Handling of Drake Leak Case was “Unconscionable,” Court Said

The government’s treatment of former National Security Agency official Thomas Drake was abusive and akin to acts of British tyranny in pre-Revolutionary War days, said Judge Richard D. Bennett at the July 15 sentencing hearing which concluded the Drake case, one of the Obama Administration’s record number of anti-“leak” prosecutions.  A transcript (pdf) of that hearing was prepared at the request of Secrecy News.

Mr. Drake was originally suspected of leaking classified information to a reporter and had been charged with ten felony counts, all of which he denied.  The prosecution was unable to sustain any of those charges, and the case was settled after Mr. Drake pleaded guilty to a misdemeanor charge of exceeding authorized use of a government computer.  He was sentenced (pdf) at the hearing to a year of probation and 240 hours of community service.

The hearing transcript is a gripping document, with moments of high dramatic tension and unusual poignancy.

Much of the tension arose from the recommendation of the relentless prosecutor, William M. Welch, that Mr. Drake should be fined an additional $50,000 to serve as a deterrent and to “send a message” to other government employees who might be inclined to follow in his footsteps.

Mr. Welch complained that Mr. Drake had “received a $10,000 prize for having been a whistleblower,” namely the Ridenhour award, which was presented to Mr. Drake in April 2011.

Mr. Welch said that Mr. Drake should therefore be fined at least $10,000 in order to repudiate and cancel whatever “profit” and public respect he had gained from his whistleblowing activity, in which he exposed questionable management practices at the National Security Agency.

“He shouldn’t walk away in the sense of a comparison between the fine and this award with any semblance of a notion that he’s profited in any way from his conduct,” Mr. Welch said. “At a minimum, the fine ought to be $10,000, but I would urge the court to impose the $50,000.”

But the judge wasn’t having it.

“There has been financial devastation wrought upon this defendant that far exceeds any fine that can be imposed by me. And I’m not going to add to that in any way,” he said decisively.

Judge Bennett further rebuked the government for its handling of the case.  From the time when Drake’s home was searched in 2007, it took two and a half years before Drake was indicted, “and then over a year later, on the eve of trial, in June of 2011, the government says, whoops, we dropped the whole case.”

“That’s four years of hell that a citizen goes through,” the judge said.  “It was not proper. It doesn’t pass the smell test.”

“I don’t think that deterrence should include an American citizen waiting two and a half years after their home is searched to find out if they’re going to be indicted or not,” Judge Bennett said. “I find that unconscionable. Unconscionable. It is at the very root of what this country was founded on against general warrants of the British. It was one of the most fundamental things in the Bill of Rights that this country was not to be exposed to people knocking on the door with government authority and coming into their homes. And when it happens, it should be resolved pretty quickly, and it sure as heck shouldn’t take two and a half years before someone’s charged after that event.”

Mr. Welch said he was unable to account for the chronology of the case.  “With respect to the timeframe, you know, I can’t explain that to the court.”

Judge Bennett praised all of the attorneys involved in the case, and singled out Mr. Drake’s public defenders, James Wyda and Deborah L. Boardman.

“Your representation of your client has been at the highest levels of professionalism and at the highest levels of legal competence,” he said.

“There are not two lawyers in the country who could have done a better job for you, Mr. Drake, than the two lawyers who represented you here in this case. And I think it’s been a great showing on behalf of the Public Defender’s Office, which is not the least bit of a surprise to this legal community. But to the extent it has become known in any sense nationally it is well deserved because the reputation of Miss Boardman and Mr. Wyda are at the highest level, and I commend both of you for an outstanding representation of your client,” Judge Bennett said.

“And Mr. Drake, as to that, this matter is closed and I wish you the best of luck in the rest of your life.”

Former ISOO Director Seeks to Challenge Secrecy of Drake Document

Although the indictment of Thomas Drake on charges of mishandling classified information has been dismissed, the case continues to generate significant new ripples.

Today, the Drake defense team filed a motion (pdf) to remove the court-imposed restrictions on one of the documents that Mr. Drake was accused of unlawfully possessing so that the purported classification of the document could be formally challenged by one of the defense’s expert witnesses — who is none other than the former head of the organization that oversees the entire classification system.

“The defense respectfully requests an Order of the Court that permits defense expert witness, J. William Leonard, the former Director of the Information Security Oversight Office (ISOO), to file a formal letter of complaint to the current Director of ISOO, John P. Fitzpatrick, regarding the government’s decision to classify and its reasons for classification of the document charged in Count One of the Indictment, entitled ‘What a Success’.”

Subsequent to the April 2010 indictment of Mr. Drake, the document was declassified (but not disclosed) in July 2010.  But the defense position is that it was never properly classified.

