Drake defense claims "prejudicial and incurable procedural defect."

I don't understand 99% of this legal stuff, but I can understand what an 'incurable defect' is. They are saying the government has screwed up in following court procedures.

Why is it that in these Espionage cases against non-spies, the government always seems to screw up? In Nixon's day, they actually burgled Ellsberg's psychiatrists office. The judge threw the case out of court because of their prosecutorial misconduct. In the Wen Ho Lee case, the FBI substituted lying and misrepresentation in place of solid evidence gathering or consulting experts who understood something about computers and physics. The judge later reprimanded the government severely for it's misconduct. In the Drake case, the government accidentally released a previous 'draft indictment' that wasn't supposed to be released, and then gave the defense "sensitive material" that was marked "unclassified/fouo", which he later had to ask the judge to put a seal on (too bad it had already been put on the Federation of American Scientists' website).

Could it be because FBI agents and DOJ staff know when they are doing a bogus case, and they get distracted, and then sloppy? Are they having shouting matches about what to do? Or quiet whispers in the cafeteria at lunchtime, secretly confiding in each other what a load of BS this is, and how they wish they were out busting real actual criminals?

James Wyda, Drake's public defender, has described the problem in a scathing letter to judge Richard D. Bennett about the government's actions at pre-trial hearings.

"The well-established pretrial process under CIPA has not been properly followed in this case. This has resulted in a prejudicial and incurable procedural defect." . . . "The government . . . attempt[ed] to use the substitution process to redact or alter evidence that it had agreed was relevant and admissible one week earlier. . . . Mr. Drake’s Ability to Defend Himself Has Been Irreparably Impaired."

You don't have to have a law degree to get the gist of that. The government is trying to get all squirrely and mess with the process. I.E. The government is playing dirty tricks and cheating. Government prosecutor William Welch was reprimanded for contempt of court in the Ted Stevens case a few years ago for pulling shenanigans in the courtroom, and a bunch of his team was thrown off the case. One might imagine he would not try to push any boundaries and act a little less adventurous and creative with regards to courtroom procedure. Apparently not.

CIPA, that Wyda was referring to, is the Classified Information Procedures Act. It is a law to make it easier for trials to go forward that have classified information as evidence. This law was supposedly intended to stop 'graymail', in which defendants would threaten to reveal sensitive info at trial and thereby prevent the government from prosecuting them and bringing their cases to a courtroom.

Now, the defense claims, the CIPA procedure has been used to basically 'surprise' them with the governments unusual notion that it should be allowed to redact and hide not only classified material evidence, but unclassified evidence as well - evidence it had just deemed acceptable a week earlier. I don't know a lot about courtrooms or evidence procedures, but that seems like dirty pool to me.

Giving the government the ability to 'redact' unclassified material at trial also seems to go against the principle of a public, open trial as guaranteed in the Constitution and in English common law going back centuries.

The government's main argument is that 1. it's been done before (precedent), in the Smith case and the Rosen case. and 2. Even if material is 'unclassified', it can still be "protected", because of the NSA act of 1959. Fine. Even if that's true, how can you spring it on the defense at the last minute? How is that fair?

The defense has come back against those arguments. Not in a small way, though. They combed through the Smith case and the Rosen case, as well as the Zettl case, and basically argue that the government's reading of those cases is completely wrong. Namely, that the word 'classified' does not mean 'unclassified'. Not only does the law itself specifically use the word 'classified', not 'unclassified', the actual decisions of the judges in those cases refer to 'classified' material, not 'unclassified' material. The mind boggles trying to understand the government prosecutor's perspective here.

US v. Zettl, was about an employee of a phone company who was pilfering government documents as a way to predict what the government would be asking for in the coming year, and get a jump on the competing telephone companies. Rosen was part of the AIPAC case - it was also the first Espionage case against a person who was not a government employee. It was also the first case to fully legitimize the Silent Witness Rule, under judge T.S. Ellis III. But that's another story for another time. And Smith? I have no idea!

But these cases all involved classified materials being used as evidence. And Wyda has Five basic points here.

1. The government screwed up by 'surprising' everyone with this argument during the wrong part of CIPA - this is not in keeping with CIPA law.

