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Kafka: Gov't Tries Barring Newspaper Articles, Whistleblowing & Over-Classification at Drake Trial

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from The Daily Kos

The Justice Department wants to hold the prosecution of former NSA official and whistleblower Thomas Drake in a Soviet-era vacuum. Recently the government has moved to preclude any evidence of published, properly authenticated newspaper articles; over-classification; and--as the Justice Department must be sensitive to the fact that it is trying to jail a whistleblower--any mention of whistleblowing!  The icing on the cake is that war-on-whistleblowers "General" William Welch wants to use a "secret code" to talk about evidence in Drake's case.  

What kind of fair and public trial will this be?


In USA Today Justice Department spokeswoman Laura Sweeney defended the Obama administration's war on whistleblowers:

At the same time, there are appropriate avenues for whistle-blowers to follow when it relates to handling of classified information. People with access to classified information cannot make unilateral decisions that such information doesn't have to be treated as classified, regardless of their motive.

That offers no defense whatsoever for the Obama administration's prosecution of Drake because Drake did not leak classified information to the media, and is not charged with leaking classified information to the media. Moreover, Drake did go through appropriate channels for providing classified information to Congress and the Department of Defense Inspector General.

In fact, the only good thing to emerge from the recent batch of government motions in limine [pretrial motion regarding admissible evidence], is that the government finally realizes that this is a "document retention case," (in Docket Nos. 53, 54, and 55) and actually states in Docket 55:

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Disclosure of classified information is not an essential element of the charged offenses.

Someone should tell Laura Sweeney.

The government's motion on over-classification claims that whether Drake thought there was rampant over-classification "is irrelevant." Over-classification is not a "thought" or theory that Drake or anyone else had.  It is fact of the Bush administration. The National Declassification Center has a backlog of more than 400 million pages of Federal records previously subjected to automatic declassification. President Obama signed into law in 2010 The Reducing Over-Classification Act.  

As for the "silent code" the Justice Department wants to use, Politico pointed out that it has been

hotly contested and prompted conflicting legal rulings.

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Even the name, "Silent Witness Rule" is an oxymoron, which by the way would still allow jurors to see classified information, defeating the whole purpose of classification. Why don't we just toss defendants into a pot of boiling water and see if they float?  But Welch has no hesitancy about asserting arguments for which he has no credible support - as demonstrated by his failed attempt to ferret out defense experts prematurely.  

Even former NSA Director General Michael Hayden, the secrecy zit, flagged the hypocrisy of Obama's supposed commitment to transparency while pursuing a record number of prosecutions against whistleblowers, calling it "surprising" while on Washington Journal this week. Though Hayden fully supports the upturn in prosecutions, giving us the usual Bush-era missive: if you only knew, you would agree:

those of us who suffer a loss of capabilities [and] see actual loss of life applaud the government being more aggressive against leakers .

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My name is Jesselyn Radack and I am the former Justice Department ethics attorney and whistleblower in the case of "American Taliban" John Walker Lindh. In today's issue of The National Law Journal (Feb. 19, 2007), I have an Op-Ed entitled (more...)

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