Update:
Please go read Jesselyn Radack's diary here: Too Classified to Try Myth in Failed Drake Prosecution
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original diary begins:
The govermnent keeps on keeping on, saying that they dropped the case to prevent revealing important state secrets.
I find it hard to believe that a memo about 'what a great meeting!' contains important state secrets.
In my humble, uneducated, biased opinion, they dropped the case because judge Bennett wouldn't twist the Classified Information Procedures Act and the Silent Witness Rule into some kind of Kafka pretzel to totally strip a defendant of his right to a public trial - a right which goes back, oh, I don't know, a couple of hundred years in the English Common Law tradition.
Why do they like public trials in jolly old England and it's commonwealths? Because they decided somewhere along the line that the Spanish Inquisition, the Feme, the Star Chamber, and so forth, were simply horrible, but also pointless and had nothing to do with justice.
The government wanted, in effect, a secret trial. The judge, though granting them a good deal of secrecy, refused to throw out hundreds of years of jurisprudence.
If the public had seen, in full, a document like "Regular Meetings", the DOJ and NSA would have become laughing stocks. It would have embarassed the prosecution, the DOJ, the Attorney General, and the president of the United States. That is why we have public court rooms - to prevent parties from presenting evidence that is no good.
John P. Messina of the University of Chicago Law school has made a web page about the principle of the public trial: Lawyer as Court Reporter in a Virtual Courtroom: Lessons from 600 Years of English Legal History. He describes an old fellow named Jeremy Bentham who lived back in the 1700s. Messina quotes Bentham's "Rationale of Judicial Evidence" (Chapter X 511-606), describing the effect on a witness at a public trial:
"In many cases, say rather in most . . . the publicity of the examination or deposition operates as a check upon mendacity or incorrectness. . . . [a witness] . . . "Environed, as he sees himself, by a thousand eyes, contradiction, should he hazard a false tale, will seem ready to rise up in opposition to him from a thousand tongues; many a known face, and every unknown one, presents to him a possible source of detection, from whence the truth he is struggling to suppress, may, through some unsuspected channel, burst forth to his confusion.”
The United States followed the tradition of the public trial in the creation of the Sixth Amendment of the Constitution. But it went further than that, creating case law to back up the constitutional principle. Messina quotes the Supreme Court in the Oliver case, from the 1940s, as follows:
"The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, . . . to the excesses of
. . . the English Court of Star Chamber, . . . and to the French monarchy's abuse of the lettre de cachet. . . . All of these institutions obviously symbolized a menace to liberty. In . . . the hands of despotic groups, each of them had become an instrument for the suppression of political and religious heresies in ruthless disregard of the right of an accused to a fair trial. Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power."
That's what was would have happened at the Drake trial. The government would have presented 'substituted' and 'redacted' versions of these documents; like "Collections Sites" and "Regular Meetings", that Drake was charged with 'retaining'. Ashamed of presenting them in public, the government would have had to resort to 'hiding' them at trial. The jury could have seen the documents, but the public would have a confusion of code words and 'substitutions' that would render them unable to follow what the witnesses were actually talking about.
If these documents had been shown, unredacted, to the public, the public would have realized how weak the government's case was. It would have caused an uproar. When the public saw a document with UNCLASSIFIED stamped all over it, and realized the government was trying to claim it was secret national defense information, and send a man to prison for it, they would have been completely outraged. The entire edifice of painting Drake as a leaker would have fallen apart. It would be replaced with the accurate portrait of him as a whistleblower, being persecuted as a "political heretic" (to borrow the Supreme Court's language). Public opinion means still means something, even in dictatorship (ask Mubarak), and especially in a democracy.
Judge T.S. Ellis III, when creating the four part fairness test for the Silent Witness Rule in the AIPAC case, said point blank that it represents 'partially closing' the trial. A closed trial is a secret trial, and a partially closed trial is a partially secret trial. And a partially secret trial is a partially unfair trial. And that is wholly unconstitutional.
That is why the government had to shut down the case. Not to prevent the revelation of government secrets. But because the government couldn't have won the case without cheating. And judge Richard D. Bennett didn't allow them to cheat.
References
[1] Lawyer as Court Reporter in a Virtual Courtroom: Lessons from 600 Years of English Legal History, by John P. Messina
[2] Govt Says It Will Excise All Reference to a Certain Technology, June 5, 2011, from Federation of American Scientists, Thomas Drake - Selected Case Files
[3] Former NSA official pleads guilty, Josh Gerstein, Politico, Jun. 10, 2011
Sign the Petition do Demand Accountability for the Selective Prosecution of Thomas Drake: Please click here to go to change.org