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Protecting Whistleblowers since 1977

NSA Circles the Wagons: Refuses to Return Whistleblowers' Computers Seized in 2007

Jesselyn Radack, May 15, 2012

National Security Agency (NSA) whistleblowers Thomas Drake, Bill Binney, J. Kirk Wiebe, Edward Loomis, and Diane Roark have been through enough. They were targeted with a federal criminal investigation and subjected to armed FBI raids in July 2007. Binney had a gun pointed to his head as he stepped out of the shower. Drake has the dubious distinction of being the fourth person in U.S. history (and first by the Obama administration) indicted under the Espionage Act for alleged mishandling of classified information.

They have since been forced to sue NSA in an attempt to recoup property the government took in 2007. First, NSA claimed it would take an inordinately long time to perform the "arduous process" of reviewing the seized materials for classified information. (A brief pause to consider the ridiculousness of our nation's massive spy agency needing extra time to go through a few hard drives it has had for over four years). Perhaps the difficulty came because NSA's process involved essentially "word searching" the computers for key terms like "NSA" and "TOP SECRET" to find supposedly classified information.

When the Court tired of NSA's excuses and ordered NSA to actually respond to the whistleblowers' lawsuit, NSA moved on May 11th to dismiss the lawsuit claiming that all the property NSA still has is classified.

NSA's latest claims of secrecy are especially incredible considering NSA couldn't find a single shred of classified information in Drake's home in order to make their Espionage Act case against him stick. The case collapsed in spectacular fashion days before trial when the government dropped all felony charges in exchange for Drake pleading to a minor misdemeanor not involving classified information. Bush's former classification czar (J. William Leonard) said about the Drake case that he had never seen a "more deliberate and willful example of government officials improperly classifying a document." Yet, NSA bizarrely continues to stubbornly claim that there is classified information on Drake's computers.

Even more outrageously – and nonsensically – the Justice Department argues that

Government information, regardless of whether it is classified, is government property,

(emphasis added) and the whistleblowers

cannot, as a matter of law, demonstrate standing to demand the return of any government property that was seized from their homes as it is not their property to demand.

Alert to all federal employees who co-mingle any work and personal information on their personal  computers. According to the Justice Department, those computers all belong to the government. What exactly is the information the computers? When the whistleblowers filed the lawsuit, Wiebe described some of the property the whistleblowers are hoping to get back:

 . . . Wiebe, said the FBI returned four of his computers but still has two, taken from his bedroom and recreation room. He said they contain old photos of his ancestors from Ireland and of his parents from Indiana, along with family recipes for fish chowder from Scotland.

Why circle the wagons over a few old hard drives? Thomas Drake offers some insight in a recent interview with the Washington Spectator:

You have to remember, NSA is an institution, and it preserves its integrity before anything else. Rule number one. It's pathological. It's what I call the deep, dark side of this culture, one that has rarely been discussed. Everything is secret.

It's high time NSA turn its focus away from protecting itself and toward protecting the national security of the United States.