Secrecy News

Court Seals Unclassified Docs in Drake “Leak” Case

Prosecutors in the case of the former National Security Agency official Thomas A. Drake, who is suspected of leaking classified information to a reporter, last week asked the court to block public access to two letters that were introduced as exhibits by the defense earlier this month.  Late Friday, the court agreed to seal the two exhibits.  But they remain publicly accessible anyway.

The exhibits (pdf) describe the classification status of several NSA records that were found in the home of Mr. Drake, explaining why in each case the prosecution considers the records classified.  The defense disputes their classification and denies that Mr. Drake ever retained any classified records at his home.

Mr. Drake’s defense said (pdf) that it intends to introduce testimony at trial “which will include a discussion of the appropriate assignment of classification controls under the Executive Order and the consequences and pervasiveness of inappropriately assigning classification controls.”

To document the classification judgments that it disputes, the defense also filed the two letters from the Justice Department as exhibits on March 11.

On March 16, prosecutors asked the court (pdf) to seal those two records.  “As grounds [for sealing the records], the information contained within the exhibits derives from NSA. As the holder of the privilege for this information, NSA has classified the documents as ‘FOUO’, which means ‘For Official Use Only.’ This means that the information is not for public dissemination. Until such time as NSA downgrades the information to ‘Unclassified,’ the exhibits should not be publicly filed,” prosecutors wrote.

Ironically, this prosecution argument illustrates the confusion about classification policy that prevails at NSA, in the Justice Department and in much of the government.

The NSA could not “classify” the records as FOUO and cannot “downgrade” them to “unclassified” because they are already unclassified.  “Information cannot be classified and FOUO at the same time,” according to the governing DoD regulation 5200.1-R.  “By definition, information must be unclassified in order to be designated FOUO.”

Without waiting for a response from the defense or from other interested parties, Judge Richard D. Bennett of the Maryland District Court granted the prosecution motion and sealed the records.  His March 18 decision on the matter, which was first reported by Politico, was also sealed.

The newly-sealed records remain available, however, on the Federation of American Scientists web site here. Besides being unclassified, these records do not prejudice either the prosecution or the defense, to whom they were originally written.

5 thoughts on “Court Seals Unclassified Docs in Drake “Leak” Case

  1. “so what is the point of sealing stuff that is on the internet?” ….. decora Says:March 21st, 2011 at 12:35 am

    It is a very convenient blunt instrument, decora, to prevent/dissuade intelligence from using alternatively that which they know and/or have discovered and learnt, which may also be something that they have be told. And that is also the case for classification of documents whenever one is in the employ of an agency.

    It is to stop smart folk who may be considerable smarter than folk they are working for, from thinking and going rogue and/or freelance with another agency/service/nation/mob.

    All that it effectively does though is keep sheep under control while the wolves play their games and make a killing and do their dodgy deals with the markets for everything invariably revolves around currency for the control of power.

  2. It’s bureaucracy pretending to force of law. The judge is a dupe or one of “them.”

  3. FOUO is not a classification. Anybody who’s ever held a security clearance would/should know that that. The only valid classifications are “Confidential”, “Secret”, and “Top Secret”. FOUO (“For Official Use Only”) is only an information handling guideline and any information stamped with “FOUO” is, by definition, unclassified. It might be sensitive, but it is not deemed to be potentially damaging to national security. If it were potentially damaging, it would have been assigned an appropriate classification.

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