sudden outbreak of common sense

Regarding the trial of NSA whistleblower Thomas Drake, Judge Bennett has just written the following:

"the Court instructs the parties to agree to a stipulation regarding the fact that there is no evidence that Reporter A relied upon any allegedly classified information found in Mr. Drake's house in her articles."1

I guess that blows one of the charges against Drake completely out of the water. Namely, the charge that he lied to the FBI about giving classified information to a reporter4. If the judge says there's no evidence that he ever did xyz, then the government will have a hard time saying he lied about not doing xyz. Because, well, first they would have to prove that he actually did xyz. Which he didn't. Am I making any sense? Am I wrong here?

If they did ever try to prove that he gave her classified information, information that perhaps she perhaps didn't use in an article, or information that perhaps he didn't have in his basement, then they would have to call her to the stand, would they not? Bennett has already said that he doesn't want to go down that 'deep, dark hole'5. Pushing reporters to reveal sources is apparently not something he is a fan of.

Now the question is, if the government knew it had shoddy evidence, why did it even put that charge in the indictment?4 Why did it claim he was "making false statements" in it's press release? 13 So that media groups like Huffington Post and the Associated Press would scream headlines about "Thomas A. Drake, Former NSA Exec, Indicted For Leaking Secrets To Newspaper", which is flat out wrong?6 So that dummies like me would believe it, even if it was blatantly false? To their credit, HuffPo and other media outlets have more recent headlines on the Drake case are less inflamatory and more accurate. 11,12

I don't know what to say. It doesn't give me a lot of confidence in the government prosecutors if this is what it appears to be; a prosecution based on a media strategy instead of on facts about allegedly criminal behavior. Where is Joe Friday when we need him? 7

Oh, by the by. Reporter A is Siobhan Gorman, who was at the Baltimore Sun when Drake gave her unclassified, non sensitive information8. As far as I know, talking to reporters about unclassified information is not a crime in the United States.

And another aside: Drake is but one of the 6 non-spy Espionage Act prosecutions that Obama's administration pushed in 2010-2011 (Kim, Drake, Sterling, Manning, Leibowitz2 9, and Unknown-Cambridge-Wikileaks-Person3). This outstrips basically all presidents before, unless you count the Palmer Raids circa 1919 which relied on the Espionage Act's little amendment, the Sedition Act, which was repealed shortly after passage10.

References

[1] Order Regarding Admissibility of Classified Information, June 1, 2011, Richard D Bennett, US District Court / Northern Maryland

[2] Risen Subpoenaed AGAIN: Journalists & Whistleblowers Under Full Attack, Jesselyn Radack, May 24 2011, Daily Kos

[3]
FBI serves Grand Jury subpoena likely relating to WikiLeaks
, Gleen Greenwald, Salon.com, APR 27, 2011

[4] Indictment of Thomas Andrews Drake, Grand Jury, District of Maryland, April 2010. from FAS.org

[5] NSA Espionage Trial Could Avoid Calling Reporter to Stand By Shane Harris, Washingtonian, 04/05/2011

[6] Thomas A. Drake, Former NSA Exec, Indicted For Leaking Secrets To Newspaper 04/15/10, Associated Press / Huffington Post

[7] Just the facts, ma'am Snopes.com, citing Michael Hayde's "My Name's Friday", Nashville: Cumberland House, 2001

[8] The Secret Sharer, Jane Mayer, The New Yorker, May 23 2011

[9] Justice Department Leakers of Classified Info. Get a Pass by Jesselyn Radack, opednews.com, Jan 21, 2011

[10] Sedition Act of 1918, Wikipedia, citing Stone, Geoffrey R., "Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism" (NY: W. W. Norton & Company, 2004). Also citing Avrich, Paul, Sacco and Vanzetti: The Anarchist Background (Princeton: Princeton University Press, 1991). The article discusses the Sedition Act repeal and the number of prosecutions

[11] Is Thomas Drake, Formerly Of The National Security Agency, An Honest Whistleblower? (reposting of Mayer's New Yorker article, The Secret Sharer) 05/16/11

[12] Why Thomas Drake Is Not an Enemy of the State, Jesselyn Radack, Huffington Post, 5-19-2011

[13] Former NSA Senior Executive Charged with Illegally Retaining Classified Information, Obstructing Justice and Making False Statements, April 15, 2010, Department of Justice Office of Public Affairs, doj.gov

Black is white, right is wrong, and classified is unclassified

The latest two filings on the Federation of American Scientists website regarding the Thomas Andrews Drake NSA Whistleblower case paint a bizarre picture of the governments arguments regarding classified information in the public court of law.

