from the attack-on-leakers dept
In one such case, against former NSA employee Thomas Drake (accused of leaking NSA info to the press), the feds are now trying to falsely claim that unclassified documents are classified -- which is actually a key point in the legal fight. Slashdot points us to the latest news in which Drake's lawyers submitted some evidence to the court concerning how the NSA classifies documents. Drake's team is arguing that nothing he had in his home or which was sent to the press was "classified," and that the NSA is falsely claiming unclassified works were classified. So here's the issue: the feds asked to court to seal the exhibits, claiming they were classified:
"As grounds [for sealing the records], the information contained within the exhibits derives from NSA. As the holder of the privilege for this information, NSA has classified the documents as 'FOUO', which means 'For Official Use Only.' This means that the information is not for public dissemination. Until such time as NSA downgrades the information to 'Unclassified,' the exhibits should not be publicly filed,"And, as seems to happen all too often, the judge immediately agreed, sealing the "official use only" filings. Except, here's the thing, contrary to the statement above, "FOUO" documents are, by definition, not classified. As the report linked above points out, under DoD regulation 5200.1-R (pdf) "By definition, information must be unclassified in order to be designated FOUO."
In fact, one "sealed" document, which is still available (pdf) on the Federation of American Scientists web site, quite clearly shows that the document itself is marked unclassified: