FOI Fail of the Week: Unclassified docs kept secret in Drake trial

Classified information is obviously meant to remain secret. But apparently, unclassified documents should stay secret too.

At least, the prosecution in the Thomas Drake whistleblower court case thinks so. And on Thursday, U.S. District Judge Richard Bennett agreed.

Unclassified but “sensitive” information will be withheld from Drake’s trial because, under the National Security Agency Act of 1959, prosecutors can request that classified and unclassified information can be kept secret from the jurors and replaced with other substitutions.

This legal privilege has been used by the government to refuse releasing records under FOIA, but this is the first time it has been used in criminal trials.

Although the court has decided keeping the unclassified information undisclosed in the trial is acceptable and will not affect Drake’s defense, his lawyers argued otherwise in a May 30 response to the prosecution’s request.

The substitutions agreed to by the court will “signal to the jury that the Court and the government believe information in the document was so potentially damaging to national security that it had to be withheld from the public — the very fact they must decide.”

– Morgan Watkins

Morgan Watkins is SPJ’s summer Pulliam/Kilgore Freedom of Information intern and a University of Florida student. Reach her by email ( or connect with her on Twitter (@morganwatkins26).



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