Previously, back in March/April 2011, prosecutors William Welch II and John Pearson argued that a document Mr Drake retained that was marked UNCLASSIFIED, was, in fact, classified, and that Mr. Drake should have known this. Their argument was that the UNCLASSIFIED mark was a mistake; and that somehow Drake knew about this mistake, but disregarded it. This argument is a little hard to understand, but it is at least in the ballpark of reason. One could theoretically contemplate the situation they describe; not that you have to necessarily agree that it applies to Mr. Drake's case. But at least the argument has some kind of wisp of logic to it.

But now, in early May, 2011, Mr Welch and Mr Pearson have taken things way out of the ball park, down the street, and crossed the river. They are in some bizarro paralell universe where basic English doesn't apply anymore. They are now arguing that the Classified Information Procedures Act applies to information that is not classified; and moreover, that a section of the US Code that specifically defines what "classified information" is, somehow was intended to include information that has clearly been determined by government officials to be "unclassified".

I am a simple cave man blogger. I am struggling to comprehend this situation. Let us start with their basic argument, in their court filing from May 9 2011:

"This Court is fully authorized to redact and substitute unclassified, protected information in the context of a CIPA hearing . . . The National Security Agency (NSA) possesses a statutory privilege against the disclosure of information relating to its activities. See Title 50, United States Code, Section 402, Section 6." [0]

So. They want to redact unclassified information, in a Classified Information hearing. Ok. Well, let's look at what the CIPA actually says. Maybe I am just not understanding the law.

Classified Information Procedures Act

TITLE 18 App. > CLASSIFIED > § 1

§ 1. Definitions

(a) “Classified information”, as used in this Act, means any information or material that has been determined by the United States Government pursuant to an Executive order, statute, or regulation, to require protection against unauthorized disclosure for reasons of national security and any restricted data, as defined in paragraph r. of section 11 of the Atomic Energy Act of 1954 (42 U.S.C. 2014 (y)). [1]

Fair enough. CIPA covers information that 'require[s] protection'. It also covers some 'restricted data' related to Atomic Energy. So, maybe they can argue that NSA information 'requires protection'. Then they are arguing that if something is 'protected information', then it's just as good as being "classified information". Now, some unclassified information might be considered 'protected information'. Therefore, the definition of "Classified Information" can include information that is Unclassified. Classified includes things that are Not Classified. Classified is The Opposite of Classified. I am getting kind of confused.

Let me just forget all this for a moment. They also mention this other law; the National Security Administration Act. 50 USC 402. Ok. fine. what does the NSA Act, 50 USC 402, Section 6 say? Maybe this will make more sense.

``Sec. 6. (a) Except as provided in subsection (b) of this section,
nothing in this Act or any other law . . . shall be construed
to require the disclosure of the organization or any function of the
National Security Agency, or any information with respect to the
activities thereof, or of the names, titles, salaries, or number
of the persons employed by such agency.[2]

Oh.. so basically there can be no law requiring disclosure of information about the NSA. What about this 'Except for subsection b' thing? If you look it up, it is basically saying that there is a Disability law that requires some reporting of information about how the NSA is providing for assistance technologies to it's employees who may need it [3][5]. So basically, other than that minor provision, the NSA doesn't have to tell you nothin' about anything it does.

This is kind of hard to understand considering that the NSA has it's own Freedom of Information Act website, where it has been publishing vast quantities of information for several years: http://nsa.gov/public_info/foia Or that James Bamford has written 3 books on the NSA, all of which depended on him getting a ton of FOIA requests granted by the agency and published his first book even though they didn't want him to. Have they spend untold monies creating their FOIA department for no reason? Couldn't they just have said "Here, 50 USC 402, we deny you everything!"?

The government is taking this NSA Act "no disclosure" law, and combining it with the CIPA law, and then claiming someone, together, this means they can take 'protected information' and treat it just like it was 'classified' information, even if it is marked 'unclassified'. Is there any way I can possibly understand this? How can it ever make sense?

Ok. Just to be very generous, I will suspend my disbelief. What if they are arguing that the NSA needs to redact protect information, even some unclassified information, and the CIPA hearing is just a good time during a trial to do that. Could I ever accept that? Maybe. But there is a problem.

Their argument quotes the Classified Information Procedures Act. This act covers information that may be 'protected' by 'executive order' (i.e. Classified). In the same breath, however, it also covers 'Restricted Data' from the Atomic Energy Act. But what does the Atomic Energy Act actually say?

DEFINITIONS . . .

