At yesterday's hearing in the government's retaliatory prosecution of Thomas Drake, a federal judge refused to grant what he generously dubbed an "unusual request" from the prosecution to require Mr. Drake's defense team to turn over the names of consulting experts prior to allowing defense experts access to classified information.
If the prosecution had succeeded, it would have given the prosecutors a number of unprecedented and unfair advantages--such as more time to unearth vulnerabilities of the defense experts and prepare their cross-examinations.
The prosecution's utter lack of any valid reason why the prosecuting attorney specifically (as opposed to the government personnel granting the experts' security clearances) needed the defense experts' names confirmed that the attempt to get the names was a blatant - and now failed - attempt to use classification rules to gain improper access and unfair advantage over the defense.
A Federal District Court-level battle over separation of powers played out at yesterday's public hearing regarding the prosecution's overreaching request.
Mr. Drake's attorneys spoke first, emphasizing what the defense team had identified accurately as "a transparent attempt to gain an unfair tactical advantage over the defense," noting that the prosecution's demand for the defense experts’ names to evaluate the experts' "trustworthiness" had no basis in law.
Disgraced Ted Stevens prosecutor William Welch, himself still under criminal investigation, spoke next and maintained his over-the-top request for the defense experts' names, despite that: (1) the defense’s proposed experts will undergo the appropriate classification reviews from the court and sign Memoranda of Understanding regarding classified information prior to viewing any classified information; (2) the Federal Rules of Criminal Procedure do not require the disclosure of the defense experts’ names unless they are called to testify; and (3) the Classified Information Procedures Act (CIPA) does not require the disclosure of the defense experts’ names.
Customarily, and for what presiding Judge Richard Bennett said were "obvious reasons," disclosure of the defense experts’ names is only required by the Federal Rules of Criminal Procedure if the defense chooses to call them as testifying expert witnesses, a requirement the defense has telegraphed it will comply with accordingly. Welch conceded his request departed from usual criminal procedure, but maintained that he needed the defense experts' names because this case involved classified information.
Judge Bennett asked Welch to name a single federal judge who had upheld Welch's position in a classified information case. Welch's response:
I can't do that.
Welch fumbled on, despite being on what Judge Bennett warned was shaky legal ground, yet was unable to give any solid reason why the prosecuting attorney, as opposed to the designated Court Security Officer (who works for Justice Department and performs the background investigations), would need the defense experts' names. Welch suggested he might have access to some uber-database the Court Security Officer did not, an argument he backed away from when challenged.
Welch then stressed the that the defense experts might not be "trustworthy" or might be under some investigation that the Court Security Officer did not know about. Judge Bennett invited Welch to submit names of individuals under investigation to the Court and the Court Security Officer. Hence, as all of Welch's "concerns" could be addressed using the legal process firmly established in the Classified Information Procedures Act, Welch's request became moot.
The fact that the prosecution had no real reason why it supposedly needed the names only makes clearer that the request was exactly what the defense identified: "a transparent attempt to gain an unfair tactical advantage over the defense." It was also indicative of the government's case all along: overreaching and vindictive Classification rules should be used to protect national security, but in Drake's case (where the Justice Department is using secrecy rules to criminally prosecute a whistleblower), it's no surprise Welch attempted to manipulate classification rules to obtain a litigation advantage. Thankfully, yesterday the judicial branch functioned as it should: as a check on Executive power.