2. The judge in the Smith case specifically used the word 'classified', not 'unclassified'.

3. Even 'protected' information is allowed under CIPA, if it is "relevant and helpful to the defense"

4. The NSA Act of 1959 doesn't apply; It's not for use a criminal cases nor in a CIPA case. Even if it did apply, you have to swear in affidavit that the information you are restricting would harm national security. Because thats what the CIPA law says, specifically, in black and white.

5. "Mr. Drake’s Ability to Defend Himself Has Been Irreparably Impaired"

So on the one hand, the government has sprung this totally novel, never before used procedural gimmick, trying to at-the-last-minute decide to hide evidence from the public during the trial. Why is the government trying to hide evidence from the public? As Jesselyn Radack has pointed out at DailyKos - If this information is truly a threat to national security, then why is it unclassified in the first place? And another questions; if it is so important, why wait until the last minute to bring it up?

Radack has described the Drake trial as Kafkaesque. Kafka, especially his book "The Trial", seems to keep coming up in these bogus "national security" situations. Sibel Edmonds, an FBI whistleblower, and Nicholas Merrill, a National Security Letter whistleblower, mentioned the resonance they felt with the book on a podcast. Dr. Wen Ho Lee, in his book My Country Versus Me, also mentions The Trial.

After trying to wade through all of this government mumbo jumbo about CIPA, the Silent Witness Rule, evidence being redacted at the last minute, unclassified information being declared 'classified', and then 'protected', attempting to restrict discussions of Overclassification, Whistleblowing, and newspaper articles, laws being used in illogical and bizarre new ways, etc, it makes sense.

"But K. should not forget that the trial would not be public, if the
court deems it necessary it can be made public but there is no law that
says it has to be. As a result, the accused and his defence don't have
access even to the court records, and especially not to the indictment,
and that means we generally don't know - or at least not precisely -
what the first documents need to be about, which means that if they do
contain anything of relevance to the case it's only by a lucky
coincidence. If anything about the individual charges and the reasons
for them comes out clearly or can be guessed at while the accused is
being questioned, then it's possible to work out and submit documents
that really direct the issue and present proof, but not before.
Conditions like this, of course, place the defence in a very
unfavourable and difficult position. But that is what they intend. In
fact, defence is not really allowed under the law, it's only tolerated,
and there is even some dispute about whether the relevant parts of the
law imply even that."

I know what someone might say; The defense hasn't been prevented from seeing their evidence! That doesn't happen in American courtrooms! Actually, it does.

Consider the case of John Walker Lindh. According to Jim Scanlon, in the Coastal Post of March 2003, "no transcripts of interrogations were ever provided to the defense although Walker was held incommunicado for over a month and interrogated under unknown conditions. Only edited summaries were provided." I am not familiar with the trial and do not know what procedural justification they used for this. But it could have come straight out of Kafka. The defendant wasn't allowed to see a transcript of his own words.

Another case involved Ahmed Omar Abu Ali in 2005. The government gave evidence to the judge and jury that it did not allow the defense to see; they claimed the Silent Witness Rule allowed them to do this. A judge approved of this. A higher court later threw out this use of the SWR as unconstitutional. Ali was later convicted of aiding Al Qaeda. Oh, did I mention his case was based on evidence obtained in Saudi Arabia, where he was allegedly tortured? And that this evidence was admitted by the judge?

Yes, yes. "But they were terrorists". As the Drake case files prove, every bend and rupture of the law used by the govermnent against suspected terrorists, will eventually be used against everyone else. Many, many of the motions that the prosecution has filed in the Drake case cite terrorism cases as precedent. "Oh, but Drake leaked stuff. If you don't leak stuff, you're OK". Drake didn't leak anything. He talked to a reporter about unclassified information. If Drake isn't safe, then nobody is safe. Like Jane Mayer said in the New Yorker, a conviction of Drake would set a precedent in which journalists could be prosecuted as spies.

Anyways. Curiouser and Curiouser.

Post script:

Wen Ho Lee's book also describes his own evidence being 'hidden' from him; they took a bunch of the program code he had worked on his whole life, and gave him an Espionage count for various tapes holding that code. Then they tried to prevent him from seeing that code before trial! The judge nixed that. Thank god for the Separation of Powers.