“If this case had gone to trial, Mr. Leonard was prepared to testify that the ‘What a Success’ document did not contain classified information and never should have been classified,” the defense motion said.

Therefore, “the defense is seeking an Order of the Court allowing him to disclose the unclassified information for the purpose of filing a complaint with ISOO and to discuss the issues raised in his complaint with any investigating authorities.”

None of this can really help or hurt Mr. Drake, whose case is concluded.  But the latest defense motion could lead to the correction of an error in the classification system.  It might even help to catalyze a broader reconsideration of classification policy at the NSA and elsewhere in government.

20th Anniversary of START

July 31st is the 20-year anniversary of signing of the Strategic Arms Reduction Treaty (START) between the United States and the Soviet Union. The treaty, also known as START I, marked the beginning of a treaty-based reduction of U.S. and Soviet (later Russian) strategic nuclear forces after the end of the Cold War.

START I required each country to limit its number of accountable strategic delivery vehicles (ballistic missiles and long-range bombers) to no more than 1,600 with no more than 6,000 accountable warheads. The treaty came with a unique on-site inspection regime where inspectors from the two countries would inspect each other’s declared force levels. Thousands of other warheads were not affected and the treaty did not require destruction of a single nuclear warhead. START I entered into effect on December 5th, 2001, and expired on December 4, 2009.

Twenty years after the signing of START I, the United States and Russia are still in the drawdown phase of their strategic nuclear forces: START II followed in 1993, limiting the force levels to 3,500 accountable warheads by 2007 with no multiple warheads on land-based missiles; START II was never ratified by the U.S. Senate but surpassed by the Moscow Treaty in 2002, limiting the number of operationally deployed strategic warheads to 2,200 by 2012; The Moscow Treaty was replaced by the New START treaty signed in 2010, which limits the number of accountable strategic warheads to 1,550 on 700 deployed ballistic missiles and long-range bombers by 2018. Like its predecessors, New START does not limit thousands of non-deployed and non-strategic nuclear warheads and does not require destruction of a single warhead.

The Obama administration has stated that the next treaty must also place limits on non-deployed and non-strategic nuclear warheads.

This publication was made possible by a grant from Carnegie Corporation of New York and Ploughshares Fund. The statements made and views expressed are solely the responsibility of the author.

Norway’s Anders Breivik: Biological Weapons

Oslo, Norway
Oslo, Norway
Please visit the full report for further analysis of the treatise and the CBRN weapons discussed within.


Along with other CBRN, Breivik calls for the use of biological weapons (BW) and toxins against the “cultural Marxist/multiculturalist elites,” stressing that “Efforts must be made to obtain [them].”36
Continue reading

ACLU: Congress Must Act to Curb Secrecy

“Congress must take the lead in challenging the laws and practices that have allowed excessive secrecy to become the dominant feature of our national security culture,” the American Civil Liberties Union urged in a new report on government secrecy.

“The excessive secrecy that hides how the government pursues its national security mission is undermining the core principles of democratic government and injuring our nation in ways no terrorist act ever could,” wrote Mike German and Jay Stanley, the authors of the ACLU report.  “It is time for Congress to make the secrecy problem an issue of the highest priority, and enact a sweeping overhaul of our national security establishment to re-impose democratic controls.”

The report provides a fluid account of current secrecy policy, along with a critique from first principles as well as from recent experience.  Highly readable and thoroughly footnoted, the 51 page report covers a spectrum of secrecy issues, from the state secrets privilege to secret law to the role of national security whistleblowers, and a lot more.  It concludes with a menu of recommended reforms that Congress could and, the authors say, should undertake.

The title of the report sums it up:  “Drastic Measures Required:  Congress Needs to Overhaul U.S. Secrecy Law and Increase Oversight of the Secret Security Establishment” by Mike German and Jay Stanley, July 2011.

The report is fundamentally an act of good citizenship.  It identifies a significant problem, proposes a set of potential solutions, and presents a series of arguments about why those solutions should be adopted.  Even readers who do not identify as civil libertarians or do not share the premises of the report are likely to learn something from it.

One may also end up disagreeing with its conclusions or recommendations.  For example, in arguing for a greater congressional role in reforming government secrecy policy, the authors write that “We cannot expect the [executive branch] officials and agencies that benefit from lack of accountability to reform themselves.”  This is logical and makes intuitive sense — but oddly enough, it is not consistently confirmed by experience.

