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Did Thomas Drake Include Privacy Concerns in His Complaints to DOD’s Inspector General?

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I’ve been reviewing the docket on Thomas Drake’s case to see whether it touches on the privacy concerns Drake had about NSA’s post-9/11 activities.

It appears it doesn’t, even while there was an ongoing dispute about whether or not Drake will have access to the materials he submitted to the DOD Inspector General in support of claims that the ThinThread program operated more effectively than the Trailblazer program that Michael Hayden chose to enrich SAIC with instead (the Judge ruled that material would be admissible, but not a formal whistleblower defense, which Drake wasn’t trying to do anyway).

There are a couple of reasons why the silence, in the legal filings, about privacy concerns is interesting (aside from the fact that it’s a focus of Jane Mayer’s article.

First, because the two-sentence summary of the conclusion of the DOD IG Report on Trailblazer and ThinThread that the defense provides in a filing doesn’t address privacy.

In 2004, after more than a year of fact-finding, the Inspector General issued its initial audit findings. In a report entitled, “Requirements for the Trailblazer and Thinthread Systems,” the auditors concluded that “the National Security Agency is inefficiently using resources to develop a digital network exploitation system that is not capable of fully exploiting the digital network intelligence available to analysts from the Global Information Network . . . (T)he NSA transformation effort may be developing a less capable long-term digital network exploitation solution that will take longer and cost significantly more to develop.” The NSA continued to support the “less capable” program and its successor.

Which suggests the IG Report may not have addressed the claim that, in addition to being less efficient at “connecting the dots” than ThinThread, Trailblazer also offered none of the privacy protections ThinThread had.

That’s important because the government argued that Drake couldn’t claim to be a whistleblower because, by 2007, the issues at hand were resolved. They’re arguing both that any whistleblower claims would be mooted because Turbulence, Trailblazer’s successor, integrated “significant portions” of ThinThread, and that the debate was “over” by 2007, when Drake was (according to the indictment) serving as a source for Baltimore Sun reporter Siobhan Gorman.

In or about December 2004, the DOD IG completed its audit of [Trailblazer], including the allegations raised in the complaint letter. The NSA responded in August 2004 and February 2005, stating that based on the judgments of NSA’s experienced technical experts, the allegations were unfounded. Nonetheless, NSA agreed to incorporate significant portions of [ThinThread] into [Trailblazer] as a result of the DOD IG recommendations, thus largely mooting the issues raised in the complaint. In addition, starting in late 2005 and early 2006, the NSA transitioned away from [Trailblazer] to [Turbulence], another corporate architecture solution for Signals Intelligence collection.

[snip]

Just as importantly, by 2007, the timeframe of the charges in this case, there was no imminent harm faced by the defendant, because [Trailblazer] had incorporated elements of [ThinThread], and also because NSA had transitioned away from [Trailblazer] to [Turbulence].

[snip]

The defendant’s actions had no impact in the debate regarding the efficacy of [Trailblazer and ThinThread], because NSA had begun transitioning to [Turbulence] by 2006. Put simply, the debate was over.

There’s a lot going on in this passage. Obviously, the government is trying to claim that since Drake was allegedly collecting information for Gorman in 2007, he couldn’t claim he was whistleblowing.

Mind you he was not claiming he was whistleblowing, in the legal sense. He was only trying to get the IG materials to prove that’s why he collected three of the documents he’s accused of willingly keeping; basically, he’s arguing that if he overlooked three documents out of 5 boxes worth originally collected for the IG–and did not retain the really classified materials–that he basically just overlooked the three documents, rather than willfully retained them.

And the government is playing funny with dates. After all, they say Drake served as a source for Gorman from February 27, 2006, to November 28, 2007. The key story about ThinThread Drake served as a source for was dated May 18, 2006. And one of the charges accuses Drake of obstruction for shredding other documents. So not only is the 2007 date bogus because it igonores debates ongoing in 2006, but the government suggests that either Drake would be guilty for illegally retaining information, or obstructing an investigation. Moreover, Drake maintains he inadvertently included the three IG-related documents in the several boxes of unclassified materials, so the fact the debate was over is pointless.

Moreover, the successor to Trailblazer, Turbulence, was suffering from the same management problems Trailblazer had, as the defense notes just after citing the IG Report. The government wants to pretend the shift from Trailblazer to Turbulence ended the complaints about management problems, but it didn’t.

