Plea Bargain a Concession that DOJ Indicted Thomas Drake for Unclassified Information

There’s something that’s missing from the coverage of the Thomas Drake plea bargain. Yes, this is a huge victory for Drake. A huge victory for whistleblowers. Yes, it proves that William Welch is an even bigger hack than the failed Ted Stevens case showed him to be.

But what about the two other charged documents?

Remember, what reportedly sunk DOJ’s case was a ruling from Judge Bennett that the government had to provide descriptions of one of the technologies they used to collect telecommunications; the government withdrew–in part or in whole–three of the charged documents in response. But the government originally charged Drake with illegally keeping five documents. The other two were described in the indictment as,

  • A classified email entited “What a Success”
  • A two-page classified document deemed “the Regular Meetings” document

If the charges built on these two documents were halfway decent, Drake wouldn’t have gotten his misdemeanor plea bargain.

But of course they weren’t even halfway decent.

The “What a Success” document was declassified by the government in July 2010, just months after the government indicted Drake.

The “Regular Meetings” document not only was never formally classified–though the government says it should have been and Drake should have known that–but the government tried to withhold from Drake evidence that the document was published on NSANet as an unclassified document.

It is disturbing that the government did not produce the March 22, 2010 memorandum [showing that NSA’s lead investigator had found the document to be posted on NSANet as an unclassified document] to the defense until February 4, 2011, ten months after the Indictment was issued. The information in the memorandum is undisputedly Brady material, and the government should have disclosed it many months ago. None of the documents found in Mr. Drake’s home was marked classified. For some of these documents, the government claims that Mr. Drake had received them originally with classification markings. The significance of the March 2010 memorandum is the government’s concession that the “Regular Meetings” document was published as “unclassified” and had never been deemed “classified” until after it was recovered from Mr. Drake’s home.

Under the Due Process Clause of the Fifth Amendment, the prosecution is required to disclose exculpatory evidence to a defendant in a criminal case. See Brady v. Maryland, 373 U.S. 83 (1963). Here, there can be no dispute that the information in the memorandum is exculpatory. In the Indictment, the government charges that the “Regular Meetings” document is “classified.” See Indictment ¶ 17. The fact that the document was marked “unclassified” and was posted on the NSA intranet as “unclassified” directly contradicts material allegations in the Indictment. See id.; see also id. ¶ ¶ 2, 3, 3 [sic] (“Classified information had to contain markings identifying the level at which it was classified.”); ¶ 8 (alleging Mr. Drake retained and disclosed “classified” documents). In addition, the government clearly seems to be of the opinion that, if a document is classified, this fact supports a successful prosecution under 18 U.S.C. § 793(e) (an opinion with which the defense disagrees). It necessarily follows, therefore, that a memorandum indicating that a document was marked “unclassified” and posted on NSA’s intranet as “unclassified” is potentially exculpatory to a defendant who is alleged to have violated § 793(e).

For this reason, the prosecution was under a constitutional obligation to disclose the memorandum to defense counsel, yet chose not to do so. See Brady, 373 U.S. at 87 (“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”). What makes the government’s actions even more disturbing is the fact that defense counsel had to specifically ask the government for any evidence that the “Regular Meetings” document was posted on NSANet. This request came months after our initial request for all Brady material and the prosecution’s representation that it had produced all Brady material. It was only after our specific inquiry about a central document in the case that the government produced the March 22, 2010 memorandum. The government’s failure to turn over this exculpatory evidence at the beginning of the case is indefensible. And its decision to charge Mr. Drake with retaining a “classified” document clearly marked “unclassified” is, at a minimum, wrong. [my emphasis]

In other words, the government learned a month before they indicted Drake that this document wasn’t actually classified. But they indicted him for it anyway, and simply didn’t provide him evidence showing that fact until 10 months after they indicted him.

So in addition to dropping charges related to the evidence the government withdrew, the government also vastly restructured charges pertaining to these unclassified documents. Mind you, these documents are what the plea information describes (Drake would have collected the other documents pertaining to the IG complaint before 2006).

