Drake prosecution shines a light on the Classified Information Procedures Act

From the Summer 2011 issue of The News Media & The Law, page 8.

The U.S. Department of Justice last year charged Thomas Drake with 10 felonies related to the asserted leak of sensitive National Security Agency information to a reporter.

He faced the possibility of decades in prison if convicted for the unlawful retention of national defense documentation under the Espionage Act, obstruction of justice and lying to federal agents.

But on the eve of trial, Drake agreed to plead guilty to one misdemeanor charge — intentionally exceeding the authorized use of a computer — in exchange for all the felony charges being dropped.

Drake was sentenced in July to a year of probation, plus community service.

Prosecutors hailed the guilty plea in United States v. Drake as a win in its efforts to stop government leaks, while some watchdog groups considered the dismissal of all the felony charges to be a victory for whistleblowers.

Either way, it seems clear that concerns about the disclosure of classified information in the trial played a significant role in the resolution of the case.

Prosecuting cases involving classified information

Criminal defendants have a constitutional right to a fair trial, which includes the right to not only require the prosecution to prove all the elements of the alleged crime, but also provides defendants with the right to present evidence in their own defense.

Upholding such rights can prove challenging when the prosecution’s or defense’s case relies on classified information.

The threat by defendants to disclose classified information at trial has even led to a term for the practice: “graymail.”

The Classified Information Procedures Act is intended to address these issues.

“CIPA was largely intended to address the graymail phenomena by creating procedures in which the government could produce to the defendant, and both sides could use at trial, classified information without compromising its integrity,” said Washington media attorney Jay Ward Brown, who has represented the interests of news media organizations in CIPA-related cases. “That is precisely why it is called the Classified Information Procedures Act.”

Brown, who was not involved in the Drake case, said CIPA allows the parties, with the trial court’s permission, to present substitute evidence into the trial in place of the classified information.

“The statute allows a court to order certain substitutions for original documents and incorporates various other procedures that are intended to maximize the amount of material that can be disclosed to the defendant and publicly used in the courtroom while minimizing the opportunity for defendants to use the threat of disclosure of truly sensitive information to thwart the prosecution,” he said.

Alternatively, the court may allow the government to provide a summary of the classified information.

The use of such substitute or summary evidence is subject to an important caveat, however: The court cannot allow the replacement of classified information if doing so will adversely affect the defendant’s ability to put on a defense.

“As in all things, the devil is in the details,” Brown said of CIPA. “While the concept or purpose of the statute was clearly laudable and good, in practice it has been difficult for judges to apply it, because each side tries to use the statute and characterizes the statute to the extreme end in ways that would make it favor that side’s purposes.”

CIPA’s role in the Drake case

As the Drake case neared trial earlier this summer, CIPA’s role in the case took center stage. The government asked the court to allow it to present substitute evidence in the trial under CIPA’s provisions.

The trial court agreed to some substitutions. But it denied the request to substitute other evidence that the prosecution said related to “the NSA’s targeting of particular telecommunication technology.”

A filing by the prosecution indicates that the court reasoned that the proposed substitutions would not adequately protect the defendant’s right to a fair trial.

That court ruling apparently put the prosecution in a bind. A few days later, the government informed the court and defense that it intended to proceed with the trial, but was also retooling its case.

In an unusual letter, prosecutors told the judge and defendant that they planned to “excise all references to that [telecommunications] technology from its case.”

The result would be to “allow continued protection of the details of the NSA’s efforts in this area, while simultaneously protecting the defendant’s constitutional ability to present his defense,” the prosecution said.

However, speculation quickly grew that the prosecution would have to dismiss several charges. In the end, the parties agreed to a plea agreement.

The prosecution later said the decision to seek a plea agreement was a means of balancing its case against the needs of national security.

“[I]n cases involving classified information, we must always strike the careful balance between holding accountable those who break our laws, while not disclosing highly-sensitive information that our intelligence agencies conclude would be harmful to our nation’s security if used at trial,” Assistant Attorney General Lanny A. Breuer said in a prepared statement after the guilty plea.

Watchdog groups question whether outside pressures also played a role.

“It was, I believe, not simply the weak case, nor as the DOJ claims, concerns about disclosing sensitive information, that caused the collapsed prosecution,” Danielle Brian, the executive director for the Project of Government Oversight, said on the project’s website. “In this case, I believe it was also the weight of the outcry from the public . . . to force the DOJ to back down.”

Media attorney Brown said the outcome is consistent with some other recent CIPA cases that “have had surprising endings because of rulings made by judges about what needs to be made public, and/or what the defense can or cannot use publicly in the course of a trial.”

Given that the outcome of each CIPA analysis depends on the specific “nature of the particular charges against the individual and the particular materials that are used,” Brown sees more surprising case resolutions to come. “It is going to be a phenomenon that we see playing itself out again and again.”