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Prosecution pares down NSA leak case

At an espionage trial that begins Monday in Baltimore, federal prosecutors will try to secure the conviction of a former National Security Agency executive for willfully retaining classified documents without indicating to jurors that the papers contained top secret information about NSA’s ability to target telecommunications technology.

The prosecution was essentially compelled to withdraw any reference to this information when U.S. District Court Judge Richard D. Bennett ruled on June 3 that Thomas A. Drake’s right to be confronted with the evidence against him barred prosecutors from redacting details in the documents pertaining to that NSA technology. The government, if it wanted to introduce this high-tech, highly sensitive information, would have to do so verbatim, Bennett said.

Rather than publicly disclose the classified information, the prosecutors chose to abandon any reference to the technology in their forthcoming case against Drake. The telecommunications data is just part of the classified information the prosecutors allege Drake willfully retained at his Glenwood home and on his personal computer.

Espionage-law professors were divided this week over the effect the prosecution’s decision will have on its efforts to convince jurors that Drake’s actions posed a threat to national security.

Michael Greenberger said Thursday the prosecution’s case is weakened by its inability to explain to the jury forthrightly that Drake mishandled classified data regarding the United States’ ability to eavesdrop on its enemies.

“I believe that they are forced to present evidence in a way that is likely not to be as compelling” for the jury, said Greenberger, who directs the Center for Health and Homeland Security at the University of Maryland Francis King Carey School of Law. “It will not help their case.”

But professor Stephen I. Vladeck said prosecutors in espionage cases are prepared for judicial rulings, such as Bennett’s, that compel them to withdraw parts of their evidence due to concerns for the defendant’s constitutional rights.

“If they didn’t think they could prosecute Drake with the information they could declassify, they wouldn’t have brought the case in the first place,” said Vladeck, who teaches at American University’s Washington College of Law. “A lot of that calculus had already been made” by the prosecution, he added.

The prosecutors disclosed in a letter to Bennett on June 5 that they would not mention the communications technology at trial.

“The government will not rely on the classified information related to that technology as part of its proof, nor will it indicate to the jury that the documents found in the defendant’s home relate to the NSA’s targeting of that technology,” prosecutors William M. Welch II and John P. Pearson wrote. “In short, no reference to the technology will be made. This will allow continued protection of the details of the NSA’s efforts in this area, while simultaneously protecting the defendant’s constitutional ability to present his defense.”

Welch and Pearson, through a U.S. Department of Justice spokeswoman, declined to comment on the case. Maryland Federal Public Defender James Wyda, who represents Drake, also declined to comment.

Drake, who served as an NSA employee or contractor for 16 years, is charged with five counts of violating 18 U.S.C. §793(e). The federal Espionage Act prohibits anyone in unauthorized possession of a document relating to national defense from retaining it or sharing it with another unauthorized person.

In addition to the crime itself, Drake is charged with trying to cover it up.

The government alleges he obstructed justice by shredding classified and unclassified information to prevent the Federal Bureau of Investigation from discovering he had illegally retained documents at home and on his personal computer. Drake is also charged with four counts of making false statements to FBI agents by telling them he was not in possession of classified documents.

If convicted, Drake faces a maximum penalty of 20 years in prison for obstructing justice, 10 years for retaining classified documents and five years for the false statements. He also faces a maximum fine of $250,000 for each of the 10 counts against him, the Department of Justice said.