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The Congressional Research Service (CRS), which normally publishes stellar reports, just did one on Criminal Prohibitions on the Publication of Classified Defense Information.

Even the title is misleading because it conflates two different concepts--"National Defense Information" (language from the Espionage Act) and "Classification" (language from an Executive Order issued decades later)--that lie at the heart of why the government's attempts to use the Espionage Act against people alleged to have mishandled classified information have failed.

The thing I found most dangerous, however, is how utterly sloppy and wrong it got the very public facts of my client Tom Drake's case. Why is that so? Because the report parrots the government's breathless, oft-repeated (and incorrect) meme: journalists, you don't have to worry--we realize you occupy hallowed and sacred ground in our democracy--we're only going to criminally prosecute your sources.

As to the case of NSA whistleblower Thomas Drake--who exposed a multi-billion-dollar, intrusive, failed domestic surveillance program when a cheaper, effective, and privacy-protecting alternative was available--I will correct the paragraph on him sentence-by-sentence:

The Obama Administration is taking a relatively hardline stance with respect to those suspected of leaking classified information to the press, with six prosecutions currently under way or completed (including Bradley Manning).
This is sentence is factually wrong because while Obama is taking a draconian stance, the Drake case involved neither "leaking" to the press (he was charged only with "retention") nor "classified" information (the documents at issue were unclassified.) Nowhere does the report mention that the six people charge under the Espionage Act for mishandling classified information (there are actually seven) are whistleblowers.

The next sentence states:

A former National Security Agency (NSA) official, Thomas A. Drake, recently agreed to plead guilty to exceeding authorized use of a government computer in violation of 18 U.S.C. Section 1030(a)(2)(B) (a misdemeanor), after the government dropped more serious charges under the Espionage Act, among other offenses.
This is wrong on two points.  Drake didn't agree to plead guilty until after the government agreed to drop the charges.  And the government didn't just drop the "more serious charges"--it dropped ALL ten felony charges against Drake.

The sentence after that states:

Mr. Drake was initially investigated beginning in 2007 in connection with the New York Times’ revelations regarding the Bush Administration’s warrantless surveillance program, but was eventually charged in connection with providing classified information that revealed alleged NSA mismanagement to the Baltimore Sun.
The investigation into the sources for the Times' warrantless wiretapping article began in 2005. More significantly, none of the charges against Drake state that he provided classified information to the Baltimore Sun--or to anyone.

Finally, perhaps the worst sentence of all:

The prosecution eventually dropped most of the charges after the judge ruled that the government’s proposed substitutions for documentary evidence it sought to introduce would not provide an adequate opportunity for the defendant to present his case.
The prosecution dropped not "most," but all of the charges because the judge ruled that the information the government claimed was "classified" was entirely unclassified.

Why the mistakes? The Congressional Research Service is too smart to do such shoddy research (if it had questions, it could have contacted me because the report discusses at least two of my clients)--so I can only draw the conclusion that CRS intended, consciously or not, to bolster the government's breathless claims that

while unlawful acquisition of information [by whistleblowers and sources] might be subject to criminal prosecution . . . publication of that information remains protected.
And I debunk that notion here because even journalists recognize that the war on their sources is a war on them, and both are chilled by the government's unprecedented war on information.
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Comment Preferences

  •  Tip Jar (16+ / 0-)

    My book, TRAITOR: THE WHISTLEBLOWER & THE "AMERICAN TALIBAN," is Amazon's #1 Best Seller in Human Rights Books for February 2012.

    by Jesselyn Radack on Fri Feb 15, 2013 at 05:32:18 AM PST

  •  env taking up Rec list. Slim chance for this post (5+ / 0-)

    Thanks for keeping the issue alive here at DK. Your ongoing coverage of this topic is important here to be reminded about what the government is doing.

    So much of what goes on is hidden by secrecy and the intimidation of those who tell us what our government is doing are hit hard.

    Here is another thing so absurd that it is hard to figure out. The US government has proposed new medals for drone pilots, but refuses in court to acknowledge the existence of the drone program. Obama talks about it as well of reports from around the world, but in order to shield those who do these things it is denied even getting a hearing.

    It is not news that the US government systematically abuses its secrecy powers to shield its actions from public scrutiny, democratic accountability, and judicial review. But sometimes that abuse is so extreme, so glaring, that it is worth taking note of, as it reveals its purported concern over national security to be a complete sham.
    I highlighted the bold. National security is a sham to hide from US citizens our security state and military actions in the world.

    Here is the article:

  •  Research Unbecoming the CRS (3+ / 0-)
    Recommended by:
    aliasalias, David Futurama, allenjo

    Diarist provides an excellent summary and analysis on the major failings and errors of the CRS Report entitled Criminal Prohibitions on the Publication of Classified Defense Information.

    Let me provide some additional commentary on this CRS Report.

    As a PhD candidate in the field of public policy and administration and as a student of history (including national security), and having served in the government in both civilian and military capacities, I find that the research and analysis for this CRS report blatantly biased and full of errors in both fact and context.
    I won't address all of the errors and misrepresentations in the Report, but want to highlight some of them.
    First they completely mix up National Defense Information as defined by the Espionage Act statute in Title 18 of the US Criminal Code with classified information. No where in the Espionage Act is classified even mentioned.
    The report references the "relatively hardline policy" taken by the Obama Administration in prosecuting leaks to the press.