But then there’s the way the government portrays the IG complaint: efficacy. As I laid out the other day, there are four ways, Gorman’s sources claim, that ThinThread was better than Trailblazer:

The program the NSA rejected, called ThinThread, was developed to handle greater volumes of information, partly in expectation of threats surrounding the millennium celebrations. Sources say it bundled together four cutting-edge surveillance tools. ThinThread would have:

* Used more sophisticated methods of sorting through massive phone and e-mail data to identify suspect communications.

* Identified U.S. phone numbers and other communications data and encrypted them to ensure caller privacy.

* Employed an automated auditing system to monitor how analysts handled the information, in order to prevent misuse and improve efficiency.

* Analyzed the data to identify relationships between callers and chronicle their contacts. Only when evidence of a potential threat had been developed would analysts be able to request decryption of the records.

In other words, privacy was just one of three ways ThinThread was better than Trailblazer, according to Gorman’s sources.

But that’s not the aspect the government seems to address. That is, the government seems to be saying that, because Turbulence adopted some of the approaches of ThinThread that made it more efficient at analysis, Drake can’t complain. The suggestion is (though we can’t know because of the secrecy) privacy is not, like efficacy, an adequate reason to blow the whistle. Neither privacy, nor the Constitution.

And that’s interesting for two more reasons. First, because the government references a notebook of documents Drake provided that had nothing to do with the IG Report.

There was, for example, a notebook of documents provided by the defendant, many of which had nothing to do with the IG’s audit, but this notebook was destroyed before the case began, and after the IG completed its audit.

Is it playing games with the scope of the audit? That is, did Drake provide materials on privacy, which the IG didn’t include within the scope of its report? If so, the IG’s destruction of the notebook, in violation of DOD’s document retention policy, is all the more interesting.

Then, finally, the debates about privacy continued into 2007 and 2008. In August 2007, specifically, Mike McConnell nixed a Democratic version of the Protect America Act because it required the government to tell FISA judges what the plan for minimizing US person data is and allowed the judges to review for compliance. Debates on how to fix PAA continued throughout the fall and into the following year, with Russ Feingold and Sheldon Whitehouse both trying to make real improvements on the minimization requirements.

The government seems to want to say that Drake’s privacy concerns aren’t a valid whistleblowing concern. Because, I guess, government officials aren’t allowed to whistleblow about citizens’ rights.

Thomas Drake Complained about Michael Hayden Spending $1B to Do What $3M Could Do

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Thomas Drake, the NSA whistleblower, was on 60 Minutes this evening. I’ll have more to say about his appearance and case going forward, but I just wanted to highlight a critical detail revealed by 60 Minutes: the relative cost of Trailblazer–the SAIC implemented program Michael Hayden championed–and ThinThread–the program Drake and others claim was more effective and had privacy protections.

One of them was Lieutenant General Michael Hayden, the head of the agency: he wanted to transform the agency and launched a massive modernization program, code named: “Trailblazer.” It was supposed to do what Thin Thread did, and more.

Trailblazer would be the NSA’s biggest project. Hayden’s philosophy was to let private industry do the job. Enormous deals were signed with defense contractors. [Bill] Binney’s Thin Thread program cost $3 million; Trailblazer would run more than $1 billion and take years to develop.

“Do you have any idea why General Hayden decided to go with Trailblazer as opposed to Thin Thread, which already existed?” Pelley asked.

“I believe he was convinced by others that going with a large-scale, industrial strength solution was the approach that NSA needed to take. You can’t really understand why they would make that kind of a decision without understanding the culture of NSA,” Drake said.

Asked to elaborate, Drake said, “Careers are built on projects and programs. The bigger, the better their career.” [my emphasis]

So Drake was complaining about a program that cost 300 times as much as the one he championed (ultimately, Trailblazer cost $1.2 billion, so actually 400 times as much). It’s not an apples-to-apples comparison. Trailblazer, according to a government filing, worked across more platforms. ThinThread, according to a Siobhan Gorman story, had additional functionality, including privacy protections.

But still, Drake complained about a program that did what ThinThread did–at 300 to 400 times the cost.

As one of the other NSA employees who whistleblew about Trailblazer, J. Kirk Wiebe, explains,

“How does a man see 9/11 happened, know that some part of it is due to corruption and mismanagement and sleep at night. How does a man do that? He obviously couldn’t,” Wiebe told Pelley.