From in or about February 2006 through approximately March 2007, the defendant intentionally accessed NSANet, obtained official NSA information, and provided said information orally and in writing to another person not permitted or authorized to receive the same. In doing so, the defendant knew that he exceeded his authorized use of NSANet each time he accessed NSANet and obtained said information for that purpose because such access was not for the official use or business of NSA.

But what they had originally charged as “classified” information became “official NSA information” in the ultimate plea agreement.

Mark Benjamin is right to focus on William Welch’s role in the collapse of this case. But we also ought to be asking why the government indicted a person for leaking “classified” information when it knew that it was not classified.

  1. harpie says:

    Very good and important question, but another thing I’d like to know is how much [money] this sham has cost US taxpayers.

    • orionATL says:

      yes, indeed, how much?

      the fbi’s cost for the anthrax investigation that stopped at the end of a narrow, dark road was $25 million if i recall correctly (and i often don’t).

  2. orionATL says:

    “…in other words, the govt learned a month before they indicted…”

    our dept of justice, that’s our united states department of JUSTICE,

    with the full and joyful co-operation of its little brother the fbi,

    is engaged, fully and knowingly engaged, in domestic terrorism.

    using a persecutionary prosecution approach to security law to terrorize

    anti-war groups and individuals,

    terrorizing muslim-americans,

    terrorizing whistleblowers,

    terrorizing immigrants,

    in sum, assiduously terrorizing any and every group of in america whom the american right-wing hold unworthy.

  3. MadDog says:

    …But what they had originally charged as “classified” information became “official NSA information” in the ultimate plea agreement…

    Another step down on the 1984 path. Soon the mere possession of information by someone other than a member of the National Security State will be criminalized.

  4. MadDog says:

    OT – If ABC News is hoping to make more than 2 or 3 bucks total in selling its eBook about targeting OBL, it probably first ought to get even the simplest of facts right. From their online excerpt:

    …But they weren’t out of the woods. Pakistani’s military scrambled fighter jets looking for the helicopters, trying to figure out who was in their country and why. After all, its relations with neighboring India are tense and Pakistan routinely is on high alert.

    This was the scenario the SEALs had prepared for. What would happen?

    The SEALS detonated the crashed Black Hawk and took off in the one surviving stealth Black Hawk. The two Chinooks and the SEALs in the Black Hawk motored back to Jalalabad…

    (My Bold)

    Ummm…no, that would be aerodynamically impossible. Per the Black Hawk specs from Wiki:

    General characteristics

    Crew: 2 pilots (flight crew) with 2 crew chiefs/gunners

    Capacity: 2,640 lb of cargo internally, including 14 troops or 6 stretchers, or 8,000 lb (UH-60A) or 9,000 lb (UH-60L) of cargo externally…

    If all the MSM reports on how many troops were on the ground are true, and I have no reason to doubt them, then how is it that 24 Seals, one Belgian Malinois dog, and OBL’s body could be carried in a Black Hawk helicopter only capable of carrying 14 troops?

    • MadDog says:

      Oh, and I forgot to include the addition of the 2 to 4 crew from the downed Black Hawk.

      A single Black Hawk trying to carry these numbers of additional folks (26 to 29 plus the dog) would itself never get off the ground.

    • BoxTurtle says:

      That’s what they get for taking their own reporting seriously.

      Boxturtle (Or Perhaps they got their data from the NYT)

  5. Deep Harm says:

    Why did the government prosecute anyway? Criminal indictments are a favorite tactic of government against high profile whistleblowers who reveal waste, fraud and abuse. Whether national security, food safety or nuclear power is the issue, the tactics are similar…and similarly reprehensible.

  6. earlofhuntingdon says:

    One would think that such withholding of pertinent information from the court – as well as the defendant – should lead to sanctions against these government attorneys from the court and the organized bar. They had actual knowledge; their charges against Drake claim that implied knowledge is sufficient to support criminal sanctions.

    • BoxTurtle says:

      With an attitude like that, you’ll never get a judicial appointment or a job at DoJ.

      Boxturtle (Clearly, it was an honest mistake. Or an attempt to shield classified information. Or something like that)

    • harpie says:

      Is this similar to what Marcy wrote about here?

