Secrecy News

Drake Leak Case Raises “Novel” Legal Issues

The pending prosecution of former National Security Agency official Thomas A. Drake, who was alleged to be a source of classified information in a series of newspaper articles about the NSA, will present “novel” legal issues for the court to consider, prosecutors and defense attorneys said in a joint motion last week.

“The indictment raises complex factual and legal issues and novel questions of law relating to, among other things, the retention of classified materials,” they wrote in an April 29 motion (pdf) to waive the right to a speedy trial.

Unlike former DoD official Larry Franklin in the troubled AIPAC case (which was abandoned by the government before trial last year), Mr. Drake was not charged with unauthorized disclosure of classified information.  Instead, he is accused of “willful retention of classified information.”  The precise nature of this offense, and the threshold for culpability in this case, remain to be litigated.

“The prosecution of this case will involve classified documents,” the joint motion stated, and the defense “may involve classified documents,” necessitating that defense counsel obtain the required security clearances.  “The pre-indictment investigation in this case spanned more than two years,” the motion noted, though defense counsel was not appointed until after the indictment (pdf) issued.

A trial date has been tentatively scheduled for October 18, 2010.