NSA Tells Former ISOO Director to File a FOIA Request

William Leonard, the former director of the Information Security Oversight Office, served as an expert witness for the defense in the misconceived prosecution of Thomas Drake, in which all felony charges against Mr. Drake were dismissed.  (Mr. Drake pleaded guilty to a misdemeanor count.)

Now Mr. Leonard is seeking permission from the trial judge in the Drake case to publicly disclose and discuss certain National Security Agency documents cited in the charges against Mr. Drake that he says were classified in violation of national policy.

“I believe the Government’s actions in the Drake case served to undermine the integrity of the classification system and as such, have placed information that genuinely requires protection in the interest of national security at increased risk,” Mr. Leonard wrote in a May affidavit seeking permission from Judge Richard D. Bennett to reveal the now-declassified (but still undisclosed) documents. Attorneys for Mr. Drake asked the court to release Mr. Leonard from the protective order that restricts disclosure of the documents, so that he could publicly pursue his criticism of their original classification by NSA.  See “Former Secrecy Czar Asks Court to Release NSA Document,” Secrecy News, May 23, 2012.

But government attorneys said that Mr. Leonard has no standing to request relief from the protective order that was imposed on the NSA documents.  They added that if he wants the documents to be publicly disclosed he should request them under the Freedom of Information Act.

“The problem with Leonard’s claim is that it relies not on injury to him, but instead on a general desire to complain to the press and the public,” the government said in a June 22 response to Mr. Leonard.  Instead of court-ordered release, “the proper alternative… is for Leonard to file a Freedom of Information Act (FOIA) request with the National Security Agency (NSA), which is prepared to act expeditiously upon the request.”

As it happens, I requested one of those documents under FOIA last year, and NSA has not acted on it expeditiously, or at all.

But the government said “The NSA has already prepared FOIA-approved versions of the documents at issue” which involve only minimal redactions.

“The government has no animus toward Leonard or his desire to express his opinion about the documents in question — only an interest in appropriately protecting the sensitive nature of the material and to prevent a flood of similar claims by non-parties in other completed cases,” the government response said.

See also “Complaint Seeks Punishment for Classification of Documents” by Scott Shane, New York Times, August 1, 2011.