      […] And finally, [Judge Cormac]Carney’s ruling makes it clear that the government argued that even filing an in camera filing telling the judge that it had withheld records under this subsection would compromise national security. […]

      • earlofhuntingdon says:

        That court imposed no sanctions despite expressing being gobsmacked at the government’s actions. I expect the same here, but if that’s what happens, the courts shouldn’t wonder why they receive more of this disdainful treatment by an arrogant executive.

        • DWBartoo says:

          Perhaps the courts enjoy being gobsmacked, EOH?

          One does wonder if Judge Bennett asked the question EW poses, or wondered about it?

          If not in terms of the defendant, then in terms of the court and the “standing”, the institutional “authority” of the judiciary … check & balance-wise?

          One wonders if “decorum” and some form of “deference” enjoins this judge, and others, from even unintentionally contemplating (never mind “sharing”) an “opinion” about such a question?

          How much more aggregious must the blatant disrespect for and the utter disdain of the rule of law by the executive become before judges, in the USA, have the fundamental or even basic human decency to remark upon it (not to mention the Constitutional obligation of insisting upon it)?

          One wonders …


  7. harpie says:

    Harper’s Scott Horton on this:

    […] But its ability to salvage a misdemeanor plea from the collapsed Drake case also demonstrates the tremendous power that it wields—a power sufficient to compel an innocent and righteous man to plead guilty to a charge of which he is obviously innocent. The judge should reject the plea bargain and dismiss the case. And the Justice Department should take this as an opportunity to reassess its failed strategies in the troubled area where civil liberties and national security interests converge.

    • emptywheel says:

      I think Horton is wrong about Drake being innocent here. All the reporting on negotiations made it clear that Drake wasn’t going to plea guilty to something he didn’t do. And earlier reporting made it clear that Drake consciously knew he might get fired for talking to a reporter. He has admitted he did talk to her and collected unclassified information for her. Ergo, he violated NSA’s limits on what NSA employees can do with information they get from the network.

      Not that I’d be bummed if he got off scott free, mind you. Just that Horton is probably wrong here.

        • earlofhuntingdon says:

          Yep, that optimism is relentless, despite what he knows as an expert on international, criminal, military and business law. In my view, his reserve diminishes his message rather than reinforces it.

            • bmaz says:

              Cool, Melvin is from your hood? Seemed like a great guy, and a decent manager. Problem here was Colangelo wanted to win so bad he took on investor partners for cash to get the necessary pieces to win. Win he and the DBacks did, even a World Series. But three or four of the minority investors, led by a couple of chaps named Ken Kendrick and Dale Jensen, new age bankster/finance clucks, that were supposed to just enjoy the ride and shut the fuck up, up and decided they were smarter than Colangelo and out of nowhere ganged together to vote him out of control and basically did a hostile takeover. Turns out they were not, of course, smarter than Jerry Colangelo. Their supposed rationale was that Colangelo was inefficient and spending too much money and, they, as genius businessmen, would “cut the fat out” and “run things more efficiently like a business”. The subsequent gutting of the team hung Bob Melvin out to dry. And the DBacks have never really recovered from this arrogant assholery. Seriously, what type of hubris convinces financial product whiz bangs that they are smarter at leading pro sports franchises than freaking Jerry Colangelo?? Neither one of the clucks is even from here; one is from Texas and one from Nebraska. Turns out fans ain’t that thrilled by a medium to low budget operation and don’t necessarily come to the stadium to watch lame mediocrity. Who couldda predicted?

  8. ubetchaiam says:

    With liberty and justice for all(except those the government doesn’t want to give justice to).

  9. orionATL says:

    so when may we expect the disbarrment proceedings to begin for the govt prosecutor(s) judge bennet keel-hauled?

  10. bobschacht says:

    Yes, it proves that William Welch is an even bigger hack than the failed Ted Stevens case showed him to be.

    I think they’re keeping him around in case they’re forced to actually prosecute anyone for torture. With Welch on the case, how can they possibly “win”?

    Bob in AZ

  11. potsdam602 says:

    I don’t like plea bargains–they help the guilty and hurt the innocent. It makes for a lazy system and allows a lot of the truth never to come to light.