Becoming a fan of the Espionage Act

After reading this:

Marine's Website' document

I am glad there is an Espionage Act. There are a large number of crazy, broke people in the government willing to sell anything to anyone with little or no second thought.

However, I am still baffled by the modern usage of the act; not to indict actual spies, but to indict whistleblowers and people who give background information to reporters.

whistleblower

"Indeed, very few regulators of my acquaintance can give me examples of fraud and embezzlement unearthed by anyone other than a whistleblower"

-Alan Greenspan, The Age of Turbulence, Penguin Press, 2007, p 431

Thomas Andrews Drake case not looking so hot for the government

-- Update May 2011 --

Jane Mayer wrote on Mr Drake's case, in an article entitled "The Secret Sharer" in the New Yorker magazine. The more details come out, the weaker the government's case looks.

-- Update late April 2011 --

This page shouldn't be that high ranked in google. There are many better sites you need to read, written by highly educated, experience, skilled people with a knowledge of the law and government secrecy policy (I am not one of them, I am just an amateur blogger). For example:

Please visit change.org petition to stop the prosecution of Mr Drake

Please visit the Government Accountability Project, Thomas Drake page

Please visit Save Tom Drake, a facebook page with numerous updates

Please visit the Ridenhour Prizes, which has his speech after being awarded the 2011 Truth-Teller Prize

Please visit Secrecy News, by Steve Aftergood of the Federation of American Scientists, along with FAS court filings

Please visit the DailyKos blog of Jesselyn Radack of the Government Accountability Project.

-- Update mid April 2011 --

So it turns out I'm maybe wrong. Intent might not matter on 793(e), depending on various things. Like I said, I'm not a lawyer. 793(e) is a gigantic, run-on sentence, full of bad grammar, and you can't tell what a judge or jury might decide. I don't know.

Secondly, the entire discussion about classification is largely irrelevant; 793(e) only refers to 'national defense' information, nowhere does it use the word 'classified'. It's still bizarre for the government to claim you 'should have known' something was classified even if its marked UNCLASSIFIED. But that's not really the point. What really matters is whether it was 'information relating to the national defense'.

-- original article follows: --

I kind of feel sorry for William Welch, the government prosecutor who has been tasked by persons unknown with putting Thomas Andrews Drake in jail for many many years for what appears to be, from a layman's point of view, the crime of being messy. There are ten charges against the man; 5 extremely serious and 5 others very serious. But at least 7 of them (including the 5 most serious) seem to me, from a layman's point of view, to be rather unconvincing.

The worst charges are 5 counts of 'willfulll retention of classified documents'. Not transferring information, not disclosure. "Willfull Retention". These charges are under the Espionage Act, the anti-spy law. The same Act used to bring down Aldrich Ames, Robert Hannsen (the film Breach), the Walker family, Julius Rosenberg, and several other notorious spy groups. But Drake is not a spy. He is an NSA official who talked to Siobhan Gorman, of the Baltimore Sun, about a gigantic failed NSA boondoggle that cost taxpayers at least a billion (1,000,000,000) dollars; the Trailblazer computer system.

The problem for the prosecution is that none of these five charges inspire confidence in the government's case. 4 of the 5 counts seem dismissable based only on the small amount of evidence one can glean from pre-court filings, and the remaining count seems questionable considering the context of the other documents and facts related to the case.

The first count involves the classified document entitled "What a Success". The problem is that this document was actually declassified a few months after Drake was charged with 'willfully retaining' it. The law might not care about the distinction of timing, but if I were on the jury, it wouldn't seem like this super-important document was actually all that super-important. His house was raided in 2007, in 2010 he is indicted, and in 2010 a few months later the document is declassified. What exactly was this document about that made it so important in 2007 and not so important in 2010? Considering that the entire case is centered around Drake's whistleblowing against the Trailblazer project, which the NSA shut down some time around 2003, it would need a lot of convincing for me to see some major threat from this document.

Counts 3, 4, and 5 are for documents entitled "Volume is our Friend", "Trial and Testing", and "Collections Sites". They were sitting in amongst thousands and thousands of unclassified papers in Drake's basement. I.E., the defense argues that it was an accident. Thus, there is no 'will' so no 'willfull retention', and thus no crime committed. The thousands and thousands of pages were from Drake's work on the Department of Defense Inspector General audit of the Trailblazer / Thinthread programs. Drake had been providing information to the DoD for this audit and studying the matter. Drake had actually been blowing the whistle on this project for years at NSA. That is why he had this massive pile of unclassified paperwork, and that is how the classified documents came to be in his basement; on accident, not on purpose. That is the defense argument.

As a layman, I have to ask myself, is this on the same level of crime as Aldrich Ames, who took massive quantities of cash from the KGB to turn over American spies, who were then killed by the Soviet State? This question would give me pause if I were on the jury.