Defense Response to Govt Position on CIPA, James Wyda, Public Defender, May 19, 2011, from Federation of American Scientists website.

The Trial, Franz Kafka, Gutenburg.org, Translated by by David Wyllie

Boiling Frogs: Nick Merrill, Another Innocent Victim of the Patriot Act , with Sibel Edmonds and Peter B. Collins, FEBRUARY 18, 2011, Boiling Frogs podcast

Protecting Classified Information and the Rights of Criminal Defendants: The Classified Information Procedures Act Edward C. Liu , Todd Garvey , March 31, 2011, Congressional Research Service, posted on the Federation of American Scientists website.

Kafka: Gov't Tries Barring Newspaper Articles, Whistleblowing & Over-Classification at Drake Trial by Jesselyn Radack, DailyKos

Letter From Washington By Jim Scanlon. March, 2003, Coastal Post, Marin County, California

Three Ring Government, Schoolhouse Rock

US government documents are public domain, so how can they be 'things of value'?

In the government's subpoena of an unknown Boston area person (Cambridge, to be exact) who was allegedly involved in Wikileaks, there are four charges, as follows:

One: Conspiracy to commit Espionage: 18 USC 793(g)

Two: Conspiracy to violate the laws of the US: 18 USC 371

Three: Violating the Computer Fraud and Abuse Act (Computer Espionage section): 18 USC 1030(a)

Four: Knowingly stealing or converting any record of thing of value of the United States: 18 USC 641

To my amateur eyes, there is an obvious question about charge number four. All documents produced by the US government are public domain. They are not copyrightable. Since they are not copyrightable, they don't, technically, count as 'intellectual property'. That's why wikipedia has government documents sprayed all over it; i.e. the various wiki articles on Nazis and their war crimes often have images of material from the National Archives.

How can you steal something that is not anyones property? How can you apply laws designed for embezzelment to electronic data that is in the public domain?

Coincidentally: The 'embezzlement' charge is also being used against Bradley Manning. Five times.

I am of course completely ignorant of the case law here. But it still seems like a strange, strange situation. This Embezzlement law seems to have been written in the age when spies took sheafs of paper with sensitive information and sold it to the Soviet Union. Does that really relate to someone taking electronic data and spraying it all over the internet?

Is the "value" of the "record" derived from the fact that almost nobody knows about the information, i.e. from it's secrecy? If you make 10 million copies of it and paste them everywhere, does it still have the same "value"?

Of course, just because you give away something after you steal it, doesn't make it not stealing. But in such a case did the defendant really 'convert it for his own use'?

It just seems strange to take this Wikileaks case, which is clearly a case involving the disclosure of state secrets, and stick that Embezzlement charge in there. There are many laws regarding the disclosure or mishandling of state secrets; and Manning has been charged with them, ten times over or more. So why stick the Embezzlement charges in there too?

However. This is not the first time Embezzlement has been used in the same breath as Espionage. Back in the old days, there was a case called the Amerasia case. Amerasia was a journal on the subject of the politics and economics of Asia. This was back in the 1940s. The government got kind of bothered after watching it's classified reports show up almost word for word in this journal. The prosecutors kind of had two problems though: first, the government had broken into Amerasia's offices to "steal back" the documents as evidence. Second, the Espionage Act back then didn't include a prohibition against "retaining" information, only "delivering" it. The "Retaining" language would only come later, with the McCarran Internal Security Act of 1950. This was 1945. In the end they charged the Amerasia people with embezzlement of government property and slapped them with small fines. This outraged some anti-communists, including one Joseph McCarthy, who later made hay of the case as evidence that the government was completely infiltrated by Soviet and/or Chinese agents. But I guess that's another story for another time.


FBI serves Grand Jury subpoena likely relating to WikiLeaks, Glen Greenwald, Salon.com, 2011 Apr 27

Copyright FAQ, CENDI.gov

Charge Sheets of Bradley Manning, Hague Justice Portal, DomCLIC project.

