Today's Baltimore Sun has a front-page article describing the surreal battle National Security Agency (NSA) whistleblowers Bill Binney, Thomas Drake, Edward Loomis, J. Kirk Wiebe, and former Congressional staffer Diane Roark are fighting to recoup property the Federal Bureau of Investigation (FBI) took from them back in 2007 in connection with a retaliatory criminal investigation, which culminated in the collapsed Espionage Act prosecution of Drake.
You've probably never heard of a 41(g) Motion to Reclaim Property. That's because, under normal circumstances, at the conclusion of a criminal case - especially a flop as spectacular as the Drake case - the government simply returns property. Instead, NSA has decided to claim that it found information classified beyond top secret on Wiebe's computer. Reminder: Wiebe received immunity from prosecution in 2010 and the government dropped all felony counts against Drake, who pleaded to a misdemeanor of Unauthorized Use of a Government Computer - an offense not involving classified information.
Nonetheless, NSA is stubbornly sticking to the same kind of dubious claims of secrecy that caused the Drake case to crumble. Grow up, NSA. You lost.
News outlets from the Baltimore Sun to Politico to the Carroll County Times have written at length about what should be an uneventful, routine motion. If the information on Wiebe's computer was legitimately classified, the Justice Department surely would have used it in the prosecution against Drake.
Peter Hermann of the Sun writes about what the government has claimed is classified:
The filings by prosecutors do not detail the classified information. But the people who sued the NSA have said their computers shared a 10-page document — dubbed by the government the "Collaborative Paper" — they compiled after they left government service. The document was to be a blueprint for a planned private consulting business to help companies mine information from large databases. . . . Wiebe said one computer might contain notes on a new way of managing that he was pushing while at the NSA.
"It was techy-talk, a disciplined process moving from point A to point B," Wiebe said. "A lot of people didn't pay attention to it. … It was a way to get better engineering practices."
He said the government might be trying to classify the information, not because it's top secret, but to keep him and his group from using it for future endeavors . . .
Despite the government's assertions, the whistleblowers' personal computers are far from packed with secrets:
Wiebe, Drake and others argued in November that in addition to the 10-page document, their computer hard drives contained personal information, such as address books, family recipes, tax returns, graduate school papers and family photos.
However, with all of NSA's capabilities, analyzing the two hard drives and "ten page" document (all which the NSA has had since 2007) is - in the words of NSA Special Agent Tony T. - "an arduous process." Perhaps that's because, according to no-last-name Tony T., the methodology NSA is using to rummage through the hard drives for possibly-classified information involves searching "[s]tandard keyword terms." Predictably, Tony T. can't tell us all of the terms at an "unclassified level," suffice to say,
they include terms such as "NSA" and "TOP SECRET."
That's right, our most technologically-advanced intelligence agency is spending hours trolling J. Kirk Wiebe's two hard drives for potentially classified information by word searching "TOP SECRET." Your taxpayer dollars at work.
For his part, Wiebe does not plan on kowtowing to NSA's unsupported cries of "classified:"
Wiebe has made it clear he wants all his seized computers and hard drives returned. He responded to the email saying he preferred take the issue to court. He notes in his email that he was never charged with a crime.
"In my eyes, the government's actions in this regard have been, and continue to be, unlawful," he wrote. "The government has my property and denied me the use of it. So, for me, there is nothing to negotiate. A wrong has been done. Now it is time to find justice under the law."
My organization, the Government Accountability Project, has advised Binney, Drake, and Wiebe on other whistleblower matters.
Jesselyn Radack is National Security & Human Rights Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.