SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 72
July 29, 2011

Secrecy News Blog: http://www.fas.org/blog/secrecy/

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 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 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 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.

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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