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Unprecedented: Obama admin. claims right to censor ‘unclassified’ materials

In the case of former National Security Agency (NSA) executive Thomas A. Drake — indicted last April and accused of funneling documents to an unnamed reporter at an unnamed newspaper, for stories that have not been identified — the president’s lawyers have made a unique and potentially unprecedented claim.

With less than a month before Drake’s trial begins, the Obama administration has filed a memo with the court claim the classified Information Procedures Act (CIPA) gives courts the right to censor and withhold material that is “unclassified.”

“It is simply incorrect to argue that CIPA is a rigid set of procedures that precludes this Court from simultaneously considering the admissibility of classified information as well as other information, whether protected or unclassified,” they wrote (PDF).

The argument effectively hinges on earlier court cases which interpreted CIPA as less of a rulebook for judges and more of an advisory. The president’s lawyers took that a bit further, suggesting it actually just “provides the tools” needed for the judiciary to decide what information should be protected from the prying eyes of defense attorneys. They also claim the National Security Agency Act of 1959 (NSAA) allows courts to redact any and all information pertaining to the NSA’s activities.

In a document filed the following day (PDF), Drake’s representation reacted with horror.

“There is no authority for this unprecedented assertion in the context of a criminal case,” they wrote.

“The National Security Agency Act of 1959 is a civil statute that does not address criminal prosecutions or the rights of a criminal defendant. The applicable statute is the Classified Information Procedures Act (CIPA). CIPA is the only statute that confers upon courts the authority to admit substitutions for relevant evidence in criminal cases. CIPA authorizes substitutions only for ‘classified information,’ not unclassified information.”

Indeed, the CIPA makes no mention of “unclassified” materials being protected, nor does the word “unclassified” even appear in its text. Similarly, the NSAA exemption cited by prosecutors is typically used to shut down requests filed under the Freedom of Information Act seeking access to secret information — not to permit a court to withhold unclassified materials.

“Even if it were permitted to be invoked in this case, it requires a detailed affidavit to support its use in each instance and no such affidavits have been produced,” Steven Aftergood, of the FAS Project on Government Secrecy, wrote on Thursday afternoon.

Drake’s trial is expected to begin next month. It remains unclear where the court will land on the Obama administration’s latest claims.

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