A federal judge said Thursday that he would allow Baltimore Sun articles about program and management problems at the National Security Agency to be admitted as evidence in the June trial of Thomas Drake, a former NSA employee accused of retaining classified documents to give to a reporter.
But the judge stopped short of allowing the reporter, identified in court papers as former Sun journalist Siobhan Gorman, to be called to the witness stand. District Judge Richard D. Bennett said that path could end in a "deep, dark hole," and that he's not inclined to jail reporters for refusing to reveal sources.
Bennett's statements came in a four-hour hearing to determine how the two-week jury trial will proceed.
Drake, who worked as a contractor at the NSA from 1991 to 2001 and later as an agency employee until mid-2008, was indicted last April under the Espionage Act. Drake has pleaded not guilty to the 10 felony counts of illegally retaining national defense information, obstructing justice and lying to the FBI.
Drake is not charged with leaking the information, though the accusation is central to the government's case against him. As Bennett noted, sections of the indictment detail Drake's alleged interactions with Gorman, identified as "Reporter A."
The indictment alleges that they exchanged hundreds of email messages through encrypted accounts and met a half-dozen times at Washington-area locations.
Gorman wrote a series of articles published in The Sun in 2006 and 2007 that revealed flaws in expensive anti-terrorism technology programs embraced by the NSA.
"We can't get away from the fact that this is more than a simple possession case. The government is making Tom's contact with the reporter an issue," said Maryland Federal Public Defender James Wyda, who represents Drake.
Defense attorneys want to introduce the articles to show that the classified information found in Drake's custody was not included, indicating that he never leaked it to Gorman. Prosecutors say that would prove nothing, however, because journalists select the content they use and she could simply have omitted the details.
"He brought the documents home because he was asked to do research by the reporter. … What ultimately happens with that information is simply not relevant," said William M. Welch II, a Justice Department lawyer.
Bennett told Welch he was free to argue that before the jury but that the articles could be used as evidence at the trial.
Drake has acknowledged showing two documents to Gorman that he believed were not classified, said Wyda, who described the documents as a meeting schedule and an email about an NSA success. Three other, allegedly classified documents found in his possession were there because Drake was a witness in a whistle-blower investigation by the Defense Department's inspector general, Wyda said.
"I'm not conceding [Drake] did anything wrong," Wyda said, adding that his client "went to the reporter because" some of Drake's other whistle-blower efforts had failed to get results.
"Nothing changed," Wyda said, so Drake "took the risk to give [information] to a reporter in violation of NSA regulations."
The judge rejected a defense request challenging the Espionage Act and parts of the Classified Information Procedures Act, which sets protocols for dealing with sensitive information, as unconstitutional. Bennett said he will present written opinions discussing his rulings on both motions.
The judge said he will wait to decide whether classified information can be introduced during the trial through the rarely used "silent witness rule," which allows lawyers to use code words in the courtroom when talking about secret material. Only the jury, judge, witnesses and lawyers would have access to the information, while the public would be kept in the dark.
"It's unwieldy, it's unworkable and it's unnatural," said Assistant Federal Public Defender Deborah L. Boardman, who opposes the request. "What they propose is tantamount to closure of the courtroom."
But Welch said the procedure would allow the documents in question to be shown to the jury. If the silent witness rule is not employed, the government would have to use unclassified substitutes.
A private hearing is scheduled before Bennett on April 25 to discuss the secret material.