Criminal defendants of all stripes in national security cases, including Marine Lt. Col. Oliver North in the Iran-Contra affair and al-Qaida terrorist Zacarias Moussaoui, have long sought to work government secrets into their defense.
The hope is the prosecutors will skip a trial rather than expose sensitive information in court.
This strategy worked perfectly in the just concluded leak case against a former National Security Agency official, Thomas Drake. But civil libertarians doubt the setback for prosecutors will halt the Obama administration's vigorous legal attack on leakers, and the government shows no signs of backing off other cases.
After all, the strategy of threatening to expose secrets at trial to ward off charges has a decidedly mixed history for national security defendants. The practice is known as graymailing the government.
Drake pleaded guilty Friday in federal court in Baltimore to a single misdemeanor charge in a deal with prosecutors that avoided a trial in the case accusing Drake of passing classified material to a Baltimore Sun reporter.
Drake had faced up to 35 years in prison had he gone to trial and been convicted. The lesser charge carries a penalty of up to a year in prison and a $100,000 fine.
Drake's defense was that he was a whistleblower exposing waste in an NSA program called TrailBlazer. That ill-fated effort was to have overhauled the agency's vast computer systems to capture and screen information flooding into the agency from the Internet and cell phones. Begun in 2002, the project eventually cost $1.2 billion, but never worked as intended and was scrapped in 2006.
The NSA, one the government's largest spy agencies, employs an army of linguists, cryptologists and computer experts to snoop on electronic communications across the globe from its headquarters at Fort Meade, Md., south of Baltimore.
The Drake case "is an indication that the government overreached in its original indictment and this case needs to prompt a reassessment to the government's whole approach to leaks," said Steven Aftergood, who monitors government secrecy for the Federation of American Scientists.
But Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, predicted the administration will continue to go after whistleblowers at intelligence agencies "very, very aggressively." Dalglish said the government sees Drake as a disgruntled former contractor.
"It's not likely the administration will back off," said David Sobel, senior counsel at the Washington office of the Electronic Frontier Foundation. "The Drake prosecution will, unfortunately, serve its purpose of creating a real disincentive for government insiders who feel that they should reveal misconduct in their agencies."
Justice Department spokesman Matthew Miller said that there are available avenues for whistleblowers to report wrongdoing, even in classified matters, "and we encourage people to use them. But people cannot make unilateral decisions to publicly release information that jeopardizes national security. When that happens, the government has an obligation to act."
Obama's administration has pursued cases against five government leakers under espionage statutes, more than any of his recent predecessors. James Bamford, the author of two books on the NSA, called the Drake prosecution "a very important case" because it could set a precedent for similar Espionage Act trials to follow.
They include cases against Pfc. Bradley E. Manning, an intelligence analyst accused of passing hundreds of thousands of military and State Department documents to WikiLeaks; former CIA officer Jeffrey Sterling, accused of sharing classified information on intelligence operations against Iran with New York Times reporter James Risen; and a State Department expert on North Korea, Stephen Kim, accused of revealing secrets to Fox News.
An FBI translator, Shamai Leibowitz, was sentenced to 20 months after pleading guilty to leaking classified documents to a blogger who posted the information online.
In Drake's case, court papers show that an important decision leading up to dismissal of the felony charges came June 3 when U.S. District Judge Richard Bennett ruled against prosecutors, who had sought to protect some classified material from disclosure during a trial.
The classified information involved documents found in Drake's home relating to "NSA's targeting of a particular telecommunications technology," according to a June 5 letter to the judge by lead prosecutor William Welch.
The government proposed to protect the classified information by providing summaries for the jury. The judge ruled that the summaries, referred to as "substitutions," would hinder the defense.
The government responded to the ruling by weakening its own case, abandoning all references to the technology.
A drastic step, but hardly unprecedented.
In the Iran-Contra affair, the Reagan White House secretly sold arms to Iran in exchange for the release of American hostages held in the Middle East. Some of the profits from the arms sales were diverted to clandestine military support of rebels seeking to overthrow Nicaragua's leftist government. At the time, Congress had withdrawn support for the rebels.
In the criminal investigation that ensued, independent counsel Lawrence Walsh felt compelled to abandon a conspiracy charge against North, one of the key players in arranging the covert arms sales and payments to the Contra rebels. Walsh acted after a judge agreed with North's lawyers that the defense had a right to present a wide range of government secrets at trial.
In his final report, Walsh wrote that "North was unsuccessful in graymailing the government into dropping additional charges on grounds of classification."
A jury convicted North of three felonies, but an appeals court overturned all three.
In a separate Iran-Contra case, the independent counsel charged Joe Fernandez, a former CIA station chief in Central America, with abetting North's aid to the Contra rebels. But Attorney General Richard Thornburgh blocked disclosure of information identifying CIA stations in Central America, leading a judge to dismiss the case.
But the terrorism case against Moussaoui ended differently.
The only case brought so far in a U.S. court over the Sept. 11 attacks produced a life sentence. As part of his defense, Moussaoui sought access to al-Qaida witnesses. But courts cited national security concerns in ruling that Moussaoui and his lawyers could not conduct interviews.
Instead, U.S. District Judge Leonie Brinkema ordered that defense attorneys and the jury be given government-prepared summaries of the captives' statements. That arrangement drew objections from defense lawyers because the summaries were "from unnamed, unsworn government agents purporting to report unsworn, incomplete nonverbatim accounts" of witness statements. Moussaoui's team argued unsuccessfully that this was a violation of his 6th Amendment right to a fair trial.
Moussaoui ultimately pleaded guilty to engaging in terrorism, though he denied being part of the 2001 attacks. Under federal death penalty rules, a jury was empaneled and heard evidence in order to determine his sentence.
As for Drake, he won't be going to trial Monday. He will be sentenced July 15 on his guilty plea to the misdemeanor of unauthorized use of a government computer, and prosecutors won't object if he is given no jail time.
Federation of American Scientists: http://www.fas.org/blog/secrecy/