SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 53
June 6, 2011

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

PROSECUTION OF THOMAS DRAKE "SMACKS OF OVERKILL"

The prosecution of former National Security Agency official Thomas A. Drake under the Espionage Act "smacks of overkill," said the Washington Post in an editorial today ("A case that could be overkill against a whistleblower," June 6).

The Post editorial tends to ratify a growing consensus that the prosecution of Drake on charges of unauthorized retention of classified information is a mistake, and that the Obama Administration has mishandled the case. That view was crystallized by a widely-read New Yorker article written by Jane Mayer ("The Secret Sharer," May 23), and reinforced by a 60 Minutes profile (May 22), as well as a Ridenhour whistleblower award.

There is no evidence that Mr. Drake intended to cause harm to the United States or that he actually did so, even inadvertently. The prosecutors themselves do not claim that any classified information that might have been in Mr. Drake's possession appeared in the press as a result of his actions. Yet he faces the possibility of multiple decades in prison.

"The question here is whether the indictment and proposed punishment are proportionate to the alleged infraction," the Post editorial said. Clearly, they are not.

When former National Security Adviser Sandy Berger was found to have unlawfully removed classified records from the National Archives -- in circumstances that were far more egregious and much less susceptible to an innocent interpretation than anything Mr. Drake did -- Mr. Berger was not charged under the Espionage Act. He pled guilty to a misdemeanor charge of "unauthorized removal and retention of classified documents or material" under 18 USC 1924, and was sentenced to two years of probation. He also had to pay a fine, to perform 100 hours of community service, and to forego access to classified material for three years.

There is no possibility at this late date that the Obama Administration will acknowledge its error and change course before Mr. Drake's trial begins on June 13. But one may still hope that a sensible jury will discern the injustice in the Administration's pursuit of Mr. Drake and draw the only appropriate conclusion.

NRO RELEASES PARTS OF 2011 BUDGET JUSTIFICATION BOOK

The National Reconnaissance Office (NRO), the U.S. intelligence agency that builds and operates intelligence satellites, has just released unclassified portions of its Congressional Budget Justification Book for Fiscal Year 2011. The large bulk of the document remains classified and unreleased, but the newly disclosed portions reveal a few scraps of new information.

"The NRO brings unique capabilities to bear in support of national security objectives by... acquiring and operating the most capable set of satellite intelligence collection platforms ever built," the NRO told Congress.

"In times of heightened tension, crisis, or even humanitarian or natural disasters, the value of NRO systems is even greater," the budget document said. "NRO systems are not only the first responders of choice for the DoD, IC [intelligence community], or policy decision makers, but also they are often the only source of information."

However, the NRO complained that its "financial flexibility has been lost due to a steady proliferation of budget control lines, more restrictive reprogramming limits, and greater external involvement in resource decisions" (p.2). The NRO has a massive annual budget that is probably on the order of $10 billion.

The 2011 NRO budget document introduced some new unclassified code names and programs such as "Ardent Gunslinger" (a "three tiered replacement next generation CORE backbone replacing existing ATM [asynchronous transfer mode] network") (p. 451) and "Puppet Master" (a "replacement to the Future Architecture for Command and Telemetry Services") (p. 455), among other curious bits and pieces.

"The NRO acquires and operates satellites that provide constant global access to critical information otherwise unavailable to the President, his cabinet, other national leaders and numerous customers in the Defense and Intelligence communities. These satellites provide services in three broad categories: GEOINT [geospatial intelligence], SIGINT [signals intelligence], and Communications (COMM)."

The FY 2011 NRO budget book was released in response to a Freedom of Information Act request from the Federation of American Scientists. As recently as 2006, the NRO had argued that its budget documents constituted "operational files" that are exempt from search and review under the FOIA. We challenged that claim in a FOIA lawsuit and, remarkably enough, the court ruled in our favor and against the agency.

Since that 2006 ruling by Judge Reggie B. Walton, the NRO has agreed to provide redacted versions of its budget book. So have all other U.S. intelligence agencies except the National Security Agency, which uses a broad statutory exemption to withhold even unclassified agency information from public disclosure.

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

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