Yet the government wants to put Drake in jail for 35 years because he tried to make sure incompetence that led to 9/11 doesn’t continue.

NSA Twice Chose to Forgo Privacy Protections in Domestic Data Mining Programs

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While Jane Mayer’s profile on NSA whistleblower Thomas Drake has generated a lot of attention for the way Obama’s DOJ is senselessly prosecuting him, there has been less focus on the key revelation that Drake and others went on the record to reveal in Mayer’s story: that the NSA chose not to integrate the privacy protections from a program called ThinThread into its illegal domestic surveillance program.

Pilot tests of ThinThread proved almost too successful, according to a former intelligence expert who analyzed it. “It was nearly perfect,” the official says. “But it processed such a large amount of data that it picked up more Americans than the other systems.” Though ThinThread was intended to intercept foreign communications, it continued documenting signals when a trail crossed into the U.S. This was a big problem: federal law forbade the monitoring of domestic communications without a court warrant. And a warrant couldn’t be issued without probable cause and a known suspect. In order to comply with the law, [Bill Binney, a crypto-mathmetician who headed Signals Intelligence Automation Research Center (SARC) that developed ThinThread] installed privacy controls and added an “anonymizing feature,” so that all American communications would be encrypted until a warrant was issued. The system would indicate when a pattern looked suspicious enough to justify a warrant.

[snip]

When Binney heard the rumors, he was convinced that the new domestic-surveillance program employed components of ThinThread: a bastardized version, stripped of privacy controls. “It was my brainchild,” he said. “But they removed the protections, the anonymization process. When you remove that, you can target anyone.” He said that although he was not “read in” to the new secret surveillance program, “my people were brought in, and they told me, ‘Can you believe they’re doing this? They’re getting billing records on U.S. citizens! They’re putting pen registers’ ”—logs of dialled phone numbers—“ ‘on everyone in the country!’ ”

[snip]

[Former HPSCI staffer Diane Roark] asked Hayden why the N.S.A. had chosen not to include privacy protections for Americans. She says that he “kept not answering. Finally, he mumbled, and looked down, and said, ‘We didn’t need them. We had the power.’ He didn’t even look me in the eye. I was flabbergasted.” She asked him directly if the government was getting warrants for domestic surveillance, and he admitted that it was not. [my emphasis]

Mayer’s actually not the first to report on the decision not to implement the privacy protections of ThinThread. It was the subject of one of Siobhan Gorman’s articles during the period when Drake, according to the indictment, served as a source for her. The article appeared on May 18, 2006, the morning of Michael Hayden’s confirmation hearing to be CIA Director. (Unlike most of Gorman’s articles from the period, this appears to be available only behind the Sun’s firewall. Update: I’ve found a link to the article at CommonDreams.) It describes that since Bush’s authorization for the program required no privacy protections, the NSA just didn’t bother to implement that part of ThinThread.

Once President Bush gave the go-ahead for the NSA to secretly gather and analyze domestic phone records – an authorization that carried no stipulations about identity protection – agency officials regarded the encryption as an unnecessary step and rejected it, according to two intelligence officials knowledgeable about ThinThread and the warrantless surveillance programs.”They basically just disabled the [privacy] safeguards,” said one intelligence official.

A former top intelligence official said that without a privacy requirement, “there was no reason to go back to something that was perhaps more difficult to implement.”

However two officials familiar with the program said the encryption feature would have been simple to implement. One said the time required would have involved minutes, not hours. [my emphasis; bracket original]

In other words, ThinThread came equipped with a measure–encryption–to achieve the same thing as minimization, but before the fact. But in implementing Dick Cheney’s illegal wiretapping, NSA took that protection out of the program. And when asked why he had done that, Michael Hayden explained they didn’t need the protection, not with the Presidential authorization they used to justify the program.

October 2001, as Michael Hayden was implementing Cheney’s illegal program, was not the only time the government chose not to include privacy protections on a data mining program focused on Americans.

As Shane Harris reported in 2006 and in more detail in his book, The Watchers, when the government dismantled John Poindexter’s Total Information Awareness program in August 2003 after Congress defunded it, they didn’t actual dismantle most of it–they just moved it into the NSA. In his book, Harris described Poindexter’s regret that the government had not salvaged the privacy protection research.

