A federal court heard pre-trial arguments last week in the case of former National Security Agency official Thomas A. Drake, who is charged with unlawful retention of NSA documents. He allegedly relayed some of those documents to a Baltimore Sun reporter, who subsequently wrote stories about NSA waste and mismanagement. At last week’s hearing (pdf), prosecutors and defense attorneys battled over the facts of the case, the scope of the charges, the constitutionality of the Espionage Act statutes, the nature of the evidence that may be presented at trial, and other matters.
In the end, each side got a favorable ruling on the “must win” issues it needed in order to have a chance of success at the actual trial, which is scheduled for June. Judge Richard D. Bennett of the Maryland District Court sided with prosecutors in affirming the constitutionality of both the Espionage Act and the Classified Information Procedures Act, and he declined to dismiss any of the multiple charges against Mr. Drake. But he ruled for the defense in deciding that Mr. Drake could present evidence that he was acting as a whistleblower, and that he could also introduce newspaper articles from the Baltimore Sun reflecting his input.
The arguments themselves were at least as interesting as the resulting decisions, and they recapitulated many longstanding disagreements about using the espionage statutes to prosecute leaks. “Both sides have presented excellent legal briefings…, and the quality of the legal argument is obvious for all to see,” said Judge Bennett.
The court rejected defense motions arguing that the espionage statutes were unconstitutionally vague or overbroad, and also refused to dismiss five counts against Mr. Drake charging him with unlawful retention of information protected by the Espionage Act.
But crucially for the defense, the court ruled that “the fact that your client was acting as a whistleblower” could be introduced at trial because it relates to the question of the defendant’s “intent.” To gain a conviction, prosecutors must prove that the defendant acted with specific intent to violate the law. (The court also admitted an amicus brief [pdf] prepared by the Government Accountability Project which argued that Mr. Drake’s whistleblower role was entitled to First Amendment protection.)
And the court granted a defense motion to introduce certain newspaper articles, over prosecution objections. “We need to be able to the show the jury that none of the classified information that the Government alleges they found in our client’s home is in the articles,” defense attorney James Wyda said.
However, Judge Bennett indicated that former Baltimore Sun reporter Siobhan Gorman, who wrote the news stories involving information she allegedly obtained from Mr. Drake, would not be called to testify. “We’re not going down the path of having reporters called to the witness stand, because, you know, I’m not inclined to incarcerate a reporter who asserts a privilege,” the judge said. “That’s the last thing we need right now…. To the extent that we even think about calling a reporter to the witness stand, I think we’re really going down a deep, dark hole here in terms of how this case would proceed and assertions of privilege and everything else.”
Prosecutors defended their proposal to employ the so-called “silent witness” rule, by which some evidence would be presented to a jury but not revealed in open court. That would be tantamount to closing the trial, objected defense attorney Deborah L. Boardman, and would place the defense at a significant disadvantage. “It is fraught with constitutional peril,” she said, “and the practical problems associated with it are incalculable.” The court deferred a ruling on that question.
A copy of the transcript of the March 31 hearing on pre-trial motions in USA v. Thomas Drake was obtained by Secrecy News.
Before Mr. Drake’s trial begins, the court must hear arguments and issue rulings on the classified information (or agreed-upon substitutes for it) that may be introduced at trial under the provisions of the Classified Information Procedures Act. The Congressional Research Service recently prepared an overview of that statute. See “Protecting Classified Information and the Rights of Criminal Defendants: The Classified Information Procedures Act” (pdf), March 31, 2011.
Next week, Mr. Drake will be awarded the “Ridenhour Prize for Truth-Telling” from the Nation Institute and the Fertel Foundation.
The Whistleblower Protection Enhancement Act (S.743), which would extend whistleblower protection to intelligence community employees, was introduced in the Senate yesterday.