To the contrary, some of the most significant and far-reaching secrecy reforms that have been achieved to date have been the result of internal executive branch actions.  One thinks of the Department of Energy Openness Initiative of the mid-1990s, but also of the declassification of the aggregate intelligence budget, the declassification of the size of the nuclear weapons stockpile, and other “unilateral” executive branch actions.  A proper theory of secrecy policy must account for such counterintuitive moves.

Conversely, an increased role for Congress in secrecy policy under current circumstances might lead to greater secrecy, not less.  The authors sensibly recommend a repeal of the Kyl-Lott Amendment, which effectively prohibited the bulk declassification of historical records.  But the reason a repeal is called for is that Congress enacted such a restrictive measure in the first place, just as it has enacted many other new restrictions on disclosure under the Freedom of Information Act, and similar barriers to public access.  The peculiar congressional affinity for national security secrecy needs to be understood and factored in.

But this is a discussion worth having.

It is certainly true, as the ACLU authors write, that “The Constitution provides ample tools for Congress and the courts to check executive abuses of authority.  Their failure to effectively use these tools leaves these branches of government with much of the blame for the misguided national security policies the executive pursues in secret.”

Book: Defending Congress and the Constitution

Public cynicism about politics in general and about Congress in particular should not be allowed to obscure an appreciation of the vital role of Congress in our system of government, writes constitutional scholar Louis Fisher in his latest book, “Defending Congress and the Constitution.”

“Without a strong Congress, we cannot speak of democracy,” he says.  “Safeguarding individual rights is often assumed to reside almost wholly with the judiciary, but history offers scant support for that position.  Congress frequently takes the lead in defending personal rights and minorities that are not protected in the courts.”

Fisher explores a range of historical and contemporary episodes involving congressional investigations and oversight, the use of budget authority, and the role of Congress in national security policy, including all kinds of lore he gathered over nearly four decades as a senior specialist at the Congressional Research Service.

Fisher recognizes the diminished esteem in which Congress is held by many members of the public and, not coincidentally, the decline in Congress’ own institutional self-confidence.  His intent is to challenge this erosion and to help refurbish the highest traditions of congressional leadership.

“Congress has a good story to tell in defending the Constitution and protecting individual freedoms.  Lawmakers need to tell it.”

In “Defending Congress and the Constitution” (University Press of Kansas, 2011), Fisher hopes to remind readers of that neglected story.

Norway’s Anders Brevik: Weapons of Mass Destruction and the Politics of Cultural Despair

ABOUT THIS REPORT (click to show)

At some point, most security analysts face the dilemma of balancing expediency with analytical thoroughness. Such is the case with Norway’s Anders Breivik. As his victims await burial, Breivik’s treatise—the 1500 page, 2083:

A European Declaration of Independence (click here for PDF link)—became available only a few days ago. While some researchers, mindful of the value of analytical completeness, patiently plod through this massive manifesto, analysts at the Federation of American Scientists (FAS) conclude that the nature of Breivik’s attacks, compounded with the extraordinary content of his treatise, raise questions of such immediate concern that the formulation and release of initial analyses are prudent. We present such an effort here as both a highly formatted blog post and as a preliminary report. The former allows for a quick delivery of our preliminary investigation amid a platform for open discussion of a threat that remains, we believe, largely inchoate. The latter conforms to our professional dedication to robust research and application of various relevant analytical methodologies.

While Breivik’s unprecedented attacks alone warrant profound study, his treatise seeks to portend far greater acts of terror and destruction than those visited upon Norway on July 22nd. However, to date, no substantive effort addresses the document’s detailed exposition of the fabrication, delivery and general merits of chemical, biological, radiological and nuclear weapons (CBRN). The paucity of concern and immediacy revolving around Breivik’s assertions of forthcoming CBRN attacks likely result from two interrelated issues. First, Breivik is incarcerated and will likely remain so for the rest of his life; Breivik himself is no longer a threat. Second, some question his technical acumen with regard to CBRN; even if he were free, according to one putative CBRN expert, “Breivik’s WMD idea is not realistic.”[1] We

largely agree with such conclusions. However, any proper risk assessment must conduct a so-called “assumptions check.” Such an exercise has two primary elements: 1) explicitly identifying conclusions that rely, in part or in whole, on assumptions and 2) identifying and evaluating the consequences should such assumptions prove false.[2] Application of an assumptions check to the Breivik case, we believe, precipitates the need for serious and immediate analyses of the treatise’s content for two primary reasons.

