Leonard commendably addressed this problem of over-classification directly with his former office, and filed a complaint requesting that the DOJ and NSA officials who overclassified the documents in question in Drake's case be held accountable. Such accountability is sadly unprecedented, especially considering that these days allegations of improper retention of classified information yields Espionage Act charges.

Republican-appointed judges have also rebuffed the Obama Justice Department's assertions of secrecy. Scott Horton writes for Harper's that conservative Republican judges have consistently rejected the Justice Department's approach of using the Espionage Act to go after supposed "leakers," who are more often than not whistleblowers, emphasizing Drake's sentencing hearing:

At the sentencing hearing on July 15, Judge Richard D. Bennett, a Republican and a Bush appointee, expressed anger at the Justice Department’s tactics. He praised Drake and described Justice’s management of the case as “unconscionable.” “It was not proper,” he said. “It doesn’t pass the smell test.” He compared the department’s actions to those of the British autocrats whose capricious abuse of power had precipitated the American Revolution.

Also this week, the fairly conservative Seventh Circuit Court of Appeals weighed in for accountability in a lawsuit on behalf of two American whistleblowers who were held incommunicado and tortured. The Seventh Circuit allowed the suit to proceed against former Defense Secretary Donald Rumsfeld. That ruling dovetails on a ruling at the District Court level allowing a similar suit against Rumsfeld to proceed. GAP is co-counsel on that suit brought on behalf of a whistleblower held incommunicado for nine months and never charged with a crime.

These developments – victories in suits against Rumsfeld, bucking the Justice Department's claims of secrecy, and classification experts writing that even a 6-year-old knows what a secret is – should signal to the Obama administration that its policy of "looking forward" to avoid accountability for Bush-era abuses like torture while looking backward to prosecute whistleblowers – in Judge Bennett's works at the Drake sentencing – "does not pass the smell test."


Jesselyn Radack is National Security and Human Rights Director for the Government Accountability Project, the nation's leading whistleblower protection organization.