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

As part of a court case aiming to penalize a whistleblower. Their case against him is so thin that exposing all the relevant information would probably cause the case to collapse

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 claiming the Classified Information Procedures Act (CIPA) gives judges the right to censor and withhold material that is "unclassified."

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."

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