Computers seized from a retired National Security Agency analyst’s home in 2007 contained information that is classified at a level beyond “top secret,” officials said in court filings Tuesday.
A prosecutor and a senior NSA official made the claim to a federal court in Baltimore in response to a motion ex-NSA analyst Kirk Wiebe filed in November, demanding that the Federal Bureau of Investigation return items seized from Wiebe’s Westminster, Md. home four-and-a-half years ago.
“Documents [found on hard drives in Wiebe's home] contain information that is currently and properly classified TOP SECRET//SI/REL to USA, FVEY,” the deputy chief of staff for signals intelligence policy and corporate issues in NSA’s Signals Intelligence Directorate wrote in a declaration. The NSA official who signed the declaration (posted here) gave his name solely as “Steven E. T.,” in keeping with an NSA policy of not publicly identifying most of its employees.
“Steven E. T.” did not detail the nature of the ostensibly classified documents, but explained that “SI is an SCI (Sensitive Compartmented Information) compartment used to protect especially sensitive communications intelligence information.” FVEY stands for “five eyes,” a restriction limiting disclosure of information to officials of the U.S. and four key allies who cooperate closely with NSA: Australia, Canada, New Zealand, and the United Kingdom.
According to sources familiar with the case, Wiebe’s home was searched pursuant to a search warrant issued in 2007 as he, several other NSA veterans and a former House Intelligence Committee staffer were investigated in connection with leaks related to the NSA’s warrantless wiretapping program and claims of mismanagement of NSA programs. Wiebe was never charged with a crime. Justice Department officials say the probes are now closed.
A friend and colleague of Wiebe at NSA, Thomas Drake, was indicted in 2010 on 10 felony charges related to alleged mishandling of NSA information. Prosecutors said Drake passed some of the information on alleged NSA mismanagement to the Baltimore Sun, though he was not charged directly with leaking. On the eve of trial last year, prosecutors dropped the felony charges and Drake pled guilty to a misdemeanor offense of accessing a government computer for an unauthorized purpose. Drake was sentenced to one year probation and community service.
Wiebe said Tuesday that he was troubled by the government’s claim that his computers had critical secrets on them.
“I am dismayed to hear the government thinks there is classified information on either or both of my two computers. Frankly, I wouldn’t put classified information on my computers. After 32 plus years in the business, you don’t do that sort of thing, and – again frankly speaking – I could not conceive of a need to ever do so,” Wiebe told POLITICO via e-mail. “I have no idea what documents the government is referring to and I am more than a little surprised to hear the government thinks I have ‘150 pages of NSA information’ on one of the computers.”
“Secondly, the government does not say I put classified information on my computers, just that there is some there, in the government’s opinion,” Wiebe said. He said it’s possible the government concluded that information not considered classified previously or that was never removed from NSA is now classified.
Wiebe said NSA may have now deemed to be classified research he and others put together as part of business proposals drafted after leaving the agency. “Might the government now—years later—claim those concepts are classified? I don’t know, but something doesn’t seem right, if that’s the case,” he said.
An attorney for Wiebe and other self-styled whistleblowers who worked at NSA said she is dubious about the government’s classification claims since prosecutors gave Wiebe immunity in 2010 in connection with his statements.
“It defies credulity that if my clients’ hard disk drives contained not only classified information–but SI, a Sensitive Compartmented Information category used to protect especially sensitive intelligence information, that the Justice Department would have given them immunity letters,” Jesselyn Radack of the Government Accountability Project said.
Prosecutor Thomas Barnard said in a court filing (posted here) that the hard drives cannot be returned to Wiebe now because of the classified information they contain. He also said a 10-page hard-copy document agents found cannot be returned for the same reason. Barnard asked Judge Richard Bennett to appoint a magistrate judge to oversee the process of separating Wiebe’s personal data from the classified information on the disks.
It’s unclear from the court filings whether the computers found in Wiebe’s home were thoroughly analyzed at the time they were seized. The NSA personnel whose declarations were filed with the court on Tuesday seemed to be examining the hard drives for the first time. The NSA experts make no reference to what the FBI concluded about the data back in 2007.