At yesterday's hearing in the government's retaliatory prosecution of Thomas Drake, a federal judge refused to grant what he generously dubbed an "usual request" from the prosecution to require Mr. Drake's defense team to turn over the names of consulting experts prior to allowing defense experts access to classified information.
If the prosecution had succeeded, it would mean that if the defense decided not to call experts, the prosecution could subpoena them and ask them in front of a jury why they were not testifying for the defense, giving the prosecution an unfair advantage.
The prosecution's utter lack of any valid reason why the prosecuting attorney specifically (as opposed to the government personnel granting the experts' security clearances) needed the defense experts' names confirmed that the attempt to get the names was a blatant -- and now failed -- attempt to use classification rules to gain improper access to the defense strategy.
A Federal District Court-level battle of separation of powers played out at yesterday's public hearing regarding the prosecution's request.
Mr. Drake's attorneys spoke first, emphasizing what the defense team had identified as "a transparent attempt to gain an unfair tactical advantage over the defense," noting that the prosecution's demand for the defense experts’ names to evaluate the experts' "trustworthiness" had no basis in law.
Disgraced Ted Stevens prosecutor William Welch, himself still under investigation, spoke next and maintained his unprecedented request for the defense experts' names despite that (1) the defense’s proposed experts will undergo the appropriate classification reviews from the court and sign MOUs regarding classified information prior to viewing any classified information; (2) the Federal Rules of Criminal Procedure do not require the disclosure of the defense experts’ names; and (3) the Classified Information Procedures Act (CIPA) does not require the disclosure of the defense experts’ names.
Customarily, and for what presiding Judge Richard Bennett said were "obvious reasons," disclosure of the defense experts’ names is only required by the Federal Rules of Criminal Procedure if the defense chooses to call them as testifying expert witnesses, a requirement the defense has telegraphed it will comply with accordingly. Welch conceded his request departed from usual criminal procedure, but maintained that he needed the defense experts' names because this case involved classified information.
Judge Bennett asked Welch to name a single federal judge who had upheld Welch's position in a classified information case. Welch's response:
I can't do that.
Welch fumbled on, despite being on what Judge Bennett implied was shaky legal ground, yet was unable to give any solid reason why the prosecuting attorney, as opposed to the designated Court Security Officer (who works for DOJ and performs the background investigations), would need the defense experts' names. Welch suggested he might have access to some database the Court Security Officer did not, an argument he backed away from when challenged.
Welch then stressed the that the defense experts might not be "trustworthy" or might be under some investigation that the Court Security Officer did not know about. Judge Bennett invited Welch to submit names of individuals under investigation to the Court and the Court Security Officer. Hence, as all of his "concerns" could be addressed using the legal process firmly established in the Classified Information Procedures Act, Welch's request became moot.
The fact that the prosecution had no real reason why it supposedly needed the names only makes clearer that the request was exactly what the defense identified: "a transparent attempt to gain an unfair tactical advantage over the defense." Classification rules should be used to protect national security, but, in Drake's case where the Justice Department is using secrecy rules to criminally prosecute a whistleblower, it's no surprise Welch attempted to manipulate classification rules to obtain a litigation advantage. Thankfully, yesterday the judicial branch functioned as it should: as a check on Executive power.
Jesselyn Radack is Homeland Security & Human Rights Director for the Government Accountability Project, the nation's leading whistleblower advocacy organization. This post originally appeared in her Daily Kos column.