Classification Complaint Arising from Thomas Drake Case Dismissed

03.19.13 | 5 min read | Text by Steven Aftergood

In July 2011, J. William Leonard, a former director of the Information Security Oversight Office (ISOO), took the extraordinary step of filing a formal complaint with the Office he once led charging that a document used to indict former NSA official Thomas Drake under the Espionage Act had been wrongly classified in violation of the executive order on classification. (“Complaint Seeks Punishment for Classification of Documents” by Scott Shane, New York Times, August 2, 2011; “Ex-federal official calls U.S. classification system ‘dysfunctional'” by Ellen Nakashima, Washington Post, July 21, 2012)

Last December, in a newly disclosed response, John P. Fitzpatrick, the current ISOO director, concluded that Mr. Leonard’s complaint did not warrant the sanctions that Mr. Leonard had urged.  Neither the original classification of the NSA document, titled “What a Wonderful Success,” nor its continued classification “rise to the level of willful acts in violation of the Order,” Mr. Fitzpatrick wrote in his December 26, 2012 response.

With that, the matter was officially closed.  But the divergent views underlying the complaint remain unresolved and continue to fester.

“I have devoted over 34 years to Federal service in the national security arena, to include the last 5 years of my service being responsible for Executive branch-wide oversight of the classification system,” Mr. Leonard wrote in his 2011 complaint. “During that time I have seen many equally egregious examples of the inappropriate assignment of classification controls to information that does not meet the standards for classification; however, I have never seen a more willful example.”

But Mr. Fitzpatrick said that having reviewed the original classification of the document as well as its continued classification, “I find no violation in either case.”  In fact, he noted, “NSA discontinued the classification of the document in question” during the course of the Drake case.

“The content and processing of the document fall within the standards and authority for classification under the Order and NSA regulations,” Mr. Fitzpatrick wrote.  That doesn’t make them immune to criticism, he wrote, but it means that their classification does not “rise to the level of willful acts in violation of the Order.”

Mr. Leonard was not persuaded.  In an email to Mr. Fitzpatrick after the complaint was dismissed, he said he was not overly concerned by the original classification of the document, “which although improper was, by all appearances, a reflexive rather than willful act.”  Nor, of course, was he troubled by the eventual declassification of the document.

But “What I did and continue to take issue with is that in between those events, senior officials of both the NSA and DoJ made a number of deliberate decisions to use the supposed classified nature of that document as the basis for a criminal investigation of Thomas Drake as well as the basis for a subsequent felony indictment and criminal prosecution.”

Not only that, Mr. Leonard said, but DoJ and NSA officials justified the classification after the fact by claiming the document “reveals… a specific level of effort…” concerning a classified activity, and that that assertion was “factually incorrect.”

Mr. Fitzpatrick said he had no basis to comment on the Drake case per se.  “That is not my purview.”

“I do think it important to note that ISOO’s authority to handle the complaint pertains to classification actions authorized under the Order.  It does not extend to investigative or prosecutorial decisions made under other authorities,” Mr. Fitzpatrick told Secrecy News yesterday.

But he added that “To conclude that the single document cited in the complaint was the primary basis for an investigation and prosecution is, in my view, too narrow a reading of the facts of the case. When building such cases, agencies make decisions to reduce the risk of exposing national security information.  This influences their selection of which documents and evidence to place in the public record.  These are matters of investigative and prosecutorial discretion whose results are determined in court.  Neither those results, nor opinions about the relative merits of mounting a case, recast the original classification action as sanction-worthy.”

Mr. Leonard highlighted the striking fact that no one has ever been sanctioned for abuse of classification authority, and he told Mr. Fitzpatrick that the present case was a missed opportunity.

“Accountability is crucial to any system of controls and the fact that your determination in this case preserves an unbroken record in which no government official has ever been held accountable for abusing the classification system does not bode well for the prospect of real reform of the system,” Mr. Leonard wrote.

Why indeed has there never been any accountability for classification abuse?  Mr. Fitzpatrick said “This goes to the cultural aspects of national security information control, where the premium is placed on protection and avoidance of inadvertent disclosure.  The other side of that coin — I would call it simply overclassification — is less generally policed against.  Its ill effects are felt in the cumbersome processes associated with declassification review and the persistent backlogs and slow processes that characterize the system.”

Mr. Leonard went further in a thoughtful but scathing presentation at a panel sponsored by the Brennan Center for Justice on March 14 (beginning at 36:25), in which he first disclosed the ISOO response to his complaint. He said, “I’ve come to the conclusion that the executive branch is both incapable and unwilling to achieve real reform in this area.”

Mr. Fitzpatrick said that, for his part, he retained a degree of hope that meaningful changes to secrecy policy could still be achieved.

“There are some essential elements needed to bring about reform, and they hard to come by,” he said via email. “The first and most important is an unambiguous call for change from senior leadership.  That mandate must promise commitment and describe specific outcomes the change is meant to bring about.  Examples would include: reduce classification; expedite declassification; improve access to declassified historical Formerly Restricted Data.  Given that inter-agency cooperation is needed to address these issues, nothing short of a White House-directed effort is likely to succeed in making this kind of reform happen.  This belief underlies the [Public Interest Declassification Board‘s] primary recommendation from their recent report [namely, to establish a White House-led steering group on secrecy reform].”

The last impartial word about the Thomas Drake prosecution (though not specifically on classification policy) may be that of the presiding judge, Judge Richard D. Bennett. At the July 2011 sentencing hearing that ended the case, he called the government’s handling of the matter “unconscionable” and abusive.

Thomas Drake himself reflected on his experience in a speech to the National Press Club on March 15.