First, Breivik has made claims, through his writing as well as to Oslo District Court Judge Kim Heger, that he is in league with extremist cells and that some of these co-conspirators “are already in the process of attempting to acquire chemical, biological, radiological, or nuclear materials.”[3] While it is likely that Breivik acted alone, we are not comfortable assuming that this is the case. Moreover, given the operational sophistication of his attacks, and, among other salient components in the case writ large, the overall operational security that he maintained for years, it is axiomatic that Breivik’s threats should be considered in great detail. Indeed, as renowned terrorism expert Gary Ackerman has warned, “History is replete with cautionary tales warning against basing threat assessments on static analyses of an opponent’s motivations and capabilities.”[4] In short, it is possible that subsequent attacks—some perhaps even utilizing CBRN—may be forthcoming, and it is therefore prudent for the intelligence communities to carefully consider Breivik’s writings.

Second, our initial analyses of Brevik’s comprehension of the relevant issues surrounding the fabrication and employment of CBRN concludes that he was motivated and capable of credibly pursuing low-end CBRN attacks—specifically those likely to result in mass effect as opposed to mass destruction . As our report details, this is specifically the case with some biological and radiological agents. Should Breivik be part of a cell of violent extremists, it is possible that his confederates share an equal, if not greater, understanding of the technologies underlying certain CBRN. Moreover, they may have access to the necessary agents and technologies necessary to actualize Breivik’s more ambitious stratagems for the employment of CBRN.

We are presently inclined to conclude that Breivik acted alone. Consequently, his warnings of forthcoming CBRN events are likely invalid. However, given the nature of his attacks and the content of his treatise we urge the security community to seriously consider the possibility that cells of violent extremists are linked to Breivik; the pursuit of a CBRN capability—as well as the possibility of radiological and/or biological use—are a possibility.

Blog posts and reports from the FAS Terrorism Analysis Project are produced to increase the understanding of policymakers, the public, and the press about threats to national and international security from terrorist

groups and other violent non-state actors. The reports are written by individual authors—who may be FAS staff or acknowledged experts from outside

the institution. These reports do not represent an FAS institutional position on policy issues. All statements of fact and expressions of opinion contained in this and other FAS-published reports are the sole responsibility of the author or authors.


See “Alleged Norway Shooter Considered WMD Attack, Jihadi Alliance,” ABC News,

July 24, 2011. Available at: http://abcnews.go.com/Blotter/anders-breivik-alleged-norway-shooter-considered-wmd-attack/story?id=14148151


Whether we are conscious of it or not, most of us frequently conduct an

assumptions check. For example, imagine that as you are about to lie down in

bed for a night of sleep you suddenly realize that you cannot be sure if you

locked your car doors. You might temporarily assume you did; however,

you mind quickly assesses the consequences of a faulty assumption.

Whether or not you get up, get dressed, and trudge out to your car is largely

the result of the risk assessment you make should the car be unlocked.


Andrew Berwick [pseudonym for Anders Behring Breivik], 2083 A European

Declaration of Independence, July 2011, 1022.


United States Senate Committee on Homeland Security

and Governmental Affairs Hearing on “Nuclear Terrorism: Assessing the Threat to

the Homeland.” Testimony of Gary A. Ackerman, April 2, 2008, 3.

Available at: http://hsgac.senate.gov/public/_files/040208Ackerman3.pdf

Norway’s Anders Brevik: Weapons of Mass Destruction and the Politics of Cultural Despair

CHARLES P. BLAIR, KELSEY GREGG, AND JONATHAN GARBOSE1)The authors thank Rebecca A. Remy for her valuable research assistance.

 July 27, 2011

Ten years after the events of 9/11, it is often forgotten that high fatality terrorist incidents remain a rarity. Indeed, prior to 9/11 the single deadliest terrorist attack was the 1978 Iranian theatre firebombing perpetrated by Mujahedin-e Khalq (MEK: People’s Majahedin of Iran) with 470 fatalities. Since 1970, only 118 incidents of terrorism have killed more than 100 people—0.12 percent of the 98,000 terrorist events encompassing that four decade span. As the death toll of the July 22 attacks in Norway approaches 100, it is useful to appreciate this fact. In addition to recognizing their uncommonly deadly outcomes, two other features related to the attack are salient. First, significant elements of Anders Breivik’s treatise—the 1500 page 2083: A European Declaration of Independence 2)Andrew Berwick, pseudonym for Anders Behring Breivik, 2083 A European Declaration of Independence, July 2011, hereafter referred to as The Declaration. (click here for PDF link)—address the acquisition, weaponization, and use of chemical, biological, radiological, and nuclear (CBRN) agents or devices against Breivik’s perceived enemies. Second, his ideological platform, said by Breivik to represent his role as “Justiciar Knight Commander for Knights Templar Europe and one of several leaders of the National and pan-European Patriotic Resistance Movement,” is largely informed by European racist ideology that first emerged in the nineteenth century and continues to this day. This report principally evaluates the CBRN elements of Breivik’s treatise. A subsequent report (schedule for release in late 2011) will orient Breivik’s ideological underpinnings within the broader historical milieu of European racist thinking. First, however, it is useful to place Breivik’s attack in perspective.

