In court filings in Baltimore this week, the government says the seized computers "cannot lawfully be returned." NSA's deputy chief of staff for signals intelligence concluded that disclosing the contents of one computer hard drive would "cause exceptionally grave damage to the national security."
Thomas Drake, who was accused of felony espionage but convicted only of a single misdemeanor involving inappropriate computer use. As part of the investigation, the FBI seized computers from several ex-NSA employees; they have not been charged with any crime and are suing to get the computers back.
This is the first response from federal prosecutors answering a civil complaint filed in November in U.S. District Court by four former analysts from Maryland and an ex-congressional staffer. Their homes were searched in 2007.
Assistant U.S. Attorney Thomas H. Barnard wrote in court papers that the analysts have been "unwilling to cooperate" in giving agents time to separate classified from unclassified information from files equivalent to 41,000 pages on two computers belonging to one of the analysts. The FBI seized several computers from each of the five plaintiffs.
But Jesselyn Radack of the nonprofit Government Accountability Project said that "if the unreturned property contained such damning information, the Justice Department would have used it against Drake at trial, since most of the 'evidence' the government tried to introduce against him was deemed to be unclassified and caused their case to crumble."
The government's response, which includes affidavits from top officials at the super-secret spy agency at Fort Meade, is limited to one former analyst, John K. Wiebe of Westminster. He is the lead plaintiff in the case; the five filed as a group, but the government appears to be answering each separately.
The filings by prosecutors do not detail the classified information. But the people who sued the NSA have said their computers shared a 10-page document — dubbed by the government the "Collaborative Paper" — they compiled after they left government service. The document was to be a blueprint for a planned private consulting business to help companies mine information from large databases.
FBI Special Agent Laura J. Pino, in one court document filed this week, identifies a 10-page document as one of the three items that prosecutors say cannot be returned to Wiebe. The other two are computers — a Dell Dimension and one built by Wiebe.
Drake was among a group of NSA analysts who had filed internal complaints with the Pentagon's inspector general alleging the agency misspent money and ignored technological advances to help target terrorist groups such as al-Qaida.
Complaining of retaliation for filing the complaints, Drake helped expose internal NSA mismanagement to a Baltimore Sun reporter, identified in court documents as Siobhan Gorman, who went on to work for The Wall Street Journal. She wrote a series of award-winning articles for The Sun in 2006 and 2007.
After charging Drake with felony espionage, prosecutors backed down on the most serious counts. A federal judge criticized prosecutors for dragging Drake through "four years of hell."
Drake has maintained that he never passed on classified intelligence to the newspaper, but limited the information to internal management issues. The count on which he was convicted, and sentenced to 240 hours community service, does not allege he divulged secret intelligence.
As part of the Drake investigation, the FBI searched his home and the homes of the other ex-analysts and a former congressional staffer for the House Permanent Select Committee on Intelligence, seizing computers and other items.
All five people are seeking the return of the items seized. They are representing themselves in the civil suit, but have been backed by the Washington-based Government Accountability Project, which helps protect government whistle-blowers. Drake was represented by a public defender at his criminal trial.
On Thursday, the accountability project's Radack said it appears the NSA classified the documents after they were already copyrighted. She called it "classification theater" and said that after the failed Drake prosecution "you'd think … the Justice Department and NSA would have learned their lessons."
Radack said prosecutors did not use the so-called "Collaborative Paper" in their case against Drake. She also said that she thinks other documents deemed classified included diagrams and PowerPoint slides of the prospective business.
"In essence, the government now wants to declare ownership over the whistle-blowers' intellectual property," Radack said. "Unfortunately for NSA, they are too late. It has been copyrighted since 2005. Yet again, NSA wants to classify information it had nothing to do with, and do so retroactively."
In an interview on Thursday, Wiebe said one computer might contain notes on a new way of managing that he was pushing while at the NSA.
"It was techy-talk, a disciplined process moving from point A to point B," Wiebe said. "A lot of people didn't pay attention to it. … It was a way to get better engineering practices."
He said the government might be trying to classify the information, not because it's top secret, but to keep him and his group from using it for future endeavors. He said he is encouraged that the federal judge in the civil case, Richard D. Bennett, is the one who presided over Drake's criminal trial and called the government's actions "unconscionable."
In court papers, the government says that, at least in Wiebe's case, the 10-page document and computers contain information that is classified.
The material was reviewed by a man identified in court documents only as Steven E.T., the deputy chief of staff for the Signals Intelligence Directorate at NSA, which intercepts communications from across the world. The computers and hard drives were scanned by Tony T., identified as a computer forensic examiner at the NSA.
According to the court documents, Steven E.T. said that divulging the contents of Wiebe's computer would harm "the NSA's foreign intelligence electronic information collection network," which, he adds, "has taken years to develop at a cost of billions of dollars and untold human effort."
"In order to allow NSA to successfully perform its SIGINT [signal intelligence] mission, its activities must be done in secrecy," he wrote. The official wrote in his affidavit that an additional 150 pages of information remains under review.
Wiebe, Drake and others argued in November that in addition to the 10-page document, their computer hard drives contained personal information, such as address books, family recipes, tax returns, graduate school papers and family photos.
Tony T., the forensic examiner, said in court papers that it is impossible to fully erase the classified information from the computer hard drives.
The only solution, prosecutors said, is to copy unclassified information onto another device and give that back to the people involved in the lawsuit.
Barnard, the assistant U.S. attorney handling the case, said in his court filing that "given the volume of the hard disk drives, and the time it will take to perform a complete review to separate classified from unclassified information, a time-consuming process is expected." He wrote, "Petitioner has been unwilling to cooperate … in this process."
In his court filings, Barnard included email exchanges he had with Wiebe, offering at one point to let a federal magistrate supervise the review and "help you get back everything that is lawfully yours."
Wiebe has made it clear he wants all his seized computers and hard drives returned. He responded to the email saying he preferred take the issue to court. He notes in his email that he was never charged with a crime.
"In my eyes, the government's actions in this regard have been, and continue to be, unlawful," he wrote. "The government has my property and denied me the use of it. So, for me, there is nothing to negotiate. A wrong has been done. Now it is time to find justice under the law."