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OpEdNews Op Eds    H3'ed 8/2/11

Punishment for NSA & DOJ Overclassification in Drake Case

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Message Jesselyn Radack

While I'm glad that - thanks to a no-win compromise - the nation will not be bankrupting itself, I again feel compelled to draw your attention away from the debt ceiling deal.  
Today's New York Times reports that former classification czar J. William Leonard filed a formal complaint with his former office - the Information Security Oversight Office (ISOO) - requesting punishment for the National Security Agency (NSA) and Justice Department officials who improperly classified documents in the Espionage Act case against NSA whistleblower Thomas Drake.

Leonard articulates the significance of his complaint in the Times:

If you're talking about throwing someone in jail for years, there absolutely has to be responsibility for decisions about what gets classified . . .

The document in question (an e-mail) was used as the basis for an Espionage Act charge for improper retention - not disclosure - of classified information.  Yet, according to Leonard, the e-mail never should have been classified in the first place. In fact, NSA declassified the e-mail after the indictment against Drake was filed.  

We know how the Drake case ended. The Justice Department's Espionage Act case completely collapsed, and Drake pleaded to a minor misdemeanor in July.   Judge Richard Bennett slammed the Justice Department  for its handling of the case and sentenced Drake to probation and community service.

Since then, Judge Bennett has agreed to allow Leonard to use the still-secret e-mail in his complaint against NSA and DOJ.  

Leonard's complaint is well taken. There is universal agreement that rampant overclassification plagues the intelligence community.  Steven Aftergood  put it best:

Depending on who you ask, overclassification is either very widespread or extremely widespread.

The difficulty is government officials are often punished for failing to classify information, but rarely or never punished for overclassifying information.

As classification czar, Leonard saw the massive problem of overclassification first hand, but he  said  about the Drake case:

I've never seen a more deliberate and willful example of government officials improperly classifying a document.

That "deliberate and willful" overclassification smacks of retaliation, and a Justice Department determined to punish a whistleblower for cooperating with government investigators and revealing NSA gross waste and illegalities.  

The significance of his own case is not lost on Drake, and he wrote about his case publicly for the first time in an  op-ed (which I co-authored) in yesterday's Philadelphia Inquirer :

This administration's attack on national-security whistle-blowers expands Bush's secrecy regime and cripples the free press by silencing its most important sources. It's a recipe for the slow poisoning of a democracy.

Improper classification only furthers the secrecy regime. There are certainly secrets that the government needs to keep - the identities of covert operatives, sources and methods, troop movements, etc. But to bastardize the classification system by using it to punish whistleblowers undermines both the system's legitimacy and our democracy.  

Hopefully, ISOO will recognize as much and will see Leonard's complaint as an opportunity to set a much-needed precedent for holding accountable government officials who keep too much government information from public view, particularly if the classified information is used as the basis for criminal charges.

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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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