But he regretted that the privacy research had been tossed into the dustbin. He’d never felt that the idea got traction, and what little research there’d been would wither without funding. It was a fateful decision, since the agency inheriting TIA would so on enough find itself accused of a massive and illegal incursion into Americans’ private lives.

So in October 2001, NSA affirmatively chose to disable privacy protections in ThinThread, and then again in August to December 2003, the government chose to salvage the data mining aspects of Total Information Awareness, but not the privacy research.

In other words, the government, on at least two occasions, chose not to incorporate existing technology into its data mining program to protect the privacy of Americans. Sort of makes it clear that the Bush Administration wanted to make sure Americans’ privacy wasn’t protected, huh?

 

If Only They Had Listened to Thomas Drake, They Might Have Prevented CableGate

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I’m in the process of reading all the Siobhan Gorman stories for which Thomas Drake might have served as an anonymous source. And one of the ten or so articles for which he’s a possible source exposes the NSA’s failure on an issue at the heart of Bradley Manning’s ability to allegedly leak three major databases to WikiLeaks: adequate user authentication on the network.

The Drake indictment claims that Thomas Drake served as a source for “many” of the Siobhan Gorman articles she wrote about NSA between February 27, 2006 and November 28, 2007.

Thereafter, between on or about February 27, 2006 and on or about November 28, 2007, Reporter A published a series of newspaper articles about NSA, including articles that contained SIGINT information. Defendant DRAKE served as a source for many of these newspaper articles, including articles that contained SIGINT information.

One of her articles from that period, published July 2, 2006, describes how the delay in implementing a new encryption management system for NSA and DOD computers exposed those networks to hackers.

A National Security Agency program to protect secrets at the Defense Department and intelligence and other agencies is seven years behind schedule, triggering concerns that the data will be increasingly vulnerable to theft, according to intelligence officials and unclassified internal NSA documents obtained by The Sun.

[snip]

Encryption, which is an electronic lock, is among the most important of security tools, scrambling sensitive information so that it can ride securely in communications over the Internet or phone lines, and requiring a key to decipher.

Powerful encryption is necessary for protecting information that is beamed from soldiers on the battlefield or that guards data in computers at the NSA’s Fort Meade headquarters.

One of the three big things DOD claims it is doing to respond to WikiLeaks is to introduce smart cards for user credentials on SIPRNet.

DoD has begun to issue a Public Key Infrastructure (PKI)-based identity credential on a hardened smart card. This is very similar to the Common Access Card (CAC) we use on our unclassified network. We will complete issuing 500,000 cards to our SIPRNet users, along with card readers and software, by the end of 2012. This will provide very strong identification of the person accessing the network and requesting data. It will both deter bad behavior and require absolute identification of who is accessing data and managing that access.

In conjunction with this, all DoD organizations will configure their SIPRNet-based systems to use the PKI credentials to strongly authenticate end-users who are accessing information in the system. This provides the link between end users and the specific data they can access – not just network access. This should, based on our experience on the unclassified networks, be straightforward.

Which is precisely the kind of challenge one of Gorman’s named sources in the article addresses.

And as the demand grows for “smart” identification cards with computer chips that verify the card holder’s identity, so does the need for sophisticated ways to manage who is being assigned cards, so that the cards do not end up in the wrong hands, said Stephen Kent, a chief scientist at BBN Technologies who has chaired government panels on information security.

Now, we have no way of knowing whether Drake was one of the 18 sources Gorman used for the article. But a number of her sources seem to compare this clusterfuck with that of Trailblazer–the program Drake and others submitted an Inspector General’s complaint on.

Like other major NSA efforts – such as the failed Trailblazer program to rapidly sift out threat information, and the troubled Groundbreaker program aimed at upgrading the agency’s computer networks – an ever-changing game plan has caused many of the project’s problems, current and former senior intelligence officials said.

Following that passage, Gorman cites a “former senior intelligence official”–the description (the indictment alleges) Drake asked Gorman to use when she cited him.

One former senior intelligence official said that the NSA had unrealistic expectations from the start and repeatedly opted for delays to try to perfect the program. That left the government with aging security protections in the quest for security nirvana, the official said.

“NSA often will say, `Well, this is not totally secure, so you can’t use it,’ when the only alternative is nothing,” the former official said. “My worry is this push for perfect security is the enemy of good security.

And managing the implementation of a new key system sure sounds like something that the “Senior Change Leader” of NSA might be involved with.

