A federal judge on Thursday confirmed his decision to allow unclassified, “sensitive” information to be withheld from the leak trial of Thomas Drake, a former high-ranking National Security Agency official.
U.S. District Judge Richard Bennett's opinion explains his ruling that prosecutors have the authority to request both classified and unclassified — what the government calls “protected” — documents be kept secret from jurors and replaced with substitutions under legal privileges provided under the National Security Agency Act of 1959.
The act says the National Security Agency can withhold any information related to its activities without needing to show the materials’ release will cause harm. This statutory privilege has been used in the past when the government refuses to release documents under the Freedom of Information Act; today’s ruling is the first to extend it to criminal trials.
“No court has yet held that Section 6(a) of the Act provides the basis for an evidentiary privilege in a criminal case,” the District Court of Maryland ruling said. “On the other hand, such a dearth of case law is not dispositive either way, because there is no language in the Act explaining that it is inapplicable to criminal cases.”
The judge also disagreed with Drake’s assertion that withholding unclassified information harms his defense.
“Since there has been no prejudice to Mr. Drake, his ability to defend himself has not been, as Mr. Drake claims, ‘irreparably impaired,’” the ruling said.
In a 10-count indictment, Drake is charged with unlawful retention of national defense documents, obstruction of justice and making a false statement after allegedly taking classified defense documents home with the intent to leak information to an unnamed reporter and then lying about doing so. The reporter is believed to be Siobhan Gorman, then of The Baltimore Sun, who wrote a series of articles about problems at the National Security Agency. Drake is scheduled to stand trial in Baltimore on June 13.
The Department of Justice made the initial request to conceal unclassified information on May 9. Defense attorneys responded the next day, saying this is the first time the government requested such an exemption. They also argued the National Security Agency Act does not apply to criminal proceedings and the Classified Information Procedures Act, which the prosecutors also cited, does not protect unclassified information.
“One month from trial, and one year after the indictment issued in this case, the government has asserted, for the first time, an evidentiary privilege under the National Security Agency Act of 1959 that claims it authorizes the Court to redact, or insert substitutions for, relevant, unclassified evidence that will be introduced during the upcoming criminal trial. There is no authority for this unprecedented assertion in the context of a criminal case,” defense attorneys said in their response.
It is typical for the government to ask courts to approve withholding classified information in a trial and replace it with substituted information. However, it is exceptional to also ask to keep unclassified information off the record as well, defense attorneys said.
Drake is one of five known leakers prosecuted by the Obama administration.
The other alleged leakers are: Stephen Kim, a former Department of State analyst who allegedly leaked an intelligence report to an unidentified reporter; Bradley Manning, a U.S. Army private alleged to have leaked classified information to WikiLeaks; Shamai Leibowitz, a former FBI linguist who was convicted in May 2010 of charges related to the leaking of classified information to an unidentified blogger and sentenced to 20 months in prison; and Jeffrey Sterling, a former CIA operations officer accused of leaking classified information.