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General News    H3'ed 8/10/11

Former Classification Czar: Information Drake Accused of Retaining Never Should Have Been Classified

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Message Jesselyn Radack

J. William Leonard served in the George W. Bush administration as classification czar (head of the Information Security and Oversight Office).  He worked with NSA whistleblower Thomas Drake's defense team as an expert on classification.  He writes in today's L.A. Times that

. . . in my opinion, the classified information Drake was charged with having possessed illegally . . . never should have been classified in the first place.

The e-mail Leonard refers to is one of the allegedly classified documents Drake was accused of retaining at home - a charge that was dropped along with the rest of the felony charges when the prosecution's case imploded days before trial.

Leonard says:

Having served as an expert witness for Drake's defense, I have read the email in question, and it clearly does not meet even the minimal criteria for classification, namely that it "reasonably could be expected to result in damage to the national security."

And he points out the absurdity of this excessive secrecy:

Every 6-year-old knows what a secret is. But apparently our nation's national security establishment does not.

Why would the Justice Department claim a benign document is a national security secret? The simplest explanation is the correct one: because the government was retaliating against Drake for his whistleblowing activities.

Leonard commendably addressed this problem of over-classification directly with his former office, and filed a complaint requesting that the DOJ and NSA officials who overclassified the documents in question in Drake's case be held accountable. Such accountability is sadly unprecedented, especially considering that these days allegations of improper retention of classified information yields Espionage Act charges.

Republican-appointed judges have also rebuffed the Obama Justice Department's assertions of secrecy.  Scott Horton writes for Harper's that conservative Republican judges have consistently rejected the Justice Department's approach of using the Espionage Act to go after supposed "leakers," who are more often than not whistleblowers, emphasizing Drake's sentencing hearing:

At the sentencing hearing on July 15, Judge Richard D. Bennett, a Republican and a Bush appointee, expressed anger at the Justice Department's tactics. He praised Drake and described Justice's management of the case as "unconscionable." "It was not proper," he said. "It doesn't pass the smell test." He compared the department's actions to those of the British autocrats whose capricious abuse of power had precipitated the American Revolution.

Also this week, the fairly conservative Seventh Circuit Court of Appeals weighed in for accountability in a lawsuit on behalf of two American whistleblowers who were held incommunicado and tortured.  The Seventh Circuit allowed the suit to proceed against former Defense Secretary Donald Rumsfeld.  That ruling dovetails on a ruling at the District Court level allowing a similar suit against Rumsfeld to proceed.  My organization, the Government Accountability Project, is co-counsel on that suit brought on behalf of a whistleblower held incommunicado for nine months and never charged with a crime.

These developments - victories in suits against Rumsfeld, bucking the Justice Department's claims of secrecy, and classification experts writing that even a 6-year-old knows what a secret is - should signal to the Obama administration that its policy of "looking forward" to avoid accountability for Bush-era abuses like torture while looking backward to prosecute whistleblowers - in Judge Bennett's works at the Drake sentencing - "does not pass the smell test."

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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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