    This Administration has charged more Americans under the Espionage Act for allegedly mishandling classified information than all other Administrations in history combined. However, this Report is also acknowledging that it is official policy for the government to engage in these retaliatory witch hunt national security criminal investigations.

    The CRS report also provides speculation regarding the grand jury empanelled for the purpose of bringing possible indictments against civilians related to the Manning case and WikiLeaks. In the footnotes they reference the very charges that were in the original secret indictment on me - namely felonies for espionage, conspiracy (with others) against the government, fraud against the government as well as computer fraud.

    The reports also states on page 3 with respect to the Manning case that the government could indict civilians associated with WikiLeaks under the "any person" clause in the Uniform Code of Military Justice Article 104. This reflects the government spin that anyone who disseminates (leaks) information that they deem classified is subject to criminal prosecution, without citing other statutes that are far less punitive in dealing with allegedly mishandling of classified information that does not meet the definition of espionage.

    Under this scenario, if the government deems that ANY person (including civilians, not just military) disclosing alleged classified (err, protected government information), they become a criminal under national security 'rules.'
    Using this tortured logic, and under military authority the government could charge "any person" for "aiding the enemy" under Article 104 of the UCMJ and that includes the media and the press, as well as journalists and reporters.
    Most perniciously this CRS Report parrots the government meme without question and simply serves as a propaganda mouthpiece for the government spin on my criminal case, while leaving out the truth of the matter. This is an institutional form of censorship and suppression that conveniently plays to the government advantage in regards to the skewed narrative for using the Espionage Act against Americans who are decidedly NOT spies.
    I was not actually charged with leaking or disclosure to the press - even though the indictment paints the sordid tale in the narrative. In addition, ALL 10 felony counts in the indictment against me were dropped, but not until they agreed to do so as a condition I imposed as the criminal defendant for even entering into plea bargain discussions with the government prosecutors.
    I ultimately did plead out to a minor misdemeanor for exceeding authorized use of a computer that had nothing to do with the original 10 felony counts.
    Government's case utterly collapsed under the weight of truth in the court of law before the Judge because none of the charging documents were classified. It is convenient to hide behind the color and cover of national security to assert otherwise, when the author of the CRS Report simply accepts at face value the government's explanation of the motion to dismiss the charges against me without question.
    In my criminal case I was called a traitor and labeled an Enemy of the State. The chief prosecutor even said that what I did endangered the lives of American soldiers.
    Report also does not address my whistleblowing and does not include in the main narrative that I actually disclosed the illegal secret surveillance program to government investigators as well as massive multi-billion dollar fraud, waste and abuse at NSA when a far cheaper, ready to go, superior intelligence system with built in 4th Amendment protections was available and simply dismissed.
    The Report also promotes a convenient government tale that obscures the reality of their war on whistleblowers and truth tellers while sending a real chilling message to journalists and reporters covering the national security beat - we are on to your sources and there is no shield or protection for them.

    In this regard, the government's actions to date against truth tellers and whistleblowers are nothing less than an assault on the 1st Amendment and information sharing in the public interest.

    In off the record conversations with leading reporters and investigative journalists they have made clear to me that the government's criminal investigation into national security 'leaks' and public interest disclosures has more than just chilled and censored speech, but many sources are increasingly unwilling to have any conversations of substance with them for fear the government will find out and make them a target.
    Is this the country we want to keep?

    "Truth is treason in the empire of lies." - George Orwell

    by Thomas Drake on Fri Feb 15, 2013 at 11:18:14 AM PST

    •  There is a companion message. (0+ / 0-)
      ...real chilling message to journalists and reporters covering the national security beat - we are on to your sources and there is no shield or protection for them.
      The other message is parrot the official gov't authority line and you have nothing to worry about. In fact, you can get rich and be on tv. And you will no doubt be exempt from any laws and prosecution regarding secrets, as will your sources.

      (Make no mistake, most of the corporate media has gotten that message loud and clear.)

      They are essentially using prosecutorial discretion as a weapon at all levels.

      The law is a tool to help the powerful punish their perceived enemies and help them profit. This is why whistleblowers are punished, because they can be, by the corrupt who hold power.

      The terrible reality goes beyond Greenwald's excellent two-tiered justice system thesis, in my opinion.

      •  Control of the message (1+ / 0-)
        Recommended by:


        As you state very well the other message is having the press reflect the official publicity organ of the government and we will reward you with access and selectively authorized leaks - including classified and if follow the 'rules' your 'approved' sources are safe with us.

        Whistleblowers and truth tellers are a real threat to the state in this scenario and manipulation of the law, violations of due process, and framing of evidence is simply the means that justifies the ends for pursuing prosecution.

        It is particularly dangerous when whistleblowers and truth tellers are disclosing government criminality and wrongdoing 'protected' by secrecy, subterfuge and institutionalized corruption.

        "Truth is treason in the empire of lies." - George Orwell

        by Thomas Drake on Fri Feb 15, 2013 at 01:37:21 PM PST

        [ Parent ]

  •  I'll post this on FB to get more eyes, this is (2+ / 0-)
    Recommended by:
    David Futurama, allenjo

    just trying to write history the way TPTB want it to be seen and it ranks right up there with the idjits in Texas changing history for the school books.

    without the ants the rainforest dies

    by aliasalias on Fri Feb 15, 2013 at 11:19:26 AM PST

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