SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 22
March 7, 2011

Secrecy News Blog: http://www.fas.org/blog/secrecy/

OVERCLASSIFICATION IS "IRRELEVANT," DRAKE PROSECUTORS SAY

Former National Security Agency official Thomas A. Drake, who was charged last year with unauthorized retention of classified information about controversial NSA programs, should not be allowed to argue in court that overclassification is widespread or that he was engaged in whistleblowing in the public interest, government attorneys said last week.

In a February 25 pre-trial motion, prosecutors asked the Court "for an order barring the defense from introducing any evidence, presenting any defense, or making any argument relating to the legality, constitutionality or propriety of the rules and regulations governing the disclosure of classified information, including any opinion that the intelligence community 'overclassifies' information."

"The government anticipates that the defendant... may claim that the current classification system is overly inclusive and protects too much information. Alternatively, the defendant may claim that the current classification system is ineffectual or illegal and prevents his ability to air allegations of waste, fraud and abuse to the attention of the public," the motion stated.

"Any thoughts that the defendant may have had that the current regulatory scheme overclassifies information is [sic] irrelevant. It does not matter that the defendant may have believed that the current regulatory scheme classified too much information. His obligation in protecting classified information was to work within the clear set of rules governing the dissemination of potentially classified information."

Prosecutors went on to argue that their motion to exclude all discussion of overclassification from Mr. Drake's trial was actually in the best interests of the defendant, because they said any such discussion would reflect badly on him.

"If anything, the defendant's thoughts that the current classification system overclassifies information would be incriminatory, not exculpatory, because that evidence would tend to show that he did not agree with the clear rules governing the dissemination of classified information and, therefore, willfully brought classified information home with him."

In a separate motion last week, prosecutors also asked the Court to exclude any claims that Mr. Drake's alleged actions were driven by a need to inform the public.

"The government believes that the defendant may seek to argue or introduce evidence that his conduct was justified or that his claims [about certain NSA programs] were meritorious. Because of the need to expose NSA waste and abuse regarding Classified Programs A and B, the [anticipated defense] argument proceeds, the defendant's possession of classified documents was necessary, justified, or well-intentioned, and thus non-criminal."

"This Court should reject any attempt to introduce argument or evidence on these points," prosecutors urged.

Meanwhile, the Drake defense filed several substantial motions of its own arguing, among other things, that the espionage statute under which Mr. Drake was charged (18 USC 793e) "is a statute of alarming breadth and little definition" and that it is a poor fit for the actions he allegedly committed.

"Mr. Drake engaged in public criticism. He was not motivated by private financial gain -- he never sold any information. Instead, he was prompting public debate about waste and inefficiency at NSA.... The Indictment thus describes speech of the highest First Amendment caliber. The government may not insulate itself from Mr. Drake's criticism by claiming that the information related to national security," the defense argued.

In another pending "leak" case, that of former State Department contractor Stephen Kim, prosecutors last week filed an unyielding rebuttal to several defense pre-trial motions seeking dismissal of that case on First Amendment and other grounds.

"To the extent that the defendant's conduct constitutes speech, that speech is wholly unprotected by the First Amendment," the Kim prosecutors said. "Speech used willfully to convey national defense information to any person not entitled to receive it is speech effecting a crime [which is] undeserving of First Amendment protection."

Also last week, 22 additional charges were preferred against Pfc. Bradley E. Manning, including an allegation that he unlawfully downloaded classified information and did "knowingly give intelligence to the enemy, through indirect means" in violation of 18 USC 793e and other statutes.

Collectively, these cases embody an unresolved dispute over the proper understanding of the espionage statutes and their application to the unauthorized handling and disclosure of classified information.

See also "Despite openness pledge, President Obama pursues leakers" by Josh Gerstein, Politico, March 7:

DOD CONTRACTORS IN AFGHANISTAN AT A RECORD HIGH

The number of private security contractors employed by the Department of Defense in Afghanistan has reached a new record high, according to DoD statistics in a recently updated report from the Congressional Research Service.

"In Afghanistan, as of December 2010, there were 18,919 private security contractor (PSC) personnel working for DOD, the highest number since DOD started tracking the data in September 2007. The number of PSC personnel in Afghanistan has more than tripled since June 2009," the CRS report said.

"The United States relies on contractors to provide a wide variety of services in Afghanistan and Iraq, including armed security. While DOD has previously contracted for security in Bosnia and elsewhere, it appears that in Afghanistan and Iraq DOD is for the first time relying so heavily on armed contractors to provide security during combat or stability operations."

"Much of the attention given to private security contractors (PSCs) by Congress and the media is a result of numerous high-profile incidents in which security contractors have been accused of shooting civilians, using excessive force, being insensitive to local customs or beliefs, or otherwise behaving inappropriately.

"Some analysts believe that the use of contractors, particularly private security contractors, may have undermined U.S. counterinsurgency efforts in Afghanistan and Iraq," the report said. See "The Department of Defense's Use of Private Security Contractors in Afghanistan and Iraq: Background, Analysis, and Options for Congress," February 21, 2011:

Official reporting on the conduct of the war in Afghanistan is grossly inadequate to inform policymaking or to provide public accountability, wrote Anthony Cordesman of the Center for Strategic and International Studies in a recent assessment of available metrics.

"The war in Afghanistan is now in its tenth year. In spite of that fact, the US, allied countries, the ISAF, and the UN have failed to develop credible reporting in the progress of the war, provide meaningful transparency on the problems and challenge it faces, and a meaningful plan for the future. Moreover, since June 2010, the unclassified reporting the US does provide has steadily shrunk in content -- effectively 'spinning' the road to victory by eliminating content that illustrates the full scale of the challenges ahead," Cordesman wrote.

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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