Interestingly, the initial deadlines predicted in Gorman’s article–2012–seem to roughly match the deadlines DOD now gives for its smart cards (as well as the insider threat detection, the deadline for which Obama is trying to push back further, though that may be a different issue).

Again, all that’s not proof that Thomas Drake was warning in 2006 that if NSA didn’t fix its management problems, something like CableGate would happen (as well as the widespread hacking we know to be happening).

But 18 people were warning of it back in 2006.

Which is, I guess, DOJ feels the need to prosecute whistleblowers, to cover up embarrassing lapses like this.

The Issues Thomas Drake and Others Whistleblew On Remain Urgent

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I’ve been looking at one of the Siobhan Gorman articles that accused whistleblower Thomas Drake served as a source for. I’ll have more later, but I wanted to point out one main thrust of the story: the NSA had no way of measuring efficacy and controlling costs.

At the NSA, and throughout the government, the Sept. 11 attacks created a crisis atmosphere. Congress responded by pouring money into anti-terrorism efforts, while intelligence agencies scrambled to put new programs in place – often without the planning and oversight needed to succeed, intelligence professionals said.

At an agency-wide meeting at the NSA not long after the Sept. 11 attacks, Michael V. Hayden, then the NSA director, announced a $1 billion budget increase.

But the top-secret agency, based at Fort Meade between Baltimore and Washington, has no mechanism to systematically assess whether it is spending its money effectively and getting what it has paid for, NSA veterans said. One former employee likened it to a neighborhood with no police to enforce the traffic laws.

While this is not necessarily the core of what–per Jane Mayer–the government is prosecuting Drake for, it’s important for this reason. The NSA has been claiming–falsely–to have fixed its clusterfuck accounting system.

In June 2009, the Director of NSA wrote to the Chairman and Vice Chairman, claiming that the NSA was now ―fully compliant with the laws, regulations, and manuals referenced in the U.S. Army Finance Command report and the Federal Financial Managers Integrity Act. The NSA Director‘s letter also stated that the NSA had been able to reconcile its fiscal year 2008 financial records. In July 2009, the Chairman and Vice Chairman wrote to the Secretary of Defense concerning the NSA Director‘s letter. They stated that in light of the NSA‘s past difficulties in producing auditable financial statements, the Committee believed the progress claimed by the NSA should be independently confirmed by the DoD Inspector General. Specifically, the letter requested that the DoD IG conduct a form and content review of the NSA‘s fiscal year 2009 financial statements to determine whether they were supported by reliable and accounting data and supporting information.

The Committee received the results of the DoD IG‘s review in November 2009, which was very critical of NSA‘s claims. Overall, the IG found that the NSA‘s financial statements were not adequately supported by reliable accounting data and supporting information. An even more disturbing finding was that the NSA‘s ―remediation plans do not fully address audit impediments. Specific findings included an inability to reconcile critical general ledger balances, failure to perform required accounting processes, and inconsistencies between the information contained in the notes to the financial statements and the information provided to the IG. The IG‘s findings raised serious questions about the assertions made by the NSA Director in his June 2009 letter and the support he is receiving from the administrative staff involved. [my emphasis]

This is just one reason why the government’s prosecution of Thomas Drake is so outrageous. While his charges pertain to the way in which contracts get picked (rather than to the accounting clusterfuck itself), the prosecution of him–effectively, if Mayer is right, because he refused to falsely claim close allies sourced the illegal wiretap story–serves primarily to intimidate whistleblowers.

It took intelligence oversight committees seven years to prove that NSA wasn’t fixing problems first exposed eight years ago. Yet people were trying–in 2006–to expose the ongoing problems.

And yet the most transparent President seems to be doing everything he can to make sure no one makes similar efforts in the future.

Thomas Drake: The Unclassified Documents the Government Wants to Claim Were Classified

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Jane Mayer, who did such crucial work showing how the Bush Administration chose torture in preference to a more effective, legal interrogation approach, now does similar work explaining that a similar choice of an illegal and ineffective approach over a legal one lies behind the Thomas Drake leak.

As she describes–relying largely on interviews with Thomas Drake, former Congressional staffer Diane Roark, and others with ties to the issue–that Drake and others were targeted because they championed a program called ThinThread over the expensive and ineffective SAIC version, Trailblazer. Both were data mining programs, but ThinThread automatically encrypted US person data. Trailerblazer did not, probably deliberately so. Between championing the wrong (but probably more effective) program, and submitting an Inspector General’s complaint about Trailblazer in 2002, Drake, Roark, and the others were targeted as potential leakers of the warrantless wiretap program.

