From: Bill Leonard
Date: December 31, 2012, 4:10:23 PM EST
To: John Fitzpatrick
Subject: Re: Complaint

John:

Thanks very much for your reply. While I appreciate the time, effort and consideration you put into this matter, I am nonetheless disappointed in the substance of your reply. Some of my final thoughts on this matter include:

1. It took almost one and a half years to respond to a rather straightforward yet serious request. I recognize the need for coordination; nonetheless, irrespective of the nature of the reply, responsiveness is essential for a system to be able to be self-correcting.

2. As we discussed when we met in August 2011, I have never taken real issue with the classification of the "What a Success" document in the first instance, which although improper was, by all appearances, a reflexive rather than willful act. Nor did I take issue with its eventual "declassification," which I regarded as NSA simply coming to the proper conclusion, albeit belatedly. What I did and continue to take issue with is that in between those events, senior officials of both the NSA and DoJ made a number of deliberate decisions to use the supposed classified nature of that document as the basis for a criminal investigation of Thomas Drake as well as the basis for a subsequent felony indictment and criminal prosecution. Even after NSA recognized that the document did not meet the standards for continued classification and made the unprecedented decision to declassify an evidentiary document while an Espionage Act criminal prosecution was still pending, senior officials of both the NSA and DoJ still willfully persisted and made yet another deliberate decision to stand by the document's original classification status. I cannot imagine a clearer indication of willfulness on the part of senior government officials to "continue the classification of information in violation" of the governing order through numerous deliberate and collaborative decisions made over the course of years. Based upon my extensive experience, I find the provenance of this document's classification status to be unparalleled in the history of criminal prosecutions under the Espionage Act.

3. You ascribe the merits of my complaint as constituting a mere honest difference in opinion. However, this complaint is more than a question of the document failing to pass what I call the "guffaw test" (i.e. common sense). Rather, as I pointed out in my original complaint and yet you did not address, at the heart of this issue are matters of fact. In justifying the deliberate decision to represent during the Drake prosecution that the "What a Success" email was a legitimately classified document, NSA and DoJ officials did not cite some amorphous classification standard or classification guide - rather they made factual representations which simply were not true and, in one instance, inherently contradictory (i.e. "information contained therein reveals ... a specific level (emphasis added) of effort ..." and that the same information "implied a level (emphasis added) of effort ..."). Keep in mind that these determinations were not made on the fly by NSA and DoJ but were in fact deliberate representations made over a period of time and subsequently further qualified but never disavowed. They were intended to demonstrate that the document met the standards of classification that require the original classification authority to identify or describe the damage to national security that could reasonably be expected to result from the unauthorized disclosure. A familiarity with classification standards is not required to determine that these official representations were on their face factually incorrect when compared with a plain text reading of the "What a Success" email. All too often, representatives of the Executive branch believe all they need to do is simply assert classification rather than adhere to the president's own standards, as apparently was the situation in the Drake case. That attitude must change and I will continue to do all I can to help make it foster change.

4. You comment on the fact that the Order does not grant any individual the authority to handle classified information in a manner contrary to the Order and other pertinent regulations. While reference to alleged actions taken or not taken by Mr. Drake are gratuitous and have no bearing on the merits of my complaint, I nonetheless agree with your sentiment. However, allow me to add my own observations, not only as one of your predecessors but also as the only individual who has played an integral role for both defense teams in the only two Espionage Act prosecutions (Drake and AIPAC) not to result in either a conviction or a plea of guilty. In both instances (in which I provided my services pro bono) my decision to get involved was not to defend the actions of the accused but rather to defend the integrity of the classification system, a highly critical national security tool. I have long held that when government agencies fail to adhere to their responsibilities under the governing order and implementing directive, they in turn compromise their ability to hold cleared individuals accountable for their actions. Accountability is crucial to any system of controls and the fact that your determination in this case preserves an unbroken record in which no government official has ever been held accountable for abusing the classification system does not bode well for the prospect of real reform of the system. This phenomenon, the readily apparent inclusion in the Order of a feckless provision which infers that accountability cuts both ways has once again been proven to be a major source of why most informed observers both inside and outside the government recognize that the classification system remains dysfunctional due to rampant and unchecked over-classification. It is disappointing to note that a genuine opportunity to instill an authentic balance to the system has been forfeited in this instance.

As to your request for my recommendations as to the potential for clearer guidance when the classification status of information is integral to a criminal prosecution, I would recommend requiring coordination with an independent body such as the Interagency Security Classification Appeals Panel. In the two cases I referenced above, the fact that the government did not obtain a criminal conviction under the Espionage Act actually bode well for the integrity of the classification system -- otherwise, the perceived wisdom in the reflexive over-classification of information would have been codified in case law.

Finally, I stand ready to share my experiences and observations with the Public Interest Declassification Board and other fora as seen fit.

Thanks again for the reply, John. While I admire the job you do and the challenges you face, I obviously disagree with the content of your reply. Nonetheless, I am appreciative of the courtesy.

Best wishes for the New Year.

jwl