Thus counts 1, 3, 4, and 5 do not look good. One count is for retaining a classified document that is not actually classified, and 3 counts are regarding 'willfull retention' of documents that were not actually 'willfully retained'. This leaves only one count, the retention of the "Regular Meetings" document, with which the government might have a good case. The government argues this document was marked classified because it "reveals covered operations and sources and methods, not to a degree that adversaries could design or employ countermeasures". I haven't read through all the defense motions so I don't know what they will argue here. However, the problem I would have as a jurist is that there are several other documents that will be presented at trial that seem to be more damaging than this one. They reveal information that -could- allow adversaries to design or employ countermeasures. This 'Regular Meetings' document doesn't do that. So why charge him on this one and not the others?

The defense has argued that in the thousands of unclassified DOD IG audit documents, there is much more sensitive information than in the documents that make up the five counts against Drake. As a jurist, I would find myself asking why the government seems to be classifying a bunch of stuff that is not very sensitive, but unclassifying stuff that is sensitive?

The prosecution has attempted to ban the defense from making this argument, the 'overclassification' argument. As a layperson this doesn't make me think the government's case is strong; rather it makes me think they are desperate. The "Regular Meetings" document would have to have some really explosive stuff in it for me, if I were a juror, to convict Drake under the Espionage Act for having it.

But somehow it doesn't seem like that it does. Why? If the goverment had a really strong case, it would 1. argue that Drake gave information to reporter Gorman, and 2. that Gorman put this information in her Baltimore Sun articles, and 3. that this lead to some harm to come to the nation. The government does not argue any of those things; it might suggest them, it might imply them, but when it came time to actually bring charges, the government balked. It apparantley did not have a strong case, so it went instead with a weak case that will intimidate Drake and others and make people cower in fear. As a layperson, that does not seem like a good way to get a conviction in a courtroom.

In addition to the 5 Espionage Act charges against Drake, there are also 5 lesser, but still very serious, charges. They involve alleged obstruction of justice and making false statements.

Two of the false statements charges are looking like long-shots for the government. One charge is that he told them he didn't have any classified documents in his basement. Well, he thought he didn't. He was mistaken. An honest mistake is not the same thing as making a false statement. Fans of Dick Cheney are intimately familiar with this argument.

Another 'false statement' charge is that Drake told the government he didn't give classified information to Siobhan Gorman. Well, if he did, then why didn't they charge him with doing it? Do they have some kind of proof that he did? Where is the proof that the Baltimore Sun articles contain classified information? There is even a report that a 'draft indictment' of Drake was prepared charging him with 'disclosure' to Gorman, but that this indictment was rewritten and the charge dropped. Why did the Government drop the charge if it had a good case? If the information was so damaging, then what actual damage did it cause, since it was published in the newspaper 4-5 years ago? Has the security of the nation been harmed? As a layman, this logic doesn't make much sense to me.

Lastly the Espionage Act is based around the idea of motive. What was Drake's motive here? Was it to aid an enemy of the nation? As a layman, I would have a hard time accepting that. If he had wanted to aid an enemy of the nation he would have contacted some enemy group, not a journalist. He was not even an anti-government activist like Father Coughlin (charged under the act in 1942). He was a government worker trying to improve the government.

I'm just saying. Think of poor proescutor Welch. He appears to have a tough row to hoe. I certainly wouldn't want to be in his shoes. After the mess with the Ted Stevens case, his bosses appear to have really given him the poop end of the stick, and an awful case to work on. I can't imagine one can really beam with pride for putting someone in jail for talking to a reporter, (without actually charging them with talking to a reporter), and using the anti-spying laws to do it. This is a case that will go down in the history books, at the very least, as an unusual, unprecedented government act, and a turning point in the story of the civil society of the nation.

Links:

USA v. Thomas A. Drake: Selected Case Files, from the Federation of American Scientists

Thomas Drake: An NSA whistleblower we would have cheered during the Bush years Jesselyn Radack of the Government Accountability Project

Despite openness pledge, President Obama pursues leakers, Josh Gerstein, Politco.

Save Tom Drake Facebook page

Some of these links also discuss Stephen Jin-Woo Kim, and Jeffrey Alexander Sterling

Disclaimer: I know almost nothing about the law, and have no expertise whatsoever.

again

BBC reporter -

"you seem very cheerful"

Japanese man -

"family member all safe

company member all safe

will live again"

gardens at liberty

There is a documentary TV show on a Russian TV station NTV about Lukashenko, dictator of Belarus.

youtube link

At 6:38 a picture of protestors comes on the screen. In English, flashes these words

"In gardens at liberty

there are asters and caraway"

I have no idea what this means.

A few seconds later on the video, a journalist apparently puts a needle and thread through his own lip, as a symbolic gesture in front of a crowd.