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Prosecution request denied in NSA leaks case

Lawyers for a former National Security Agency employee accused of mishandling classified information won’t have to share the names of their expert consultants with the government, a judge ruled Monday.

Thomas A. Drake was charged after an investigation into leaks of classified information to a newspaper. His supporters claim he’s being punished for blowing the whistle on inefficiencies and mismanagement at the NSA.

Justice Department attorneys argued in a motion that Drake’s attorneys had to disclose the names of their expert consultants months before trial. They said that was a necessary step if the experts were to be granted access to classified information and that only the government could determine the trustworthiness of potential experts.

U.S. District Judge Richard D. Bennett called the request “unusual” and asked prosecutor William M. Welch II to cite a case or a ruling that would support the government’s position. Welch said there were no such cases.

“You’re on weak ground here,” Bennett said to Welch.

Ultimately, Bennett declared the motion moot after assuring the government that the court security officer — a Justice Department employee who reports to the court — would perform the necessary background checks on defense experts. Welch said he was satisfied with that resolution.

Drake’s attorney, federal public defender Jim Wyda, said the government’s request “seems like overreaching” and that the defense was merely seeking a “level playing field.”

Drake’s case is unusual because he’s charged with violating espionage laws without being accused of spying. While the indictment describes his clandestine communication with a reporter, prosecutors do not allege that the leak itself was a crime.

Instead, he’s charged with willful retention of classified information — holding onto classified material that he should have given back. He’s also accused of shredding documents, deleting files from his computer and lying to investigators.

The newspaper articles described in the indictment generally match a series of stories published in The Baltimore Sun in 2006 and 2007 about management, technical and budget problems at the intelligence agency.

Whistleblower advocates have followed the case closely and said the government’s attempt to learn the names of defense experts was a symptom of an overzealous prosecution.

“It gives me great concern that the government is going to the mat at this early juncture over such a basic procedural issue,” said Jesselyn Radack, homeland security director for the Government Accountability Project. “I think it’s indicative of this case in general.”

Welch declined to comment after the hearing.