Jesselyn Radack says Thomas Drake committed an act of Civil Disobedience

We may wait a long time before we again see someone able to cut through nonsense like Jesselyn Radack of the Government Accountability Project. In her latest DailyKos diary, she fights back against the mass wash of stories circulating in the media about how Drake's case was tossed out because the government didn't want to reveal state secrets. She destroys the myth in short order, by simply restating the facts of the case.

Her blog is here: "Too Classified to Try" Myth in Failed Drake Prosecution, at Daily Kos. June 11, 2011.

She also said that

"He said all along that he never gave classified information to the press, but that he did engage in conduct (I consider it an act of civil disobedience) that merited an NSA administrative penalty . . . , getting fired, or possibly some sort of misdemeanor."

You will search far and wide on the internet before you find such an insightful take on his actions. Many of the media stories so far (though it has only been a day or two) have taken on the tone as though he was a naughty hacker who committed 'unauthorized computer access'. Some of the stories ignore why he did it, and why he risked his job, his livelihood, and his freedom, for all of us, the public:

“I did what I did because I am rooted in the faith that my duty was to the American people" . . . "I knew that you did not spy on Americans and that we were accountable for spending American taxpayer monies wisely. (Quote from him at the Ridenhour prizes website)

In a sense, then, perhaps the Computer Fraud and Abuse Act, 18 USC 1030 (a)(2)(b), under which he pled guilty, is an 'unjust law'. As Martin Luther King put it in Letter from a Birmingham Jail:

"One may want to ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all""(quoted on the Bates College website)

I.E. if the Computer Fraud and Abuse Act 1030 (a)(2), or any other regulation, makes it a crime for a person to obtain information about illegal and immoral activities of the government, then maybe that law needs to be rewritten or eliminated from the law books. This is not to indict the principle of the rule of law, but to affirm it.

Jesselyn Radack's blog ends with a piece of advice to us:

The government's twisted strategy of using the Espionage Act to "send a message" to "leakers"--many of whom are really whistleblowers--is really a back-door way to create a Official Secrets Act while sending a chilling message to those who try to expose government ineptitude and illegality. Be afraid. And be really vigilant.

And if you haven't, and you care about any of this stuff, then you would probably find her book most edifying. It is here:

Thomas Drake and the Right to a Public Trial

They keep on keeping on, saying that they dropped the case to prevent revealing important state secrets.

I find it hard to believe that a memo about 'what a great meeting!' contains important state secrets.

They dropped the case because Bennett wouldn't twist the CIPA and the Silent Witness Rule into some kind of Kafka pretzel to totally strip a defendant of his rights at a public trial - a right which goes back, oh, I don't know, a couple of hundred years in the English Common Law tradition.

Why do they like public trials in jolly old England and it's commonwealths? Because they decided somewhere along the line that the Spanish Inquisition, the Feme, the Star Chamber, and so forth, were simply horrible, but also pointless and had nothing to do with justice.

The government wanted a secret trial. The judge, though granting them a good deal of secrecy, refused to throw out hundreds of years of jurisprudence.

If the public had seen, in full, a document like "Regular Meetings", the DOJ and NSA would have become laughing stocks. It would have embarassed the prosecution, the DOJ, the Attorney General, and the president of the United States. That is why we have public court rooms - to prevent parties from presenting evidence that is no good.

John P. Messina of the University of Chicago Law school has made a web page about the principle of the public trial: Lawyer as Court Reporter in a Virtual Courtroom: Lessons from 600 Years of English Legal History. He describes an old fellow named Jeremy Bentham who lived back in the 1700s. Messina quotes Bentham's "Rationale of Judicial Evidence" (Chapter X 511-606), describing the effect on a witness at a public trial:

"In many cases, say rather in most . . . the publicity of the examination or deposition operates as a check upon mendacity or incorrectness. . . . [a witness] . . . "Environed, as he sees himself, by a thousand eyes, contradiction, should he hazard a false tale, will seem ready to rise up in opposition to him from a thousand tongues; many a known face, and every unknown one, presents to him a possible source of detection, from whence the truth he is struggling to suppress, may, through some unsuspected channel, burst forth to his confusion.”

The United States followed the tradition of the public trial in the creation of the Sixth Amendment of the Constitution. But it went further than that, creating case law to back up the constitutional principle. Messina quotes the Supreme Court in the Oliver case, from the 1940s, as follows:

"The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, . . . to the excesses of
. . . the English Court of Star Chamber, . . . and to the French monarchy's abuse of the lettre de cachet. . . . All of these institutions obviously symbolized a menace to liberty. In . . . the hands of despotic groups, each of them had become an instrument for the suppression of political and religious heresies in ruthless disregard of the right of an accused to a fair trial. Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power."

