability to make this argument?

The Government Asked to Use Silent Witness Rule in Thomas Drake Case

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This document, Judge Richard Bennett’s rulings on the admissibility of a number of documents presented in CIPA hearings, is interesting for several reasons, some of which I may return to. But I wanted to highlight that the government is trying to introduce evidence under a silent witness rule, something I hadn’t seen mentioned before. [Update: Josh Gerstein covered this back in March. I stand corrected.]

In his ruling on item 14, Volume I, Exhibit 11, Bennett writes,

A ruling on the relevance and admissibility of Classified Statements 1 and 2 should be deferred until the Court rules on the government’s request to invoke the silent witness rule. The government agrees that these written statements of its expert witness will be inadmissible if the Court does not invoke the silent witness rule. The defense objects to the use of the silence [sic] witness rule and the introduction of these statements. The parties’ arguments relating to these documents are reserved.

In other words, the government has requested, but Bennett is still considering, the use of the silent witness rule for some evidence in this case.

As Steven Aftergood explained back in 2007 when the government won approval for it in the AIPAC leak case, the silent witness rule basically allows the government to present evidence to the jury that the public won’t see.

Last week, Judge Ellis approved limited use at trial of the so-called “silent witness rule,” an unconventional tactic that permits prosecutors to withhold evidence from the public and to disclose it only to the parties, the witnesses and the jury. Because this amounts to closing the trial, it runs the risk of infringing on constitutional guarantees that trials will be public.

The silent witness rule “is a novel evidence presentation technique that has received little judicial attention is the context of the use of classified information in trials,” Judge Ellis noted. “No published decision has explicitly approved or endorsed use of the rule in this context.”

This ability to do this–to limit what the public can see at the trial–is a tactic the government uses at Gitmo.

I’m just saying.

It’s impossible to tell what the government is trying to introduce. Elsewhere, references to the government’s expert witness seem always to refer to Catherine Murray, their classification expert, whose review of the charged documents are a central dispute in this trial.

That’s interesting, because in a defense filing submitted yesterday, they made it clear that Drake intends to show that information alleged to be classified in this case was introduced in the public domain, thereby proving that it has not been “closely held.”

Indeed, the evidence shows that the allegedly classified information has been officially released and discussed by numerous agencies and officials of the United States government, including NSA, the Director of National Intelligence, the United States Congress, the Department of Justice, and the White House.

The very end of that filing focuses on the government’s expert (note the reference to a singular expert; the connection between the public domain question and the substitutions at issue here is not entirely clear).

To defend himself against these charges, Mr. Drake must be allowed to cross-examine the government’s expert witness and to test her opinion that the documents in Mr. Drake’s home are classified. He must be able to elicit and present evidence that the documents he possessed did not contain national defense information, that he did not believe they contained national defense information, that he did not specifically intend to violate the law when he brought them home, and that his statements to federal agents in regard to the documents were not false.

Now these two issues–the two statements from a government expert who may or may not be Catherine Murray that the government wants to introduce into evidence without letting the country’s citizens see it, and the defense claim that the government is trying to hide Murray’s statements that relate in some way to information in the public domain–may well be entirely unrelated. As I said, Murray’s review of the documents will be at the center of the trial for many reasons.

But it is worth noting that in addition to all the other novel, expansive claims about the government’s ability to keep stuff–even unclassified stuff–secret  in this case, the government is also trying to add yet another layer of secrecy here.

In Thomas Drake Case, Protected Doesn’t Mean Protected

/in /by

Earlier today, we learned that (thanks to Antonin Scalia) the word “suspicion” no longer means what it used to mean.

Now we learn that “protected” doesn’t mean what it used to mean.

As Josh Gerstein reports, the judge in the Thomas Drake case has agreed to let the government protect unclassified information using the Classified Information Procedures Act. But as Drake’s lawyers make clear, the process of substitution is making unclassified information look classified.

Defense lawyers contend the prosecutions proposed substitutions would be obvious to jurors, despite Bennett’s ruling that they they should be “seamless.” Prosecutors say some of the changes will be seamless but others cannot be because they pertain to handwritten notes that can’t be modified without jurors noticing.

Defense lawyers also say that if jurors are aware of the changes, they’ll conclude that the information Drake is accused of mishandling is worthy of being treated as national secrets. “This will signal to the jury that the Court and the government believe information in the document was so potentially damaging to national security that it had to be withheld from the public — the very fact they must decide,” defense attorney Deborah Boardman wrote in a filing Monday.

Most interesting, though, is the Defense observation that one of the documents the government will introduce at trial defines “protected” differently than the government is defining it to claim it must be substituted under CIPA.

The defense has briefed its position on the Court’s decision to impose substitutions for relevant, unclassified information that the government deems “protected,” and we will not reiterate our arguments here. However, we thought the Court should be aware of the fact that NSA, in its employee Security Agreements, defines the term “protected information” in the following manner: “information obtained as a result of my relationship with NSA which is classified or in the process of a classification determination pursuant to the standards of the Executive Order 12958.” Thus, according to an NSA document, which will be a government exhibit in this case, “protected information” is “classified” information. However, the government has led the Court to believe that “protected information” is unclassified information that NSA claims deserves protection. NSA cannot have it both ways. [my emphasis]

That might make sense if language worked the way it’s supposed to. But it appears we’ve entered that stage of late Empire where words don’t mean what they used to mean anymore.