INVESTIGATIONS: The Strange Case of Amerasia, Time, June 12 1950


Like most people I first heard about the NSA whistleblower Thomas Drake case back in mid 2010, I didn't think he was a whistleblower. I thought he was just some guy who had been caught doing something dumb. Some of the news stories quote anonymous sources, saying that it was "hubris" or "corporate IT politics" that Drake had gotten caught up in. I believed that. Part of the problem was that I couldn't understand the basic facts of the case. It was like swimming through algae. I looked at the news stories; many were titled something like 'leak case' or 'leaker', and they had this 'tsk tsk' vibe and they were short on details. Most of them didn't even list the actual specific charges against him; they just said 'leaking'. I don't think any of the headlines said 'Whistleblower'. Now, looking back, I have to wonder; how can the word 'leaker' meet journalistic ethics rules for neutrality, but not the word 'whistleblower'?

Something about those words "Espionage" or "Leaking" seem to switch off the logic center of my brain. Maybe I just don't wan't to support anything that might "harm the troops", maybe I want to be patriotic. When the government says things, I'm inclined to believe them. In the Drake case, I believed what the indictment said... that he shredded documents, that he copy-pasted classified info, that he gave classified information to a reporter, and that he lied about all of it. I was totally, completely, one hundred percent wrong. And now I'm ashamed of myself.

Thanks to dozens more articles in the news media, like Gerstein @ Politico, and by bloggers like Jesselyn Radack @ whistleblower.org / dailykos.com, and the 'Save Tom Drake' facebook page, and now, recently, this new article in the New Yorker, by Jane Mayer, the muddy water is clearing up. The facts are coming to the surface and the sunshine is coming out. Drake's case is a travesty and the government should be ashamed of itself, and so should I for believing the government unquestioningly. This is the new McCarthyism - in fact, the law they are using against Drake is a law that was created during the McCarthy era, something I will describe at the end of this rant.

Thomas Drake carefully and meticulously avoided revealing any sensitive information to the reporter he dealt with. He did not 'leak', he did not 'disclose', and he did not 'deliver' sensitive information.

A bunch of the documents he is charged with 'retaining' were not classified. The government decided to classify them, --after they had indicted him--. The law they charged him with, 18 USC 793(e), doesn't even use the word 'classified', it uses the phrase 'national defense information'. One must ask, then, why the government bothered to 'retroactively classify' the documents, if their classification has no bearing on the case? Judges have specifically declared that classification doesn't matter in a 793(e) case - the jury is supposed to ignore all that and just decide whether it's 'national defense information' or not.

The government says it doesn't want to play the case in the media. Why, then, did the government issue such a damning press release announcing it's indictment of Mr. Drake? Why did the government write an indictment against Mr. Drake with pages and pages of irrelevant details that are completely unrelated to the charges against him?

The government claims that he lied to them about giving classified information to a reporter. That makes it sound like he gave classified information to a reporter. He didn't. See what they did there? They faked me out; making me think he did two bad things at once. But he did neither. He told the FBI that he didn't give classified information to a reporter. Then the FBI said that they think he did, and that therefore he is lying. See how it works?

The government claims Drake lied about copy/pasting classified information. But he copy/pasted material that was not sensitive and not classified. He took great pains to avoid copying anything sensitive. They decided he didn't, and that therefore he was lying. They charged him with 'making a false statement'.

They say he 'deleted documents'. Do you ever delete files off of your computer? That's what Drake did. Drake, the "mad shredder", did the same thing you do every day to free up space on your hard disk. They call that 'obstruction of justice'.

It's like if the city government decided to change the speed limit from 45 to 25, then retroactively fined everyone for speeding. Then, if a driver said they weren't speeding, the government would declare them liars. Then, if a driver reset their trip odometer, which is a normal activity for a car owner, the government would declare that to be "obstructing justice" and "deleting evidence". It is a legal edifice built upon a foundation of logical sand.

If you have ever seen the famous youtube video entitled "Don't talk to the police", this is a perfect case of why you shouldn't. In that video, a lawyer and a police officer detail all the various tricks that prosecutors use to get people caught in lies and confessions. The police officer in the video is an honest cop; he points out that his purpose is not to convict innocent people. Professor Duane points out that some police officers are not as upstanding as Officer Bruch.

