The federal judge presiding over the espionage case against a former senior National Security Agency official has rejected the defense’s principal constitutional challenge to the classified document retention charges as well as the prosecution’s bid to keep the jury from considering the newspaper articles that resulted from the defendant’s cooperation with a reporter.
Judge Richard D. Bennett, who heard argument during Thursday’s four-hour hearing in U.S. District Court in Baltimore, did not decide whether the June trial of Thomas A. Drake will feature the “silent witness rule,” an extraordinary way of handling classified documents that relies on code words known to the judge, the parties and the jury, but not the public.
Drake, a tall, balding man wearing frameless glasses and a grey suit, sat quietly beside his public defenders throughout the lively back-and-forth, taking notes with his left hand, as the contours of the highly anticipated trial took form.
The “main event,” according to Bennett, was a defense motion to dismiss the first half of the indictment — the five counts of unauthorized retention of documents related to national defense — on the grounds that the underlying statute is unconstitutionally vague as applied and overly broad under the First Amendment.
The terms of the statute, 18 U.S.C. §793(e), are “so sweeping as to be absurd” and criminalize core political speech, the defense’s brief said.
“The Constitution doesn’t go away when we’re talking about national security,” Maryland Federal Public Defender James Wyda told Bennett on Thursday.
Calling the documents at issue “benign” and Drake’s motives “salutary,” Wyda said his client was exercising his free-speech rights when he leaked information about waste and abuse at the NSA to a person the indictment refers to as “Reporter A.” The reporter has since been identified as Siobhan Gorman, formerly of The Baltimore Sun and now with the Wall Street Journal.
But the judge did not seem sympathetic.
“This is not some higher calling case,” Bennett said.
He repeatedly pressed Wyda on how a person in Drake’s position should report such grievances, hinting that the answer was to bring them to a government inspector general or congressional committee.
“The defendant had fair notice that his conduct was illegal,” Bennett concluded, noting the several nondisclosure agreements Drake signed during his career as an NSA employee and contractor. He also cited the 4th U.S. Circuit Court of Appeals’ decision in a 1988 case, U.S. v. Morison, which upheld the conviction of the first American official successfully prosecuted under espionage laws for giving intelligence information to the media.
The espionage law, among other things, bars anyone with unauthorized possession of a document relating to national defense from retaining it or sharing it with another unauthorized person.
Bennett commented more than once that federal prosecutors have charged Drake with retaining documents, not leaking them — a distinction Wyda called “such a frustrating red herring.”
“The government smartly chose to bring this as a retention case,” Wyda said later, “but that does not take the dissemination element out of it.”
Articles stay in
Wyda suggested one of Drake’s defenses will be that he mistakenly held onto a few documents among the thousands he gathered for an internal audit. Another relates to Wyda’s contention that the Sun series on problems at the Fort Meade-based intelligence agency didn’t contain any of the classified information found in Drake’s Glenwood home.
William M. Welch II, senior litigation counsel at the U.S. Department of Justice, argued the articles were full of hearsay and are not relevant to the case because they reflect what the newspaper’s reporter, editors and lawyers, not Drake, decided to publish.
“If they want to put the articles in [evidence], they need to call the reporter,” Welch said, opening her up to cross-examination.
Bennett, though, predicted the reporter would refuse to testify at the risk of being thrown in jail.
“That’s the last thing we need right now,” he said.
Instead, Bennett said he would allow the jury to see the articles in some redacted form and suggested Welch find an editor from a national newspaper to talk about how articles are vetted. Welch said he would also need to get an NSA expert to testify that the articles do contain classified information.
Welch’s “silent witness” motion was left even more unresolved, with Bennett postponing a decision until he considers the jury’s access to classified information at a special, closed-door hearing on April 25.
While Welch said the rare protocol would allow the jury to see unadulterated versions of the documents at issue, which he claimed would benefit Drake’s defense, Assistant Federal Public Defender Deborah L. Boardman said the practical problems associated with the proposal were “incalculable” and included hamstringing defense cross-examination and undermining Drake’s right to a public trial.