The Government’s Thomas Drake Case Crumbles

As I noted the other day (and Josh Gerstein first reported), the government has chosen to withdraw two exhibits and redact discussion of a certain technology from another in the Thomas Drake case.

Ellen Nakashima appears to reveal that those three documents were three of the five charged documents.

According to people following the case, the government may have to drop two Espionage Act counts that relate to information that Drake submitted to the Defense Department inspector general between 2002 and 2004 to buttress colleagues’ complaints about waste, fraud and abuse of a bungled NSA data-sifting program, Trailblazer. He and his former NSA colleagues thought the complaints were confidential.

The evidence for those two counts is contained in Exhibits 42 and 43, according to the sources. Prosecutor William M. Welch II, in a letter Sunday to Bennett, a U.S. District Court judge in Baltimore, said those exhibits will be withdrawn. The letter was first reported by Politico.

Another exhibit, numbered 41, also consisting of information Drake submitted to the inspector general, is intended to support a third Espionage Act count that may also be dropped, the sources said. That exhibit will be redacted, the prosecution has said.

So two, maybe three charges out the door there. And, as Nakashima reminds, the other two charged documents are the ones NSA declassified not long after they were found on Drake’s computer.

Apparently, the government plans to get up before a jury with three documents in a trash can, two others that appear to be a classic case of overclassification. Another charge alleges that Drake lied about passing classified information to Siobhan Gorman; the government will have to prove that with either now-declassified information or information they can’t enter into evidence. Then there’s the charge that alleges that Drake lied about bringing classified documents home; if I understand Nakashima’s story right, then the government is in the process of throwing out the three purportedly classified documents they found at his home.

There are a few more charges: for example, after complaining to the jury that Drake left classified documents lying around at his home, they’re going to ask the jury to convict him for destroying classified information so it wouldn’t just be lying around his home.

Mind you, they might dink and dunk a charge here or there. But in the process they’re going to look like loony-bins, sniffing around in a guy’s basement for not-really classified information.

  1. radiofreewill says:

    OT, but related, are the hackers cashing-out?

    If so, then now might be a good time for all of us to take reasonable steps to protect ourselves, such as changing passwords and PINs, in order to tighten our defenses against unauthorized access to Cash accounts, in particular.

    We could be in for a modern day crime wave as the feds flush-out the cyber underworld…

  2. radiofreewill says:

    EW – I wonder if a Senate investigation into the Section 215 ‘interpretation’ issues that you’ve recently highlighted might make prosecuting Drake ‘look the same as’ prosecuting Deep Throat for the Watergate leak?

    Bush may have made a legal argument along the lines of ‘my executive branch intelligence operations are mine, and not subject to Congressional or Judicial review’ – the parallels to Nixon’s tapes are clear.

    In another parallel with Watergate, Nixon’s first response to the story breaking was to try and declare it a matter of national security and smother it in secrecy…

    • emptywheel says:

      I’m not entirely sure how that would be.

      There’s a good chance this interpretation post-dates 2008, so after Drake lost all access. And while I believe the end process of Section 215 is the collection of more databases–and I believe that ThinThread may have accessed data on the net rather than out of databases–I think the interpretation here is just in the broadness of collection (that is, it’s distinct from the technical issues which are at issue in the trial, but probably not the privacy ones that have been compartmented out of the trial.

      Also note, Section 215 wasn’t used at all until 2006. While I believe it was used as an alternative way to collect the same info that had been collected via executive order (which would support your argument) that’s still sort of late to be relevant to some of the key Drake leaks.

      • radiofreewill says:

        I see, thanks, as always!

        I guess it’s the un-auditable ‘pixie-dusting’ – as you’ve so aptly called it – that’s made me skeptical of the transparency necessary for our Constitutional system to have meaningful checks-and-balances – ones that protect the citizens from the power of the government to encroach on our basic rights to personal freedom and self-determination.

        I’m probably stretching it to use Drake to point beyond the technical particulars of his situation, but what I ‘heard’ him say was that his ‘thin thread’ got steam-rolled by the circa 2006 version of ‘the beast’ – a 21st century version of a cancer on the presidency, so to speak – that has been growing and evolving steadily for years – unchecked in actuality.

        If the Senate does take-up the question of the Administration’s interpretation of Section 215, then I don’t see how they can avoid confronting the challenge that ‘pixie-dusting’ poses to the safe-guarding of our interests against secret government; and pointing out the long history of the collection programs getting serially corralled – only to morph away to another ‘dark’ spot until found, again, only bigger.

        To chase Drake around the room and not deal with the pixie-dusting 800-lb gorilla that you pointed out – well, that just wouldn’t be right.