That's what was would have happened at the Drake trial. The government would have presented 'substituted' and 'redacted' versions of these documents; like "Collections Sites" and "Regular Meetings", that Drake was charged with 'retaining'. Ashamed of presenting them in public, the government would have had to resort to 'hiding' them at trial. The jury could have seen the documents, but the public would have a confusion of code words and 'substitutions' that would render them unable to follow what the witnesses were actually talking about.

If these documents had been shown, unredacted, to the public, the public would have realized how weak the government's case was. It would have caused an uproar. When the public saw a document with UNCLASSIFIED stamped all over it, and realized the government was trying to claim it was secret national defense information, and send a man to prison for it, they would have been completely outraged. The entire edifice of painting Drake as a leaker would have fallen apart. It would be replaced with the accurate portrait of him as a whistleblower, being persecuted as a "political heretic" (to borrow the Supreme Court's language). Public opinion means still means something, even in dictatorship (ask Mubarak), and especially in a democracy.

Judge T.S. Ellis III, when creating the four part fairness test for the Silent Witness Rule in the AIPAC case, said point blank that it represents 'partially closing' the trial. A closed trial is a secret trial, and a partially closed trial is a partially secret trial. And a partially secret trial is a partially unfair trial. And that is wholly unconstitutional.

That is why the government had to shut down the case. Not to prevent the revelation of government secrets. But because the government couldn't have won the case without cheating. And judge Richard D. Bennett didn't allow them to cheat.


[1] Lawyer as Court Reporter in a Virtual Courtroom: Lessons from 600 Years of English Legal History, by John P. Messina

[2] Govt Says It Will Excise All Reference to a Certain Technology, June 5, 2011, from Federation of American Scientists, Thomas Drake - Selected Case Files

[3] Former NSA official pleads guilty, Josh Gerstein, Politico, Jun. 10, 2011

Thomas Drake is Officially Innocent

Thomas Drake has been officially declared (ok maybe not all the way but might as well be) INNOCENT OF ALL TEN CHARGES AGAINST HIM INCLUDING THE FIVE ESPIONAGE ACT CHARGES.


The government indictment is still doing damage to Mr Drake, though, indicating the power of a single press release, and a handful of badly written, poorly thought out pages that don't even match the law they are charging someone with violating.

The AP just today ran a story saying that Drake was charged with leaking classified information. He never was. There are dozens and dozens of other stories about Drake, because he stared down the government to the last minute and refused to plea bargain with the truth. It's all over the "Main Stream Media" now, articles by the dozens. And a lot of them are still using this bogus language.

Leak. Classified. Charged.

He never was charged with 'leaking'. If you read Jesselyn Radack's book, and you should ( ) you will find out that "Leak" is a very silly word indeed - it has no actual meaning.

It is some kind of trigger to our subconscious, some kind of archetype that we aren't even aware of, that sets off reflexes in our brain that we don't even know about.

That's how cults work. That's how fads work. That is how manias and eras, like the McCarthy era, happen, that we are later ashamed of.

I guess there is still something left out there of human civilization though, because Drake just got off the hook. He is now a misdemeanor convicted "computer misuser". Oh my god, hide your children.

Oh by the way.


Government Accountability Project's Dylan Blaylock has the story.

Aftergood: Withdrawal of exhibits may "set the stage for settlement or dismissal" of Drake case.

Ellen Nakashima of the Washington Post has just written an article citing 'sources' who 'follow the case', that the prosecution against NSA Whistleblower Thomas Drake has just suffered a blow.

The prosecution had to drop some exhibits from it's evidence a few days ago. The Judge disallowed certain redactions to exhibits as they would have been unfair to the defense. The government did not want to reveal state secrets so it simply dropped those exhibits and dropped any mention of a 'certain program' in its proseuction.

That may not seem like a huge deal at first. However, Nakashima's article is claiming that these exhibits are directly connected to some of the 5 Espionage Act counts against Drake. If those exhibits are withdrawn, it might mean that some of those counts might become extremely hard to prove.

Nakashima's article is here: Case against ex-NSA manager accused of mishandling classified files narrows, Ellen Nakashima, with Julie Tate, June 8, Washington Post.

Which Espionage Act charges are which? The exhibits allegedly link up with three documents that Drake had as part of his DoD inspector general office participation, when it was investigating NSA in the early 2000s. These are the charges that Nakashima's article claims might be no longer easily prosecutable.

