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."
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.