A criminal charge filed against former NSA employee Thomas Drake, claiming that he kept a particular classified document, will stand even though the text was stamped "unclassified," a federal court judge ruled late Monday.
Drake's lawyers, both federal public defenders, argued last week that the charge should be dismissed because the document, a meeting schedule posted on the agency's private intranet, was widely distributed and clearly marked as not-confidential. But in a three-page opinion, U.S. District Court Judge Richard D. Bennett disagreed, calling the request "premature."
The decision was the latest blow to Drake's defense team, which has repeatedly tried — and failed — to win dismissals for any of the 10 counts filed against the Glenwood resident, who worked at the National Security Agency for 17 years as both a contractor and employee.
Drake was indicted a year ago under the Espionage Act on five charges of retaining classified information to give to a Baltimore Sun reporter, one charge of obstructing justice and four charges of making a false statement to the FBI. He's scheduled for trial in June.
The Obama administration has labeled him a threat to national defense. Others hail him as a hero for speaking out about supposedly wasteful government programs, first to government investigators and then to former Sun journalist Siobhan Gorman, who now works for the Wall Street Journal.
Gorman wrote a series of articles in 2006 and 2007, published in The Sun, that revealed flaws in expensive anti-terrorism technology programs embraced by the NSA.
"Thomas Drake blew the whistle through the proper channels and exposed massive waste, fraud and abuse as well as illegal and unconstitutional behavior at the hands of NSA management post-9/11," reads a statement issued last week by the Fertel Foundation and The Nation Institute.
The groups administer the Ridenhour Prizes, which they describe as recognizing "individuals who have courageously taken a public stand against injustice, corruption or incompetence." Drake is among four 2011 recipients of the $10,000 cash prizes, which will be awarded at the National Press Club in Washington April 13.
During a hearing last week in Baltimore, Drake's lawyers said he admits giving Gorman two documents, including the meeting schedule, but he believed they were unclassified.
The two-page schedule was marked "unclassified/for official use only" on the header and footer of both pages, said Assistant Federal Public Defender Deborah L. Boardman. But prosecutor William M. Welch II said the document was mislabeled and Drake knew it.
In his written opinion, Bennett said the government will get a chance to prove it.
"Though Defendant's challenge may appropriately be made at the close of the government's case-in-chief … it is premature at this stage of the proceedings," Bennett wrote.