Last May, J. William Leonard, the former director of the Information Security Oversight Office, asked a federal court for permission to disclose and discuss declassified National Security Agency documents that had been cited in the prosecution of former NSA official Thomas Drake. The documents represented a particularly “egregious” and “willful” case of overclassification, Mr. Leonard said, that needed to be publicly addressed.
Last month, government attorneys said there was no basis for action by the Court, and they suggested that Mr. Leonard could submit a Freedom of Information Act request to NSA for the documents instead.
Yesterday, Mr. Drake’s attorneys fired back in support of Mr. Leonard, who served as an expert for the Drake defense. They said Mr. Leonard is properly seeking relief from the Court because it was the Court that issued the Protective Order that limits his ability to discuss the issue.
“The Protective Order remains in effect today. It was not voided or mooted when judgment was entered last year. It has not expired,” wrote public defenders James Wyda and Deborah L. Boardman, Mr. Drake’s attorneys. “Although the United States may not take the terms of its own Protective Order seriously, Mr. Leonard does.”
The government’s suggestion that Mr. Drake file a FOIA request is unsatisfactory in two ways, Mr. Wyda and Ms. Boardman wrote. First, NSA has failed to release these documents in response to previous FOIA requests, including one filed by me last year.
“Given NSA’s track record and its failure to respond to prior requests […], Mr. Leonard had no reason to believe his FOIA request for the same document would have been successful.”
But even if NSA did release the documents under FOIA, that would not solve Mr. Leonard’s problem, the defense attorneys explained.
“Even if Mr. Leonard had received the documents pursuant to a FOIA request, he would still be bound by the terms of the Protective Order that prohibit him from disclosing and discussing the documents. It would do Mr. Leonard no good to merely receive the documents pursuant to a FOIA request if he cannot discuss the documents because he is bound by a Court Order that prohibits such discussion.”
The good news, they said, is that NSA has already prepared lightly redacted versions of the documents that are suitable for public release. “These redacted versions are acceptable to Mr. Leonard,” Mr. Wyda and Ms. Boardman wrote.
Now it will be up to the Court to rule.
The deeper question raised by Mr. Leonard’s action — how to respond to “egregiously” mistaken classification actions — remains open.