The Washington Post used the Freedom of Information Act (FOIA) to obtain one of the documents that formed the Espionage Act case against National Security Agency (NSA) whistleblower Thomas Drake. Former classification czar under G.W. Bush, J William Leonard, was slated to testify as a defense expert for Drake and called the case the most "deliberate and willful example of government officials improperly classifying a document," he had ever seen.
Leonard’s views, outlined in an affidavit, got some support with the release of a memo that formed part of the evidence against Drake.
The once "classified" document (scare quotes around "classified" as none of the information that formed the basis of the Espionage Act counts against Drake was actually properly classified) is now public. Ellen Nakashima of WaPo reported on innocuous information in the document that formed the basis of an Espionage Act charge against Drake for allegedly retaining the document improperly.
Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, also received the declassified memo from the NSA and said its disclosure reinforced questions raised about the prosecution.
“It’s utterly innocuous and practically devoid of meaningful content,” he said of the memo in an interview. “The idea that someone risked decades of prison over this document is an indictment of the agency and its classification policy.”
Leonard echoed those concerns in an e-mail to WaPo:
Leonard, speaking generally, said the system for classifying information is “becoming dysfunctional” and “clearly lacks the ability to differentiate between trivial information and that which can truly damage our nation’s well-being.”
Despite the complete collapse of the Espionage Act case against Drake, and this latest revelation that the prosecution was built on flimsy evidence that never should have been classified in the first place, let alone used to charge someone under the Espionage Act, the Obama administration is pressing ahead full steam in the war on whistleblowers.
The Justice Department was in court on Friday in the case against Central Intelligence Agency (CIA) whistleblower John Kiriakou.
Thomas Drake himself has warned of the similarities between his case and the Kiriakou case, but the government is still determined to aggressively pursue Kiriakou, who blew the whistle on waterboarding and refused to participate in torture, while torture apologists like Jose Rodriguez pontificate publicly about torturing prisoners and resurrect the "just following orders" defense. (Rodriguez should re-read history. The "just following orders" defense was rejected at Nuremberg, as was the "lawyers said it was legal" defense. See U.S.A. v. ALSTOETTER ET AL (The Justice Cases).
For a summary of the Kiriakou motions hearing, read Josh Gerstein's account in Politico.
Kiriakou's defense team flagged difficulties for the Judge, Leonie Brinkema, who warned the Justice Department to be forthcoming with discovery:
The defense attorney, Robert Trout, said the defense may want to talk to reporters to try to figure out how widely known certain facts were that the government claims to be classified. "We can't talk about it in a SCIF [sensitive compartmented information facility] with someone who's not cleared....We've been talking about that problem," Trout told Judge Leonie Brinkema at a pre-trial hearing. . . . .
At one point, Brinkema seemed to be prodding the case towards some sort of pre-trial resolution by noting that the government has significant interests in not having a trial in such a case. She also noted that leak cases (and perhaps classified-information related cases more generally) are often resolved short of trial. "It really does the prosecution no good to hold back your thunder," the judge said, urging prosecutors not just to turn over large numbers of documents to the defense but to make clear exactly how the government plans to prove its case.
Meanwhile, during pre-trial proceedings at Ft. Meade last week, the government fought discovery requests in the case against Army PFC Bradley Manning – who is accused of disclosing information to Wikileaks (including the "Collateral Murder" video).
Don't miss Glenn Greenwald's latest on the hypocrisy of prosecuting whistleblowers while high-level administration officials get away with leaking, and worse (like torture) without accountability.
But the worst part of this whistleblower war, beyond the obvious threats it poses to transparency and a free press, is how purely selective it is. . . . it is only low- to mid-level leakers who are punished by the Obama DOJ, and then only for the crime of embarrassing the U.S. Government rather than glorifying it. High-level Obama administration leakers disclose classified information at will, without the slightest fear of punishment.
Jesselyn Radack is National Security & Human Rights Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.