Judge won't release witness names early in NSA leak case

Prosecution's request called 'highly unusual'

November 29, 2010|By Tricia Bishop, The Baltimore Sun

A federal judge refused Monday to release the names of potential defense witnesses in a criminal case against a former NSA employee accused of leaking classified information to a reporter, calling the prosecutors' request "highly unusual."

The U.S. Department of Justice had argued that it needed to know witness identities now, months before the scheduled March trial, to ensure that they could be trusted with sensitive information. But attorneys for defendant Thomas Drake, who worked at the National Security Agency until mid-2008, said the government was overreaching.

Drake, who lives in Glenwood, was indicted under the Espionage Act in April on charges he illegally retained national defense information, obstructed justice and made false statements to agents for the FBI.

The 10-count indictment states that Drake gave classified information to a reporter, but does not charge him with leaking. Court documents do not name the reporter or newspaper involved, but sources have indicated it was a former national security correspondent for The Baltimore Sun.

Drake's defenders say he was trying to expose government waste and possible fraud, and point to his case as an example of hypocrisy within the Obama administration, which campaigned on a platform of transparency in government, yet has brought more leak prosecutions than the three previous administrations combined, including:

•Shortly after Drake was indicted, officials renewed a Bush administration investigation into New York Times reporter James Risen's confidential sources.

•Army Spc. Bradley Manning has been in custody since May for allegedly leaking classified military information to the online organization WikiLeaks.

•That same month, an FBI contract worker — Samuel Shamai Leibowitz of Silver Spring — was sentenced to 20 months in prison for leaking documents to a blogger.

•And in August, State Department contractor Stephen Jin-Woo Kim was indicted on charges of leaking information to a Fox news reporter about North Korea's planned response to U.N sanctions.

With each indictment, Department of Justice representatives condemned the willful disclosure of classified information. In the Drake case, Assistant Attorney General Lanny A. Breuer said "national security demands that the sort of conduct alleged here — violating the government's trust by illegally retaining and disclosing classified information — be prosecuted and prosecuted vigorously."

Jesselyn Radack, a former DOJ adviser and whistleblower who viewed the proceedings Monday, called the series of prosecutions "very disconcerting." She works for the Government Accountability Project, which advocates for whistleblower protections.

Drake's "case in particular is even more disturbing," Radack said, "because the whistleblower went through all the proper channels, chapter, line and verse in terms of complaining internally."

Drake, who declined to comment Monday, worked for the NSA from 2001 through 2008. Early in his tenure, according to supporters, he and others complained about mismanagement of an expensive data collection program to the Department of Defense's inspector general and others within the federal government.

He's accused of later giving similar information to a reporter at a "national newspaper." News organizations and a government source familiar with the investigation identified Siobhan Gorman and The Sun as the reporter and newspaper referred to in the indictment.

Gorman published several articles in The Sun citing multiple sources in 2006 and 2007; she now works for the Wall Street Journal.

Drake has pleaded not guilty to all charges.

tricia.bishop@baltsun.com

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