Notes   [ + ]

1. The authors thank Rebecca A. Remy for her valuable research assistance.
2. Andrew Berwick, pseudonym for Anders Behring Breivik, 2083 A European Declaration of Independence, July 2011, hereafter referred to as The Declaration.

NSA “Declassified” Publicly Available Text on Cryptology

Updated below

Last month the National Security Agency announced the declassification of various historic records as evidence of its “commitment to meeting the requirements” of President Obama’s policy on openness and transparency.  Among the newly declassified records was a 200 year old publication on cryptology.  (“NSA Declassifies 200 Year Old Report,” Secrecy News, June 9, 2011.)

NSA listed the 1809 study as a “highlight” of the new releases in a press statement, and the National Archives featured it in a promotional blog posting.  But upon inspection, it turns out that the newly released document was already in the public domain and freely available online.

Instead of providing cause for celebration or congratulation, the NSA “release” is a disturbing sign of futility and irrelevance in the nation’s declassification program.

The June 8 NSA press statement hailed the disclosure of “early publications on cryptography, including ‘Cryptology: Instruction Book on the Art of Secret Writing’ from 1809.  In fact, the document is a German work and its real title is “Kryptographik: Lehrbuch der Geheimschreibekunst…” by Johann Ludwig Klüber (1762-1837), who was the first Professor of Law at the University of Heidelberg.

According to a June 14 blog post by James Rush of the National Archives, this work was among the German government records that were seized by U.S. forces after the defeat of Germany in World War II, and it found its way into U.S. intelligence files.

Though the NSA press statement seemed to indicate that the full publication was being disclosed, the material that was released by NSA was actually just a 40 page abstract and excerpt of the author’s much longer work.  A copy of what was transferred to the National Archives is now posted here (pdf).

The cover sheet indicates that the document was classified as Secret, and that it was formally declassified on November 12, 2010 by D. Janosek, NSA Deputy Associate Director for Policy and Records, along with a second reviewer who was identified only by his or her initials.

But what neither the National Security Agency nor the National Archives seemed to realize is that not only had the source material never been classified — and so could not properly be “declassified” — but that it was already publicly available.  The full 532 page text of the 1809 study — not just a 40 page abstract — was actually digitized several years ago and published online through Google Books.

Two obvious inferences may be drawn from this episode.  First, there is extravagant overclassification at the National Security Agency, as in many other corners of government.  This means that access restrictions are being imposed on records that do not require or deserve such protection.  Second, there is a lack of effective oversight mechanisms to promptly identify and correct such instances of overclassification.  There are always going to be classification errors, so there need to be robust error correction mechanisms.  Ideally, Google Books would not be one of them.

Update: On August 19, 2011 the NSA issued a supplementary press release (pdf) that added some significant clarifications and contextual information regarding the declassified document. In particular, the NSA noted that the newly released document included a hand-written cryptography example that did not appear in the Klüber book.

New FRUS Volume Declassified After Four Year Review

The latest volume of the State Department’s Foreign Relations of the United States (FRUS) series documents U.S. Mideast policy before, during and immediately after the 1973 Arab-Israeli war.  It was published this month following a four year declassification review that lasted from 2006 to 2010.

Among numerous topics of historic and current interest, the 1200 page volume (pdf) touches glancingly on the issue of Israel’s nuclear weapons program.

“Do Egypt and Israel have the capability to make nuclear weapons?” asked Sen. Mike Mansfield at a November 27, 1973 White House meeting (page 993).  “Israel has the capability to make small numbers,” answered Henry Kissinger.  “Not Egypt.”  (This exchange was also noted by Amir Oren in Ha’aretz on July 22).

The late Admiral Noel A. Gayler, the former NSA director and advocate of nuclear disarmament who died July 14, is included on the list of “Persons” in the new FRUS volume though his name does not appear elsewhere in the text.

An Update from the National Declassification Center

In the past 18 months, the National Declassification Center has completed processing of less than 5% of the 400 million page backlog of 25 year old historical records that are awaiting declassification.  Still, the Center “remain[s] confident” that it will meet the December 2013 deadline set by President Obama for processing the entire backlog.

The Center has just published a new biannual report outlining its progress to date along with a description of current efforts and challenges ahead.  The report notes that of the 18 million pages that have undergone declassification review at the Center thus far, 92% have been declassified and made available to the public.