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In its third editorial about the Espionage Act prosecution against National Security Agency (NSA) whistleblower Thomas Drake, the conservative Washington Post (WaPo) editorial board opines that the Drake case demonstrates how dysfunctional the classification system has become.

Just before the Justice Department's case against Drake collapsed in spectacular fashion days before trial last summer, WaPo ran two editorials critical of the prosecution. (here and here).Then, former classification czar under G.W. Bush, J William Leonard, was slated to testify as a defense expert for Drake and called the case the most "deliberate and willful example of government officials improperly classifying a document," he had ever seen.

In the year since the prosecution fell apart, WaPo obtained one of the documents that formed the basis of an Espionage Act charge against Drake, which prompted WaPo to opine again - this time sarcastically - on the flimsy evidence the government used to threaten Drake with spending "the rest of his natural life" behind bars:

A document at the center of the Drake case was a classified e-mail summarizing an agency meeting. The e-mail was titled “What a Wonderful Success.” It is an innocuous, self-congratulatory message to a team for its presentation to the director, Gen. Keith Alexander. Two paragraphs were classified “secret.” Now that the e-mail has been released, everyone can see what was so sensitive. One of the paragraphs included the hush-hush fact — be careful if you finish reading this sentence — that Gen. Alexander left a conference room and greeted people in a lab who had worked to make sure the demonstration was a success.
Last summer, WaPo articulated the chilling effect the Drake case has on potential whistleblowers:
Mr. Drake’s prosecution smacks of overkill and could scare others with legitimate concerns about government programs from coming forward.
Again, the WaPo editorial board understands the larger implications of using the classification to cover-up embarrassing government conduct:
The more that classification is used to hide the trivial, inconvenient or embarrassing, the less useful it is for genuine national security secrets.
Prosecuting whistleblowers under the Espionage Act (an action the Obama has taken twice as many times as all past presidents combined) serves neither the public - it chills potential whistleblowers - nor national security - it undermines the classification system.

The fact that even the conservative WaPo editorial board recognizes the grave implications of charging employees under the Espionage Act for allegedly mishandling improperly-classified, innocuous information should serve as a wake-up call to the Obama administration, which is currently doggedly pursuing four other Espionage Act cases against alleged so-called "leakers," who are usually whistleblowers.

The threats are beyond those to whistleblowers. Attuned to the hypocrisy of the Obama administration prosecuting low-level and mid-level employees for alleged "leaks" while feeding simultaneously pro-government information to the press, the Senate Intelligence Committee approved a series of measures to crackdown on employees, which are more likely to chill legitimate free speech than stop so-called "leaks."

I have long-warned that the Espionage Act cases could be used as a back-door way of going after journalists. The Justice Department's Espionage Act case against former CIA official Jeffery Sterling has already swept up New York Times reporter James Risen, who was subpoenaed three times to testify about his alleged source. In that case, the Justice Department most recently argued that, despite the fact that legal precedent clearly dictates otherwise, there is no reporter's privilege in a criminal case.

The latest revelation that the information used to prosecute Drake under the heavy-handed Espionage Act was so obviously innocuous and unclassified should give the Justice Department pause before continuing to pursue similar whistleblowers, such as CIA whistleblower John Kiriakou, whose case is set for trial in November.

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