In Thomas Drake Case, Protected Doesn’t Mean Protected

Earlier today, we learned that (thanks to Antonin Scalia) the word “suspicion” no longer means what it used to mean.

Now we learn that “protected” doesn’t mean what it used to mean.

As Josh Gerstein reports, the judge in the Thomas Drake case has agreed to let the government protect unclassified information using the Classified Information Procedures Act. But as Drake’s lawyers make clear, the process of substitution is making unclassified information look classified.

Defense lawyers contend the prosecutions proposed substitutions would be obvious to jurors, despite Bennett’s ruling that they they should be “seamless.” Prosecutors say some of the changes will be seamless but others cannot be because they pertain to handwritten notes that can’t be modified without jurors noticing.

Defense lawyers also say that if jurors are aware of the changes, they’ll conclude that the information Drake is accused of mishandling is worthy of being treated as national secrets. “This will signal to the jury that the Court and the government believe information in the document was so potentially damaging to national security that it had to be withheld from the public — the very fact they must decide,” defense attorney Deborah Boardman wrote in a filing Monday.

Most interesting, though, is the Defense observation that one of the documents the government will introduce at trial defines “protected” differently than the government is defining it to claim it must be substituted under CIPA.

The defense has briefed its position on the Court’s decision to impose substitutions for relevant, unclassified information that the government deems “protected,” and we will not reiterate our arguments here. However, we thought the Court should be aware of the fact that NSA, in its employee Security Agreements, defines the term “protected information” in the following manner: “information obtained as a result of my relationship with NSA which is classified or in the process of a classification determination pursuant to the standards of the Executive Order 12958.” Thus, according to an NSA document, which will be a government exhibit in this case, “protected information” is “classified” information. However, the government has led the Court to believe that “protected information” is unclassified information that NSA claims deserves protection. NSA cannot have it both ways. [my emphasis]

That might make sense if language worked the way it’s supposed to. But it appears we’ve entered that stage of late Empire where words don’t mean what they used to mean anymore.

  1. rugger9 says:

    At some point it will become apparent to everyone that the pretzel logic has morphed into a slime ball. It won’t happen while the RW ideologues continue to actively make law from the bench [in violation of stare decisis and their declared intentions, like SCOTUS chief Roberts].

    God help the Constitution, Animal Farm is already in America.

  2. bobschacht says:

    Ah, yes, we have entered that Brave New World of Doublespeak, foreseen already by “Lewis Carroll” in Alice in Wonderland.

    Speaking of strange goings on in the Courts, how about Legal Team for Abu Ghraib Victims: U.S. Ignores Torture in Supreme Court Brief? [ref. Haidar Muhsin Saleh, et al. v. Titan Corporation, et al., No. 09-1313.] On what basis is our Department of “Justice” arguing that the Supremes shouldn’t hear the case?

    Filings in the case are available here.

    Bob in AZ

    • bmaz says:

      I am not only not surprised, I do not think the decision below that is complained of is necessarily wrong on the central issue. This is an issue of federal preemption, not torture per se. Quite frankly, there should be federal preemption in this type of area, it encourages a hodgepodge of anomalous results if these kind of claims can be handled willy nilly with 50 different standards in 50 different states. Just because one is against torture does not mean that inefficient and inappropriate jurisdiction should be encouraged to address it. I am not sure that the government is wrong here in arguing to deny cert, in fact I think they are right.

      The more troubling area of the government’s brief is their insistence that there are reasonably accessible and available federal remedies under the FTCA (where the federal government fights said claims like a wounded dog) and, somewhat ironically, in the Iraqi justice system. The government, through Katyal is saying there is a sufficient remedy under FTCA while at the same time knowing full well they relentlessly fight and discourage the invocation of every such claim made. The desire folks feel for an available and fair forum and method to address torture claims is commendable, and so there should be such an animal, but encouraging piecemeal forum shopping and divergence of process that would occur if left to the various state courts is a bad idea.

    • EternalVigilance says:

      We live in a post legal society.

      I’d say it’s more accurate to describe it as “post legal fiction” society.

      The “law” has only ever been a tool of force, by which the powerful who make the laws control the weak who must obey them.

      It’s simply disembodied violence.

      The only thing that’s changing now is a greater awareness of the fiction of equality under the law and the like.

      While the laws themselves may appear more draconian, the only reason they weren’t draconian before was that they didn’t need to be, because the people had fewer means to learn from each other and to organize, and thus posed a smaller threat to those who hold power.

      America’s legal system is like the Mafia boss who’s finally showing his true colors – that he was nice to people in the neighborhood before wasn’t an indication of his underlying character, it was simply an indication there wasn’t threat that would cause his true character to be revealed.

      Again, the only thing that’s changing is we’re waking up to what’s always been the reality.

  3. Tominator says:

    Interesting post. Would you guys consider doing away with italics to improve readability on all block quotes? It’s a block quote so you don’t need to ital it and if the point is to add emphasis it hurts readability.

    Italics are only intended for short phrases or words, not long block quotes. See the following:

    Italics are quite handy for emphasising words or short phrases. They tend to have a softer emphasis than emboldening. Italics should not be used for blocks of text, because they can have a similar effect to serif fonts at small resolutions, reducing readability. Sans-serif fonts that work well on screen can have poor readability in italic form.

  4. ubetchaiam says:

    “But it appears we’ve entered that stage of late Empire where words don’t mean what they used to mean anymore.”

  5. sapphirebulletsofpurelove says:

    it appears we’ve entered that stage of late Empire where words don’t mean what they used to mean anymore.

    The meaning of words had no longer the same relation to things, but was changed by them as they thought proper. Reckless daring was held to be loyal courage; prudent delay was the excuse of a coward; moderation was the disguise of unmanly weakness…

    He who succeeded in a plot was deemed knowing, but a still greater master in craft was he who detected one. On the other hand, he who plotted from the first to have nothing to do with plots was a breaker up of parties and a poltroon who was afraid of the enemy. In a word, he who could outstrip another in a bad action was applauded, and so was he who encouraged to evil one who had no idea of it. The tie of party was stronger than the tie of blood, because a partisan was more ready to dare without asking why. For party associations are not based upon any established law, nor do they seek the public good; they are formed in defiance of the laws and from self-interest.

    Thucydides 3.84, translated by Jowett

    Nothing has changed. We aren’t post-anything.

    • ubetchaiam says:

      “All obstructions to the execution of the laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency. They serve to organize faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation the will of a party, often a small but artful and enterprising minority of the community; and, according to the alternate triumphs of different parties, to make the public administration the mirror of the ill-concerted and incongruous projects of faction, rather than the organ of consistent and wholesome plans digested by common counsels and modified by mutual interests. “—George Washington’s Farewell Address.

  6. Oregon says:

    Dance with the devil, don’t be surprised when he steps on your toes.

    Once you decided to work for the NSA….

    It’s a post-legal world baby.