The trick they used on Drake is similar to the trick they used on Dr. Wen Ho Lee, as he described in his book "My Country Versus Me". They lied to Lee in order to get him into a room on false pretenses, for example saying they needed his help on another case. Then they went into long, long interview sessions, asking him tons of confusing questions, and often the same question multiple times over the course of several hours or days. If he made a tiny discrepancy in wording they claimed he was lying. If he said he didn't copy classified information, like math equations that can be found in college textbooks, they would simply decide the information was classified anyways and then claim he was lying about it. They used a similar trick against Stephen Jin-Woo Kim, who is also currently fighting an Espionage Act charge for having a conversation with a reporter about whether North Korea might test a nuclear bomb. They simply asked him a bunch of questions and then tricked him into screwing up the facts surrounding the timing of his contacts with the reporter. All three of these men have one thing in common; they were trying to be 'helpful' and cooperate with the FBI. They all got punished for their good intentions.

The FBI raided the houses of several of Drake's friends in 2007; Roark, Binney, and Wiebe. Why? His friends had filed a request for the government to investigate what they felt was waste, fraud, and abuse at the NSA in the Trailblazer program. That was in 2002. Five years later, the raids happened.

The government burst into their homes. Some of them had kids in their homes at the time. One of them claims, in the Mayer article, that government agents pointed a gun at his head, and also at his wife. The government seized their personal information, their computers, etcetera.

I have wondered why we have not heard anything from Roark, Binney, Wiebe, and Loomis all through 2010 and early 2011. The closest I remember is that Roark's lawyers spoke to reporters from Newsweek. Jane Mayer's article is the first I recall of hearing their stories in their own words.

Perhaps, with all the details in Mayer's article, there is an explanation of why we haven't heard anything from them. I cannot know for certain, but if I had been in their shoes, had my house raided, my family threatened, my computers taken, and my friend facing 35 years in prison; I would be frightened. Add these details to the 'draft indictment' against Drake; originally his friends were named in it, their names only dropped in 2009. In the face of all that, I probably wouldn't speak with anyone. But that is just my speculation.

A commenter on slashdot named Geoboxer says the following:

"this surveying and whistleblower retribution essentially blows watergate out of the fucking water."

I don't know if experts would agree, and I am certainly not an expert, but it seems like it's in the same ballpark. Nixon personally ordered the organs of state to illegally spy on, intimidate, harass, and prosecute his political opponents and critics. I haven't personally seen evidence that Bush did anything on that level. However, this Drake case certainly doesn't make things look good. And we are only finding out about the details many many years after it happened. Bush's staff also harassed whistleblowers like Jesselyn Radack and Sibel Edmonds. It is not exactly a record that inspires confidence in Bush's staff nor in Obama's.

One of the hallmarks of Nixon's problems was that his behavior shocked all spectrums of the political rainbow. It is funny then, today, to find various stripes of internet comment boards have similar sentiments about the activity uncovered in Jane Mayer's article. Who is defending the government here, in the public sphere? When you dig through news articles on the Drake case, there are a few people accusing him of hubris or of being angry about corporate politics. Maybe, but the more facts that come out, the less that seems to be correct.

According to Mayer's interviews, Drake and his friends were not simply worried about wasting money. Drake says that what the govermnent was doing made Nixon's group "look like pikers". (piker: One who does things in a small way. Merriam Webster's online). Binney said he should apologize to the American people; his work had been 'twisted'; he believes the government is collecting phone records and email on everyone in the country. They all quit over their concerns. Even Drake's boss, Baginski, number 3 at the agency, quit for similar reasons, according to Mayer. It's hard to believe that this was simply office politics about an IT system.

There are also commenters who say he should have gone through 'official channels', and not 'leak to the press'. That is a nice meme, but he did go through official channels. That is the only reason the government targeted his friends; because they had all gone through the official channel of filing an Inspector General complaint. If they had just 'gone to the press', they probably wouldn't be in trouble because the government coudln't have figured out who they were. Furthermore, he didn't "leak to the press". He didn't "leak" anything. He talked to a reporter about unclassified, non sensitive information.

