[Intelforum] Secrecy News -- 04/07/11

Thu Apr 7 11:05:17 EDT 2011

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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 
**     IN SEARCH OF "UNFETTERED ACCESS" TO CRS REPORTS
**     MILITARY JUSTICE, STATE SECRETS, AND MORE FROM CRS

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:

	http://www.fas.org/sgp/jud/drake/033111-hearing.pdf

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:

	http://www.fas.org/sgp/crs/secrecy/R41742.pdf

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

	http://www.ridenhour.org/

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

	http://www.fas.org/irp/congress/2011_cr/s743.html

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.

http://www.openthegovernment.org/sites/default/files/LibrarianCongress.pdf

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.

	http://transparencycaucus.org/blog/2011/future-of-crs/

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:

	http://www.fas.org/sgp/crs/natsec/R41739.pdf

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

	http://www.fas.org/sgp/crs/secrecy/R41741.pdf

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

	http://www.fas.org/sgp/crs/natsec/R41744.pdf

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

	http://www.fas.org/sgp/crs/natsec/R41745.pdf

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

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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood at fas.org
voice:  (202) 454-4691
twitter: @saftergood