That means the only two Espionage charges left would be the weakest ones; the first because the document was declassified a few months after his indictment, making it hard for the jury to consider it 'national defense information', and the second because it is marked UNCLASSIFIED in big bold letters, making it even harder to convice a jury that it contains 'national defense information' - the magic phrase that is actually used in the language of the Espionage Act.

Nakashima also interviewed Steven Aftergood, of the Federation of American Scientists, who has blogged about the case continually, and whose website has posted the Drake case files for the past year+. He told her that the withdrawal "changes the whole dynamic of the prosecution and may even set the stage for settlement or dismissal". Though he also cautions the "case isn't over".

Seems almost too good to be true. . . . . . . . . . . . . . . . . .

reference material

Just for reference, some old information.

Below is a summary of information (which by the way, is marked UNCLASSIFIED), that judge Bennett granted the government's request to "seal". It was uploaded to the Federation of American Scientist's website before the seal order, and apparently "sealing" doesn't mean they can ask the FAS to take it down. The abbreviations, NOCTR, CTR, and SLOEC are defined at the bottom of the table.

Part One: A list of documents of the five "willfull retention" charges against Drake

Document Nameclassification Government's argument for classification

"What a Success" Secretreveals technical details of NSA capabilities NOCTR

Note: Classified 'Secret' at time of indictment, but declassified a few months later 2

"Regular Meetings" SecretThe government claims classification as "Secret: reveals covered operations and sources and methods NOCTR".

Defense points out the document has UNCLASSIFIED marked clearly across the top and bottom of the document. 3

"Volume is our Friend" Top Secret reveals technical details of NSA capabilities CTR

Note: Part of DoD Inspector General report that Drake was supposed to have, for his job.5

Secret reveals technical details of NSA capabilities NOCTR, budget info SLOEC

"Trial and Testing" Top Secret reveals technical details of NSA capabilities CTR

Note: Part of DoD Inspector General report that Drake was supposed to have, for his job. 5

Secret reveals technical details of NSA capabilities NOCTR

"Collections Sites" Top Secret reveals physical locations of collections activities, forward deployment of employees, classified technical details of NSA capabilities CTR

Note: Part of DoD Inspector General report that Drake was supposed to have, for his job. 5

Other classified documents related to the trial

NameClassificationGovernments claim for classification

"Shoestring Budget"Top Secret reveals technical details of NSA capabilities CTR

"Buy vs Make"Top Secretreveals technical details of NSA capabilities CTR

Secret reveals technical details of NSA capabilities NOCTR, budget info SLOEC

Confidential personnell strengh SLOEC

"Note Card 1" Secret budget info SLOEC

"Note Card 2"Secretbudget info SLOEC

"TT Notes" Secret budget info SLOEC
Confidential personnel strength SLOEC

"Terrorism Threat" Secret technical details of NSA capabilities, budget info SLOEC

Confidential sources and methods associated with a specific program

"BAG" Confidential reveals a connection between technical details of NSA and a program

"9-11 Commission" Confidential personnel strength, SLOEC


SLOEC: revealing a Specific Level of Effort and Commitment by NSA

NOCTR: not to a degree that adversaries could design or employ countermeasures

CTR: to a degree that adversaries could design or employ countermeasures

Each document is also classified because it had the same information as found in other documents that were classified.

Of course as Jesselyn Radack of the Government Accountability Project has pointed out, a lot of this was classified after being seized from Drake - it's called "retroactive classification". If one reads Dr. Wen Ho Lee's book, you will find similar things were done to him. He later won a million dollar+ lawsuit against the government and several newspapers. The judge in his case excoriated the government and the FBI for misrepresenting the facts and apologized to Lee for the court's treatment of him. That doesn't seem like it will happen in Drake's case, but just because the government says something is 'classified' doesn't necessarily mean it's important.

For example, simply by reading these names you have done something the government did not want you to do. The prosecutors argued this list, by itself, was 'senstivie information' - not the information inside the documents, just their names and the above descriptions. The judge agreed. Nobody should know there is something called "Note Card 1" and that it contains "Budgetary Information". That, according to the government, and judge Bennett, is sensitive NSA information. Even though it is clearly marked UNCLASSIFIED.

If it wasn't for the Federation of American Scientists, the public would know nothing about this.


[1] Document 72, Defense filings,

[2] Jesselyn Radack's DailyKos blog,

[3] Defendant's Reply in Support of Motion to Dismiss Count Two, March 18, 2011, USA v. Thomas A. Drake: Selected Case Files, Federation of American Scientists

[4] My Country Versus Me, Wen Ho Lee and Helen Zia, 2001, Hyperion

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