I feel ashamed now. The government has lied to us. I have been hoodwinked, with apologies to Malcolm X. I am so caught up in this terror scare that I have just started to accept things without applying my God-given brain (such as it is) to the facts. I believed the government, despite the large mounds of evidence in the past few years that the government is often incompetent, dishonest, and prone to use it's power to cover it's own mistakes rather than to protect security. Pat Tillman, Iraq WMDs, the failure of the 9/11 commission to interview key FBI and NSA personnel, etc etc etc. And now, armed agents raiding whistleblowers houses and pulling loaded guns on them and their family. I wish the dozens of FBI & DOJ agents assigned to this whistleblower case had been assigned instead to the FBI's recent raids on Maria Salvatrucha and other drug gangs; the Mexican mafias make Al Qaeda look like rank amateurs.

Oh, I promised to discuss how the law they are using against Mr. Drake came out of the McCarthy Era. His indictment says he is charged with 18 USC 793(e). If you look at the history of this law, US Code Title 18, section 793 subparagraph (e), you will find out that it was created as part of the massive McCarran Internal Security Act of 1950, which was passed during the Second Red Scare. This act was actually vetoed by President Truman, who described it as follows:

"The course proposed by this bill would delight the Communists, for it would make a mockery of the Bill of Rights and of our claims to stand for freedom in the world."

The congress (Democrats I might add) overturned his veto.

793(e) was created basically to enable the government to prosecute people like Whittaker Chambers and Alger Hiss; Mr Chambers had hidden a bunch of state department documents in a pumpkin, and a new Congressman named Richard Nixon had worked on the case against him. It turns out that neither Chambers nor Hiss were prosecutable for Espioange, because the old fashioned Espionage Act from 1917 only applied to people who had 'delivered' documents. So, the congress put this word "retained" into 793(e), thus making the Espionage Act applicable to the next alleged Soviet spy that might come along.

Of course, most of the actual, real Soviet spies, like Ames and Walker, were prosecuted under the old fashioned 1917 Espionage law sections, like (d), without resorting to (e). And it turns out that 793(e) has been used against a lot of non-spies, whistleblowers, and innocents over the years, like Russo and Ellsberg, Morison, Dr. Wen Ho Lee, Rosen, Weissman, and now Thomas Drake.

Anyways. The more facts that come out about the Drake case, the more it seems like the government is not giving us the whole story, and the worse the government's motivations look. I know, that, we are supposed to allow the trial to decide on a lot of these facts. The judge and jury are supposed to decide the outcome. But in the governments statements, it's press releases, and it's indictment, it has tossed away all those considerations, going way, way beyond the actual charges, and painted a picture of the defendant that is simply not matching up with reality as time goes on and the facts are revealed. I was fooled. I believed the government without asking questions. My apologies.

"In the intoxication of youthful successes I had felt myself to be infallible, and I was therefore cruel. In the surfeit of power I was a murderer and an oppressor. In my most evil moments I was convinced that I was doing good, and I was well supplied with systematic arguments. It was only when I lay there on rotting prison straw that I sensed within myself the first stirrings of good. Gradually it was disclosed to me that the line separating good and evil passes not through states, nor between classes, nor between political parties either, but right through every human heart, and through all human hearts. This line shifts. Inside us, it oscillates with the years. Even within hearts overwhlemed by evil, one small bridgehead of good is retained; and even in the best of all hearts, there remains a small corner of evil."

-Alexander Solzhenytsin, Gulag Archipelago, quoted at John Simkin's Spartacus Schoolnet


The Espionage Statutes and Publication of Defense Information, Edgar and Schmidt, Columbia Law Review, 1973, from Federation of American Scientists website

The Secret Sharer, Jane Mayer, New Yorker, May 2011

Never Talk to the Police, Professor James Duane and Officer George Bruch, Youtube / Google Video

I plead the Fif, Dave Chapelle & writers, Chapelle's Show

The New Yorker's Damning Dissection of "Leak" Prosecution of Thomas Drake, Jesselyn Radack, Daily Kos

Save Tom Drake, facebook page

Government Accountability Project, whistleblower.org

Under the Radar, Josh Gerstein, Politico

Former NSA Senior Executive Charged with Illegally Retaining Classified Information, Obstructing Justice and Making False Statements, US DOJ press release, 2010 4 15, as stored at the Federation of American Scientists' website.

