Prosecutors in the case of the former National Security Agency official Thomas A. Drake, who is suspected of leaking classified information to a reporter, last week asked the court to block public access to two letters that were introduced as exhibits by the defense earlier this month. Late Friday, the court agreed to seal the two exhibits. But they remain publicly accessible anyway.
The exhibits (pdf) describe the classification status of several NSA records that were found in the home of Mr. Drake, explaining why in each case the prosecution considers the records classified. The defense disputes their classification and denies that Mr. Drake ever retained any classified records at his home.
Mr. Drake’s defense said (pdf) that it intends to introduce testimony at trial “which will include a discussion of the appropriate assignment of classification controls under the Executive Order and the consequences and pervasiveness of inappropriately assigning classification controls.”
To document the classification judgments that it disputes, the defense also filed the two letters from the Justice Department as exhibits on March 11.
On March 16, prosecutors asked the court (pdf) to seal those two records. “As grounds [for sealing the records], the information contained within the exhibits derives from NSA. As the holder of the privilege for this information, NSA has classified the documents as ‘FOUO’, which means ‘For Official Use Only.’ This means that the information is not for public dissemination. Until such time as NSA downgrades the information to ‘Unclassified,’ the exhibits should not be publicly filed,” prosecutors wrote.
Ironically, this prosecution argument illustrates the confusion about classification policy that prevails at NSA, in the Justice Department and in much of the government.
The NSA could not “classify” the records as FOUO and cannot “downgrade” them to “unclassified” because they are already unclassified. “Information cannot be classified and FOUO at the same time,” according to the governing DoD regulation 5200.1-R. “By definition, information must be unclassified in order to be designated FOUO.”
Without waiting for a response from the defense or from other interested parties, Judge Richard D. Bennett of the Maryland District Court granted the prosecution motion and sealed the records. His March 18 decision on the matter, which was first reported by Politico, was also sealed.
The newly-sealed records remain available, however, on the Federation of American Scientists web site here. Besides being unclassified, these records do not prejudice either the prosecution or the defense, to whom they were originally written.
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