Ultimately, in an effort to pressure Drake to testify falsely against they others and using evidence collected ostensibly in search of leads on the warrantless wiretap case, they cobbled together a charge based on five documents of disputed classification.

For four months, Drake continued coöperating. He admitted that he had given Gorman information that he had cut and pasted from secret documents, but stressed that he had not included anything classified. He acknowledged sending Gorman hundreds of e-mails. Then, in April, 2008, the F.B.I. told him that someone important wanted to meet with him, at a secure building in Calverton, Maryland. Drake agreed to the appointment. Soon after he showed up, he says, Steven Tyrrell, the prosecutor, walked in and told him, “You’re screwed, Mr. Drake. We have enough evidence to put you away for most of the rest of your natural life.”

Prosecutors informed Drake that they had found classified documents in the boxes in his basement—the indictment cites three—and discovered two more in his e-mail archive. They also accused him of shredding other documents, and of deleting e-mails in the months before he was raided, in an attempt to obstruct justice. Further, they said that he had lied when he told federal agents that he hadn’t given Gorman classified information.

“They had made me into an enemy of the state just by saying I was,” Drake says. The boxes in his basement contained copies of some of the less sensitive material that he had procured for the Inspector General’s Trailblazer investigation. The Inspector General’s Web site directs complainants to keep copies. Drake says that if the boxes did, in fact, contain classified documents he didn’t realize it. (The indictment emphasizes that he “willfully” retained documents.) The two documents that the government says it extracted from his e-mail archive were even less sensitive, Drake says. Both pertained to a successor to Trailblazer, code-named Turbulence. One document listed a schedule of meetings about Turbulence. It was marked “unclassified/for official use only” and posted on the N.S.A.’s internal Web site. The government has since argued that the schedule should have been classified, and that Drake should have known this. The other document, which touted the success of Turbulence, was officially declassified in July, 2010, three months after Drake was indicted.

In other words, after targeting Drake in the warrantless wiretap leak but not having any evidence to make a case, they charged him with espionage for having followed protocol on submitting an Inspector General complaint and keeping one email marked unclassified and another that has since been declassified. For that they want to send him to prison for 35 years.

As I laid out the other day, the government is claiming it can treat the parts of these five documents that even its expert has determined to be unclassified as they would treat classified information in CIPA.

In other words, it seems the defense planned to (and did not object to the evidence in the binder based on that plan) to cross-examine [the government’s expert] on the substance of her decisions about what was and was not classified in the documents Drake is alleged to have illegally retained and copied. It goes to the heart of the case against Drake. But the government wants to hinder the defense efforts by making sure that even things Murray decided were unclassified can’t be revealed in raw form to the jury.

And of course, as Drake points out in his interview with Mayer, the bigger thing the government is trying to hide is the cheaper, more effective program that preserved privacy rights they ignored in favor of the illegal wiretap program.

There’s lots more in the story–including Michael Hayden explaining to Roark that the government chose not to protect Americans’ privacy in the warrantless program because they “had the power” not to.

She asked Hayden why the N.S.A. had chosen not to include privacy protections for Americans. She says that he “kept not answering. Finally, he mumbled, and looked down, and said, ‘We didn’t need them. We had the power.’ He didn’t even look me in the eye. I was flabbergasted.” She asked him directly if the government was getting warrants for domestic surveillance, and he admitted that it was not.

Go read the whole thing.

Government Claims Classified Information Procedures Act Also Applies to Unclassified Information

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The government’s making outrageous secrecy claims again, this time in the Thomas Drake NSA leak case.

As Steven Aftergood first reported, the government is trying to protect unclassified information using the CIPA process, basically making substitutions for information that its own expert says is not classified. They’re doing this by citing the National Security Agency Act, which protects National Security Agency information in civil cases; for precedent, they’re citing a bunch of civil cases, primarily FOIA. In other words, they’re trying to use civil standards to gain an advantage in a criminal case, using a tool the name of which–Classified Information Procedures Act–makes clear that it applies only to classified information.

Just as interesting as yet another example of the government abusing legal process to try to expand government secrecy is what appears to be their goal.

The defense explains that the government dumped this claim on the defense after the preliminary CIPA discussion happened, basically just informing the defense it would provide substitutions for unclassified information by actually proposing substitutions.