Indictment of Thomas Andrews Drake, US DOJ 2010, from the Federation of American Scientists' website

Truman's Veto of the McCarran Act (1950), wadsworth.com

Drake v. Manning? More like United States v. We The People

Down in the thread at Jesselyn Radack's blog about Jane Mayer's New Yorker article on Drake, there is the question: "Is this another Manning case"? It is an interesting question; compare and contrast Manning and Drake. But maybe that's not going far enough. It is enough to make an amateur ranting whhargarbler (like me) go 'hmmmmm'.

If you really want to list all the people that the government has retaliated against in recent years for disagreeing with it, you need to make the list a lot longer, in my humble opinion, than Drake or Manning. There is also Kim, Sterling, Leibowitz, Tamm, Tice, Wright, Vincent, Carmidy, Jones, Rosen, el-Masri, Miller, Weissman, Ford, Lee, Radack, Edmonds, Risen, Rowley, Roark, Binney, Wiebe, Loomis, and on and on. Those are only the people we know about; These people had the chutzpah to either speak out or say 'no' to plea bargains and go to trial. The government can use a lot of types of intimidation before it gets to a lawsuit, and most potential lawsuits are settled out of court. The names we know could just be the tip of the iceberg here. For every one of these there could be many people with similar cases that we dont know about.

The situations are very different in all these cases, so are the motives of the people involved. Some are Democrats, some Republicans, some leaked, some didn't, some had no political opinions at all and just got under the governments crosshairs. None of them are even the slightest bit associated with terrorism. But they have one thing in common. They all underwent massive violations of their civil rights by the government; and the government came up with new and creative ways to bend the law against them. Each case builds on the other; you can see it in the court filings in the Drake case. The prosecutors are using precedents set only a few years ago to slowly lay up bricks into a gigantic wall of executive power.

It is a classic tactic of dictatorial governments to 'divide and conquer' the 'opposition'. For example recently in Belarus, they picked out the libertarian opposition leader, Ramancuk, and threatened his kid. So, he had no choice; he was forced to say some mildly offensive things about the other opposition leaders, many of whom are more socialist types and don't like his economics. This caused a brief fracas amongst the other leaders, who accused him of being 'for the dictator' Lukashenko. It was a waste of energy. The opposition soon realized what had happened and tried to mend the tear. But the government tactic had partially worked. In the end, now, the main opposition figures are all winding up in the same prisons. Candidate Andrei Sannikov just got 5 years. None of the differences in their politics or philosophies mattered, the bars on the jail are the same metal for everybody. Another example are the opposition leaders in Uzbekistan, as described by former UK ambassador Craig Murray in his book, "Dirty Diplomacy".

I'm not saying the US is a dictatorship like Belarus or Uzbekistan. We aren't. But bear with me. Take the Robert Wright case - his advocates tried to play up 'Chinagate' as some kind of worthy cause to support their position... but Chinagate was where the bogus Wen Ho Lee case came from... they don't seem to realize that Wright has more in common with Lee than they might think - two people attacked by the government after they disagreed with it or said 'no' to it, their freedom of speech restricted and their rights violated. A similar pattern IMHO is with the AIPAC case - too many of us out here in internetland believed in an 'Israeli conspiracy', so we looked the other way while the constitution got violated. The Silent Witness Rule, which is now being used against Drake, was actually first successfully pioneered in the AIPAC case against Rosen. The government had tried to use this bizarro anti-5th-amendment rule for years, but they never could get a judge to approve it until 2007 - in the AIPAC case. And now here we are in 2011; the Silent Witness Rule is being used against Drake. Another example here is the whole Valerie Plame thing. Many of us were screaming about 'outing a CIA operative' and laughing at Jon Stewart calling Robert Novak a 'douchebag for freedom'. Well, are we going to laugh at Julian Assange now? Because in the eyes of the law he basically did the same thing as Novak. Novak, rest his soul, never had to face prosecution, but there were people who wanted to use the 'anti-leaking' laws against him, and throw the constitutional concerns by the wayside.

