FAS

Overclassification is “Irrelevant,” Drake Prosecutors Say

03.07.11 | 3 min read | Text by Steven Aftergood

Former National Security Agency official Thomas A. Drake, who was charged last year with unauthorized retention of classified information about controversial NSA programs, should not be allowed to argue in court that overclassification is widespread or that he was engaged in whistleblowing in the public interest, government attorneys said last week.

In a February 25 pre-trial motion (pdf), prosecutors asked the Court “for an order barring the defense from introducing any evidence, presenting any defense, or making any argument relating to the legality, constitutionality or propriety of the rules and regulations governing the disclosure of classified information, including any opinion that the intelligence community ‘overclassifies’ information.”

“The government anticipates that the defendant… may claim that the current classification system is overly inclusive and protects too much information.  Alternatively, the defendant may claim that the current classification system is ineffectual or illegal and prevents his ability to air allegations of waste, fraud and abuse to the attention of the public,” the motion stated.

“Any thoughts that the defendant may have had that the current regulatory scheme overclassifies information is [sic] irrelevant.  It does not matter that the defendant may have believed that the current regulatory scheme classified too much information.  His obligation in protecting classified information was to work within the clear set of rules governing the dissemination of potentially classified information.”

Prosecutors went on to argue that their motion to exclude all discussion of overclassification from Mr. Drake’s trial was actually in the best interests of the defendant, because they said any such discussion would reflect badly on him.

“If anything, the defendant’s thoughts that the current classification system overclassifies information would be incriminatory, not exculpatory, because that evidence would tend to show that he did not agree with the clear rules governing the dissemination of classified information and, therefore, willfully brought classified information home with him.”

In a separate motion (pdf) last week, prosecutors also asked the Court to exclude any claims that Mr. Drake’s alleged actions were driven by a need to inform the public.

“The government believes that the defendant may seek to argue or introduce evidence that his conduct was justified or that his claims [about certain NSA programs] were meritorious.  Because of the need to expose NSA waste and abuse regarding Classified Programs A and B, the [anticipated defense] argument proceeds, the defendant’s possession of classified documents was necessary, justified, or well-intentioned, and thus non-criminal.”

“This Court should reject any attempt to introduce argument or evidence on these points,” prosecutors urged.

Meanwhile, the Drake defense filed several substantial motions of its own arguing, among other things, that the espionage statute under which Mr. Drake was charged (18 USC 793e) “is a statute of alarming breadth and little definition” and that it is a poor fit for the actions he allegedly committed.

“Mr. Drake engaged in public criticism.  He was not motivated by private financial gain — he never sold any information.  Instead, he was prompting public debate about waste and inefficiency at NSA…. The Indictment thus describes speech of the highest First Amendment caliber.  The government may not insulate itself from Mr. Drake’s criticism by claiming that the information related to national security,” the defense argued (pdf).

In another pending “leak” case, that of former State Department contractor Stephen Kim, prosecutors last week filed an unyielding rebuttal (pdf) to several defense pre-trial motions seeking dismissal of that case on First Amendment and other grounds.

“To the extent that the defendant’s conduct constitutes speech, that speech is wholly unprotected by the First Amendment,” the Kim prosecutors said.  “Speech used willfully to convey national defense information to any person not entitled to receive it is speech effecting a crime [which is] undeserving of First Amendment protection.”

Also last week, 22 additional charges (pdf) were preferred against Pfc. Bradley E. Manning, including an allegation that he unlawfully downloaded classified information and did “knowingly give intelligence to the enemy, through indirect means” in violation of 18 USC 793e and other statutes.

Collectively, these cases embody an unresolved dispute over the proper understanding of the espionage statutes and their application to the unauthorized handling and disclosure of classified information.

See also “Despite openness pledge, President Obama pursues leakers” by Josh Gerstein, Politico, March 7.

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