(y) The term “Restricted Data” means all data concerning
(1) design, manufacture, or utilization of atomic weapons;
(2) the production of special nuclear material; or
(3) the use of special nuclear material in the production of energy, but shall not include data declassified or removed from the Restricted Data category pursuant to section 2162 of this title.[8]

What is section 2162 of the Atomic Energy Act?

§ 2162. Classification and declassification of Restricted Data

(a) Periodic determination

The Commission shall from time to time determine the data, within the definition of Restricted Data, which can be published without undue risk to the common defense and security and shall thereupon cause such data to be declassified and removed from the category of Restricted Data.

(b) Continuous review

The Commission shall maintain a continuous review of Restricted Data and of any Classification Guides issued for the guidance of those in the atomic energy program with respect to the areas of Restricted Data which have been declassified in order to determine which information may be declassified and removed from the category of Restricted Data without undue risk to the common defense and security.

(c) Joint determination on atomic weapons; Presidential determination on disagreement

In the case of Restricted Data which the Commission and the Department of Defense jointly determine to relate primarily to the military utilization of atomic weapons, the determination that such data may be published without constituting an unreasonable risk to the common defense and security shall be made by the Commission and the Department of Defense jointly, and if the Commission and the Department of Defense do not agree, the determination shall be made by the President.[6]

Oh my goodness. Not only does the CIPA specifically refer to a law that specifically says that declassified nuclear information is not covered, it also says that you are supposed to 'continously review' classified atomic data and decide if it needs to stay classified or not. Not only that; if there is a disagreement about what should be declassified, the President breaks the tie.

I seem to have a conundrum. To agree with Mr Welch and Mr Pearson's argument about CIPA, you have to close your eyes to the atomic 'restricted data' part of it, and just look at the first part about 'protected information', and pretend they have nothing to do with each other.

In order to do that, though, you have to somehow get your brain persuaded that 'protected information' is somehow worthy of different treatment from atomic 'restricted data' under CIPA. Namely, you have to agree that 'protected information' is vastly more important than atomic secrets; because the atomic secrets law clearly states that you have to constantly review whether declassification is warranted, and once you declassify something, it's declassified. Contrast that with the government argument about 'protected information' - that somehow even declassified information is still to be treated as 'classified'.

Essentially, they are arguing that the handful of documents that Mr. Drake had in his basement are worthy of vastly more protection than the secrets of the atomic bomb. That somehow a few sheets entitled "Great Meeeting Everybody!" are more harmful to our national security than the nuclear diagarams over which the Rosenbergs were executed.

That is pretty hard for this old brain to wrap it's head around. I might as well believe that up is down, the sky is purple, and the Sun goes down in the morning.

I don't feel too awfully stupid, though, for not understanding this stuff. It turns out that Yale Law school graduate and former DOJ lawyer Jesselyn Radack has some issues with this whole hoo-ha as well, i.e.:

"Really? The information at issue could reveal sources and methods? THEN WHY ISN'T IT CLASSIFIED?" [7]

-- Update, June 2011 --

On May 30, Deborah Boardman and the public defender's office pointed out that NSA's own definition of the phrase "protected material" specifically states that it is "classified material". Thus rendering the entire argument of the prosecution completely incomprehensible. [9]. The government is arguing that 'protected information' includes 'unclassified information' when their own definition of 'protected information' specifically says that the phrase applies to 'classified information'. How is the jury going to ever accept this argument? Will it be able to hear the whole story?

References

[0] GOVERNMENT’S MEMORANDUM OF LAW REGARDING APPLICATION OF LEGAL PRIVILEGES UNDER CIPA, May 9 2011, William Welch II and John Pearson, US District Court, Maryland - from the Federation of American Scientists website.

[1] Classified Information Procedures Act, Cornell Law school

[2] Title 50 USC 402, NSA Act, US GPO

[3] NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 1997 , Defense Logistics Agency

[4] DEFENDANT’S RESPONSE TO GOVERNMENT’S MEMORANDUM OF LAW REGARDING APPLICATION OF LEGAL PRINCIPLES UNDER CIP, James Wyda, Deborah Boardman, May 10 2011, US District Court Maryland - from the Federation of American Scientists website.

[5] 1582 Title 10, Cornell Law school

[6] Atomic Energy Act - § 2162. Classification and declassification of Restricted Data, Cornell Law School

[7] Govt. Tries to Create New Secrecy Designation: UNCLASSIFIED, Jesselyn Radack, 2011 May 10, DailyKos

[8] Definitions, Atomic Energy Act, Cornell Law school

[9] Defense Letter on Govt Proposed Substitutions, May 30, 2011, Deborah Boardman, Public Defender. via FAS.org