SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 33
April 7, 2011

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

PRE-TRIAL MOTIONS ARGUED IN THOMAS DRAKE LEAK CASE

A federal court heard pre-trial arguments last week in the case of former National Security Agency official Thomas A. Drake, who is charged with unlawful retention of NSA documents. He allegedly relayed some of those documents to a Baltimore Sun reporter, who subsequently wrote stories about NSA waste and mismanagement. At last week's hearing, prosecutors and defense attorneys battled over the facts of the case, the scope of the charges, the constitutionality of the Espionage Act statutes, the nature of the evidence that may be presented at trial, and other matters.

In the end, each side got a favorable ruling on the "must win" issues it needed in order to have a chance of success at the actual trial, which is scheduled for June. Judge Richard D. Bennett of the Maryland District Court sided with prosecutors in affirming the constitutionality of both the Espionage Act and the Classified Information Procedures Act, and he declined to dismiss any of the multiple charges against Mr. Drake. But he ruled for the defense in deciding that Mr. Drake could present evidence that he was acting as a whistleblower, and that he could also introduce newspaper articles from the Baltimore Sun reflecting his input.

The arguments themselves were at least as interesting as the resulting decisions, and they recapitulated many longstanding disagreements about using the espionage statutes to prosecute leaks. "Both sides have presented excellent legal briefings..., and the quality of the legal argument is obvious for all to see," said Judge Bennett.

The court rejected defense motions arguing that the espionage statutes were unconstitutionally vague or overbroad, and also refused to dismiss five counts against Mr. Drake charging him with unlawful retention of information protected by the Espionage Act.

But crucially for the defense, the court ruled that "the fact that your client was acting as a whistleblower" could be introduced at trial because it relates to the question of the defendant's "intent." To gain a conviction, prosecutors must prove that the defendant acted with specific intent to violate the law. (The court also admitted an amicus brief prepared by the Government Accountability Project which argued that Mr. Drake's whistleblower role was entitled to First Amendment protection.)

And the court granted a defense motion to introduce certain newspaper articles, over prosecution objections. "We need to be able to the show the jury that none of the classified information that the Government alleges they found in our client's home is in the articles," defense attorney James Wyda said.

However, Judge Bennett indicated that former Baltimore Sun reporter Siobhan Gorman, who wrote the news stories involving information she allegedly obtained from Mr. Drake, would not be called to testify. "We're not going down the path of having reporters called to the witness stand, because, you know, I'm not inclined to incarcerate a reporter who asserts a privilege," the judge said. "That's the last thing we need right now.... To the extent that we even think about calling a reporter to the witness stand, I think we're really going down a deep, dark hole here in terms of how this case would proceed and assertions of privilege and everything else."

Prosecutors defended their proposal to employ the so-called "silent witness" rule, by which some evidence would be presented to a jury but not revealed in open court. That would be tantamount to closing the trial, objected defense attorney Deborah L. Boardman, and would place the defense at a significant disadvantage. "It is fraught with constitutional peril," she said, "and the practical problems associated with it are incalculable." The court deferred a ruling on that question.

A copy of the transcript of the March 31 hearing on pre-trial motions in USA v. Thomas Drake was obtained by Secrecy News and is available here:

Before Mr. Drake's trial begins, the court must hear arguments and issue rulings on the classified information (or agreed-upon substitutes for it) that may be introduced at trial under the provisions of the Classified Information Procedures Act. The Congressional Research Service recently prepared an overview of that statute. See "Protecting Classified Information and the Rights of Criminal Defendants: The Classified Information Procedures Act," March 31, 2011:

Next week, Mr. Drake will be awarded the "Ridenhour Prize for Truth-Telling" from the Nation Institute and the Fertel Foundation.

The Whistleblower Protection Enhancement Act (S.743), which would extend whistleblower protection to intelligence community employees, was introduced in the Senate yesterday.

IN SEARCH OF "UNFETTERED ACCESS" TO CRS REPORTS

Members of the public enjoy unrestricted access to all reports of the Congressional Research Service, according to the Librarian of Congress, Dr. James H. Billington.

"Though CRS has no direct public mission, at present the public has unfettered access to the full inventory of CRS Reports for the Congress at no cost through the office of any Member or committee," he wrote in an April 4 letter to Amy Bennett of Openthegovernment.org.

Unfortunately, that assertion is quite wrong. The public does not have access to the full inventory of CRS Reports. There is not even a public index of CRS reports that would enable people to request specific reports by title.

No Member of Congress or committee permits unfettered public access to all CRS Reports, which are produced and updated at a rate of perhaps a dozen a day, although individual reports will often be released upon specific request. (Some CRS Reports are prepared confidentially for individual Members and those are not available to others under any circumstances, except when the Member chooses to release them.)

Still, Dr. Billington's mistaken belief that the public already has "unfettered access" to the entire CRS database is a hopeful sign, because it tends to confirm that providing such access to non-confidential CRS Reports is a sensible and achievable goal. Indeed, otherwise well-informed people like the Librarian of Congress assume that it must already be true.

I will be participating in a panel discussion on "The Future of CRS" on Monday, April 11, sponsored by the Sunlight Foundation's Advisory Committee on Transparency, which will address the issue of public access to CRS products and related issues.

MILITARY JUSTICE, STATE SECRETS, AND MORE FROM CRS

Noteworthy new reports from the Congressional Research Service that have not been made readily available to the public include the following.

"Military Justice: Courts-Martial, An Overview," March 31, 2011:

"The State Secrets Privilege: Preventing the Disclosure of Sensitive National Security Information During Civil Litigation," March 28, 2011:

"Rare Earth Elements in National Defense: Background, Oversight Issues, and Options for Congress," March 31, 2011:

"Government Shutdown: Operations of the Department of Defense During a Lapse in Appropriations," April 1, 2011:

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

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