The government is seeking to limit the disclosure of unclassified information as well as classified information about the National Security Agency at the upcoming trial of former NSA official Thomas A. Drake, who is accused of unlawful retention of classified documents that were allegedly provided to a reporter.
Under the provisions (pdf) of the Classified Information Procedures Act (CIPA), as expected, prosecutors have asked the court to protect certain classified information from disclosure at trial by proposing substitutions, subject to court approval.
But in an unprecedented legal maneuver, they said that some unclassified information concerning NSA should also be kept off the record. Defense attorneys told the court that the move was outrageous.
“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 it claims authorizes the Court to redact, or insert substitutions for, relevant unclassified evidence that will be introduced during the upcoming criminal trial,” wrote public defenders James Wyda and Deborah L. Boardman on May 10 (pdf). “There is no authority for this unprecedented assertion in the context of a criminal trial.”
Prosecutors said (pdf) their position was legitimate because “NSA possesses a statutory privilege that protects against the disclosure of information relating to its activities.” The statute exempts the Agency from any required “disclosure of the organization or any function of the National Security Agency….” Prosecutors said CIPA permits them to invoke this privilege for unclassified information, along with any other privilege that might be germane.
The NSA Act exemption cited by the government is most commonly used in Freedom of Information Act cases to deny access to unclassified information. It has never been used to exclude information in a criminal case, the defense said. Even if it were permitted to be invoked in this case, it requires a detailed affidavit to support its use in each instance and no such affidavits have been produced.
“Neither CIPA nor the National Security Agency Act confers courts with the authority to require substitutions for unclassified, relevant evidence in a criminal case,” the defense attorneys said. They asked the court to block the move or, failing that, to require the government to identify with specificity the reasons why disclosure of the unclassified information would harm national security.
The current pre-trial wrangling in the Drake case illustrates at least two things. First, the government is pursuing the matter aggressively at the tactical level; it is fighting to win, not just going through the motions. (The same, of course, may be said of the defense.) And second, this case — and each of the other pending leak prosecutions — may be of momentous importance not only to the defendant. Each proceeding has the potential to establish new precedents and new procedures that will perturb the current understanding of the law, and thereby make future leak prosecutions either easier or harder.