Thomas Drake, as is now clear, did not even remotely violate any law. He didn't even come close. He purposely did not disclose any sensitive information to a reporter - he took great care not to, in fact. The 'classified' documents he held on to were --retroactively classified--. They weren't classified when he took them. That's like if the police changed the speed limit from 45 to 25 and then went and arrested everyone who had been driving at 45 for the past 10 years. Then they say you were speeding, you say "No I wasn't speeding", now they accuse you of "Making False Statements". Then they find out you reset your trip odomoter, which is something everybody does all the time. But they decide it was "Obstructing justice, deleting evidence". These charges are absolutely ludicrous and ridiculous. The material itself is innocuous, harmless stuff. The case is complete, utter garbage.

Bradley Manning, on the other hand, dumped hundreds of thousands of documents from Army databases to some folks on the internet. These two cases, on some level, have nothing to do with each other. I can almost imagine that many supporters of Mr Drake might have a low opinion of Manning's actions. But let's just strip away some of Manning's charges for a moment; he is not only charged with the hundreds of thousands of messages. There are charges on his sheet for leaking the Collateral Murder video - one of his Espionage Act charges in fact is directly linked to this video, and this video alone. Even if you disagree with everything else he leaked, ask yourself if that video, by itself, really harmed the national defense? Did it reveal sources and methods? Would it enable an enemy to develop a countermeasure? It's a gun-camera video from a helicopter shooting people; you can find similar videos all over youtube. Heck during Gulf War I, you could find that stuff being shown off by Colin Powell to the media. If Manning is convicted on that charge, then that single charge becomes a precedent; and that precedent can be used against people in the future who might have thought they had nothing in common with Bradley Manning.

If you lump Drake and Manning together with all the other cases in recent years, they all share something in common. These folks have all been caught up in a net of increasing state control and executive power, a clamp down on traditional notions of freedom of speech and a free press, and a climate of fear in a never ending Global War on Terrorism. When, pray tell, does that war end? When, in fact, will we return to being a free country? Never? Then what is the point of the war?

They aren't the only people caught up in this net. Every traveler at an airport knows what that net feels like. Babies and children are being raised to think it's normal. And, with TSA's new "VIPR teams", travelers at bus stations, train stations, truck drivers at weight stations, and even visitors to the Special Olympics, are now learning what that net feels like too. If they pause for a moment, and let the propaganda melt away from their vision, then perhaps they will see the common cause here amongst these disparate and diverse groups of people that have been painted with the dark brushes of 'leaker' and 'espionage' and 'harmer of the troops'.

The erosion of civil liberties is not a problem of any one group or political class, the ACLU and the other civil liberties groups have been right all along, even if I thought it was weird for them to defend the KKK or Rush Limbaugh or terrorist suspects. Now, in the new America, we are all suspects, and we all are at risk of becoming the next Thomas Drake or Bradley Manning, no matter how innocent or legal we think our actions are.


The New Yorker's Damning Dissection of "Leak" Prosecution of Thomas Drake, Jesselyn Radack, Daily Kos, May 16 2011

The Secret Sharer, Jane Mayer, May 23, 2011

Looking like a fool with classified documents in your pants

"Muckracker Jane" has just blasted the smithereens out of every misconception and knee-jerk espionage meme in the Thomas Drake case with her 10 page meditation in the New Yorker. The Drake case is linked to the Warrantless Surveillance program in ways we had never imagined; and it is much worse than most people thought it was.

Kathleen McClellan of the Government Accountability Project sums it up in a thread on Jesselyn Radack's post at Daily Kos as folows:

"Simultaneous armed raids on the homes of four Inspector General complainants, criminal prosecution of a whistleblower exercising his first amendment right to speak to the press, evisceration of separation of powers with an executive branch official "calling" votes on the Supreme Court" — these are the hallmarks of tyranny, not Democracy."

One of the most 'WTF' moments is reading her examples of other 'notable leakers' who went unpunished, in contrast to Mr Drake who is being treated in an unprecedentedly harsh manner for having basically harmless material. Aside from the 'mishandling' performed by the head of the CIA, John Deutch, and Attorney General Alberto Gonzalez, she recalls this case:

"Sandy Berger, Clinton’s national-security adviser, smuggled classified documents out of a federal building, reportedly by hiding them in his pants". It was treated as a misdemeanor. His defense lawyer was Lanny Breuer—the official overseeing the prosecution of Drake."

From: The Secret Sharer, Jane Mayer, New Yorker, 2011 5 23