Of the government’s proposed substitutions, roughly a quarter of it substituted unclassified information.

Among the objections noted by the defense was the fact that the government had proposed a significant number of substitutions or redactions for unclassified information, a measure that CIPA does not permit or contemplate. This included information in the government’s own exhibit binder that its classification expert has deemed unclassified. The defense estimated that approximately 25% of the proposed substitutions were for unclassified information.

And it appears that the government is trying to obscure unclassified information in five documents that–the indictment alleges–Drake improperly retained.

The proposals included substitutions/redactions for unclassified information in the five allegedly classified documents charged in the willful retention counts.

The indictment describes those five documents this way:

  • A classified email entited “What a Success”
  • A two-page classified document deemed “the Regular Meetings” document
  • A four-page document “bearing the features of an email” titled “Volume is our Friend”
  • A three-page titled “Trial and Testing”
  • A five-page email titled “the Collections Sites”

Now, the fact that the government is trying to substitute information for unclassified information from these five documents is crucial to the way the other charges piggyback on the charges relating to each of these documents. In addition to four false statement charges and one obstruction charge that hinge on Drake’s claims about whether the information he took was classified, one of the false statement charges pertains to Drake’s claim that he only cut and paste unclassified information into a Word document.

As the defense notes (complaining that they had to reveal their defense strategy during the CIPA substitution hearings), they intend to cross-examine the government’s expert about whether this stuff is really classified.

During the four-day substitution  hearing, the defense continually noted its objection to the substitution of unclassified information considered “protected material” by the government. When asked by the Court to respond to the proposed substitutions, the defense was required to reveal its strategy, particularly as it relates to the cross-examination of the government’s expert, Ms. Murray. This, too, significantly prejudiced Mr. Drake and gave the government undeserved insight into defense strategy, which will not be reciprocated.

As it happens, when the defense first got the government’s binder full of evidence, it had Murray’s notes explaining the basis for her decisions on what was and was not classified.

On April 25, 2011, the government provided the defense with a binder of classified exhibits that it intends to introduce at trial. The exhibits in the binder contained both classified and unclassified information. Significantly, the government’s exhibits also contained numerous handwritten annotations by its classification expert, Ms. Catherine Murray, that reflect Ms. Murray’s opinion about which portions of the documents she deems classified and which portions of the documents she deems unclassified.

In other words, it seems the defense planned to (and did not object to the evidence in the binder based on that plan) to cross-examine Murray on the substance of her decisions about what was and was not classified in the documents Drake is alleged to have illegally retained and copied. It goes to the heart of the case against Drake. But the government wants to hinder the defense efforts by making sure that even things Murray decided were unclassified can’t be revealed in raw form to the jury.

It almost makes you wonder whether they hadn’t checked with their own experts before charging Drake, and belatedly discovered that much of it–according to their own expert–is not classified, and are now trying to endow that unclassified information with additional gravity by hiding it behind CIPA substitutions.

House Intelligence Staffer Tried to Intervene on Illegal Wiretap Program

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Scott Shane and Eric Lichtblau tell a sort of weird story of how a House Intelligence Committee staffer, Diane Roark, tried to reach out to William Rehnquist to get him to review Dick Cheney’s illegal wiretapping program.

Within months of the beginning of the eavesdropping program in October 2001, a staff member of the House Intelligence Committee, alerted to the possibility of illegal spying by N.S.A. insiders and hoping to prompt a high-level legal review, wrote to Chief Justice Rehnquist asking for a meeting, according to several people familiar with the episode.

The Congressional staff member, Diane S. Roark, routed the letter through the chief justice’s daughter, Janet Rehnquist, then the inspector general of the Department of Health and Human Services; Ms. Rehnquist was a high school acquaintance of one of Ms. Roark’s N.S.A. contacts.

There was no response, and it is not known whether the letter was seen by the chief justice or prompted him to make inquiries.

What’s weird about the story, first of all, is the method of approach. Are you telling me there are Congressional staffers who think Rehnquist could have legally reviewed this program in response to a request sent via his daughter (though it sounds like something Arlen “no longer Haggis or Scrapple” Specter might try)?

But then there’s a detail that Shane and Lichtblau don’t mention: Roark left HPSCI just after this attempt to have Rehnquist review the illegal wiretap program, ostensibly retiring. Read more →