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.
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