Government Claims Classified Information Procedures Act Also Applies to Unclassified Information

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.

  1. JohnLopresti says:

    OT, relatively, April 16, 2011, heard Amy Goodman interview Thomas Tamm regarding warrantless wiretap whistleblowing; first part of transcript.

  2. JTMinIA says:

    Shall we name this one “Dixie Pust,” since it appears to be the opposite of the Cheney trick?

    ps. no offense intended against southern redneck can’t-get-over-losing-the-Civil-War types :)

    • mzchief says:

      { LOL } The MOTU’s heads are spinning as the garbage spews out from their mouths. Who’s that puny little man behind the curtain working the levers?

  3. orionATL says:

    it really is past time that the federal judiciary was put under a media microscope and those of their deficiencies in law, legal reasoning, courage, or whatever,

    that have allowed the doj to persist in and expand its legal sophistry,


    this kind of crap from the doj would stop if a few jurists would call “bullshit” loudly (or if eric holder were any kind of leader).

      • onitgoes says:

        yep. manning pulled back the curtain and showed the nasty vermin at work. Can’t have that!

        The sad thing is, the leaks attributed to manning really aren’t all that breathtaking, nor were most of them that revealing. A lot of the information was out in the public sphere already in other media.

        Just that manning wasn’t operating via “accepted channels,” so he had to be slapped down as a warning to the rest of us (at least those sentient enough to be actually paying attention).

  4. ottogrendel says:

    If Control is controlled by its need to control, it helps to have new things to control after the old things have been secured. So, after the control of classified information is accomplished, Control moves on to the unclassified stuff. What else follows? The control of public information? The control of common knowledge? Giving Creationism equal classroom time along side evolution is a small example of the efforts of control-addicts.

    “How can I help seeing what is in front of my eyes? Two and two are four.”

    “Sometimes, Winston. Sometimes they are five. Sometimes they are three. Sometimes they are all of them at once. You must try harder. It is not easy to become sane.” –“1984” George Orwell

    • mzchief says:

      The party claims that instead of India Shining it has presided over India ‘Achieving’. Achieving what? In the case of Slumdog, India’s greatest contribution, certainly our political parties’ greatest contribution is providing an authentic, magnificent backdrop of epic poverty, brutality and violence for an Oscar-winning film to be shot in. So now that too has become an achievement? Something to be celebrated? Something for us all to feel good about? Honestly, it’s beyond farce.

      (except from “Arundhati Roy on Slumdog Millionaire II,” Mar. 2, 2009)

      If we look at the world’s infrastructure created in the last couple of hundred years, what does humanity really have to show for our efforts? We definitely have this speed-of-light world-wide communications system by which record numbers of people (in the millions) communicate in real-time. Besides the massive destruction from war and resource extraction/mismanagement, the rest is pretty shabby or laughable like the petro-based ghost city of Ordos (stupid to base decisions on GDP) as folks are still so bought into what turns out to be agnotologic “capitalism.”

  5. EternalVigilance says:

    yet another example of the government abusing legal process

    Color me shocked. Shocked, I tell you!

    No, seriously – there are government agents here with a car battery hooked up to my testicles.

    bzzzzt Ow! zzzapp Stop that! bbzzZZZtttTT

  6. swampfox1000000 says:

    Is there a good general, with a legal background,
    a believer in good in the universe, who can prosecute (?:)

    the murdered:
    MLK, RFK, JFK, G. Wallace (would’ve split vote–attempted murder;)
    Jim Croce, Richie Valens, Buddy Holly,

    E. Howard Hunt’s wife (commercial air crash–en route to
    testimony, Watergate)

    many many more.


    King of all Kingdoms across the Universe. I actually honestly believe you
    will go to Hell.

  7. swampfox1000000 says:

    Is there a good general, with a legal background,

    a believer in good in the universe, who can prosecute (?:)

    the murdered:

    MLK, RFK, JFK, G. Wallace (would’ve split vote–attempted murder;)

    Jim Croce, Richie Valens, Buddy Holly,

    E. Howard Hunt’s wife (commercial air crash–en route to

    testimony, Watergate)

    many many more.



    King of all Kingdoms across the Universe. I actually honestly believe you will go to Hell. I have many reasons for this, but you are my

    final proof.

    • bmaz says:

      Hi there Mr. Fox. You seem somewhat new here, and indeed a check though our records confirms just that. Couple of ground rules you should be aware of. One is no littering a comment with a bunch of unexplained serial links. That is bad form; if you have something on topic to contribute, do so and specifically detail what your link is and why it is relevant.

      Secondly, as a general rule, we are not overly hep on wild conspiracy theories and rants. Spewing out a bunch of names, off the topic of the post and discussion thread and demanding generals with law backgrounds is, quite frankly, …well, let me be polite instead of saying what I was really thinking…that is bad form too and is not going to fly here.

      So, in short, welcome, but stick with the program if you want to stick around.

      • earlofhuntingdon says:

        My, that looks like a computer-generated rant. Let’s see if you get a readable reply, or one that says, “retype the following characters in the box below”.

  8. NMvoiceofreason says:

    There is a much more succinct description of substituting documents ordered by a court.

    It is called fraud.

    Prosecute them, and throw in a contempt charge to boot.

      • emptywheel says:

        Remember, this is William Welch in charge of this prosecution. The same guy who bolloxed up the Ted Stevens prosecution with his unethical stunts?

        I’m sure HE wouldn’t do anything wrong.