War-on-whistleblowers prosecutor William Welch continues his suspect strategy in the latest filing in the case against whistleblower and former NSA senior official Thomas Drake. Welch has initiated another outrageous government attempt to silence any meaningful debate at Drake's trial, now set for June 2011.
Josh Gerstein of Politico reports that Welch is now seeking to have sealed already publicly-released letters marked "Unclassified//For Official Use Only" that Welch himself wrote to Drake's defense team. Drake's defense team filed the letters in response to another Welch absurdity - the government's motion to prohibit mention of over-classification at trial.
Defense lawyers filed the letters with the court on Friday as part of the defense's opposition to a prosecution request to bar challenges to the classification system during trial. The letters set forth the reasons that various documents relevant to the case were classified and offer basic information about classification markings and standards.
Welch's latest request is an obvious attempt to keep details of Drake's trial out of the public eye, and away from public criticism.
It is no wonder Welch wants to hide, as so far public filings indicate underhanded government tactics and the same sorts of discovery abuses that landed Welch himself under investigation for professional misconduct in the botched prosecution of the late former Senator Ted Stevens.
Gerstein rightly points out the illogicality of Welch's request:
The most glaring problem with the prosecution's request is that the documents have been accessible to the public through the court's docketing system for almost five days and remained there as of Wednesday night. They are also posted here on the website of the Federation of American Scientists' Project on Government Secrecy. Removing them from the court docket at this point would not flush them down the memory hole.
Prosecutor Welch is demanding the letters be sealed despite the fact that
Prosecutors did not cite any particular harm that would arise from disclosure of the letters about Murray's testimony, which were marked "Unclassified/For Official Use Only."
Perhaps Welch should consider a rare pro-transparency move his boss, Obama, undertook: Executive Order 13556, which dictates that Controlled Unclassified Information designations do not have a bearing on whether or not something can be released publicly, under the Freedom of Information Act for example. EO 13556 mandates that,
The mere fact that information is designated as [Controlled Unclassified Information] shall not have a bearing on determinations pursuant to any law requiring the disclosure of information or permitting disclosure as a matter of discretion, including disclosures to the legislative and judicial branches.
Welch's request is even more absurd considering that Drake is charged under the Espionage Act for improper handling (retention) of classified information. Yet, Welch is now saying that the public filings, marked "unclassified," that Welch himself wrote should not be public. Confused? Were Welch's letters mislabeled "unclassified?" Can we expect another Espionage Act prosecution? Can Welch indict himself?
If Welch wants to send secret but unclassified letters to defense counsel and have secret criminal trials using secret codes, he should not be prosecutor in the American justice system. Let's hope that's how Judge Bennett sees it.
Nevertheless, for those of you who are monitoring the case, you had better save a hard copy of the letters in case Welch successfully has them thrown into the secrecy black hole he would like Drake's trial to become.