As Josh Gerstein just reported, the government has decided to withdraw some evidence against Thomas Drake rather than come up with CIPA substitutions that would give Drake the ability to defend himself. At issue is “NSA’s targeting of a particular telecommunications technology,” which the government wants to hide. To avoid mentioning it, they are now withdrawing four documents entirely and redacting references to the document in two other documents.
In Gerstein’s article, Steven Aftergood cautions that this won’t necessarily help Drake avoid prosecution.
The prosecutors’ decision has echoes of the 2009 Justice Department decision to drop its long-running prosecution of two pro-Israel lobbyists after a series of adverse rulings from a federal judge in Virginia. However, in Drake’s case, no charges have been dropped, just a portion of the proof the government wanted to offer.
“From the government’s point of view, this ruling is not a reason to reconsider the prosecution. They’re not pulling back. They’re simply reordering their case,” said Steven Aftergood, a classified information expert with the Federation of American Scientists.
“In the fantasy of Drake suppoorters, the [judge’s] ruling could have been a pretext for withdrawing the prosecution, as happened in the [American Israel Public Affairs Committee] case but that’s not choice they’ve made. They’ve said, ‘We’ll go ahead and work around that obstacle,'” Aftergood added.
That may well be the case. But I’m curious to see how Drake’s lawyers respond to this. The government has been trying (somewhat unsuccessfully) to exclude documents discussing the relative merits of ThinThread over Trailblazer on relevancy and hearsay grounds, including the IG Report at issue in the case. Mind you, none of them apparently discussed this technology (the government is withdrawing its own exhibits, not objecting on CIPA grounds to Drake’s). And Judge Richard Bennett obviously thought a somewhat revelatory description of this technology was important to Drake’s defense.
Ultimately, after all, Drake is planning to argue that the reason he saved certain documents was to demonstrate the inefficacy (and probably privacy problems) of the government’s plans. By withdrawing these documents–which obviously must have been relevant to the five charged documents–are they hurting Drake’s ability to make this argument?