Post Puff Piece on Maryland Prosecutor Raises Question

Rod J. RosensteinThe Washington Post published Oct. 10 a highly flattering profile of Maryland's U.S. attorney without mentioning two newsworthy national security cases -- one of which resulted in vast embarrassment for the Justice Department last summer. The Post published its page-one Metro-section profile of U.S. Attorney Rod J. Rosenstein, left, headlined, A Poster Child for the…Fair-minded. Reporter Ruben Castaneda's story lived up to that hype by such flattering insights as, "Even courtroom adversaries talk about the career prosecutor as if he were the real-life version of a Jimmy Stewart character." The reporter puts a positive spin on Rosenstein's work with Independent Prosecutor Kenneth Starr's failed investigation of Thomas Drake the Clintons for Whitewater, and even finds time to report on the two kinds of coffee mugs that prosecutor uses. As a finale, he quotes one of prosecutor's daughters, age 11, and touts her acumen as boding for her future success as a lawyer in the tradition of her father.

That's heartwarming, except to those who might wonder whether the government doesn't have enough spin-artists already on payroll. The newspaper profile contains not a hint of criticism from anyone. Nor does it even mention the two national security cases. In one case, the Baltimore prosecution of former National Security Agency (NSA) executive Thomas Drake collapsed in shambles earlier this summer as federal prosecutors were forced to drop the most serious charges. CBS 60 Minutes and the New Yorker helped expose to national audiences this travesty of justice. Our Justice Integrity Project was among other groups providing coverage of the case and of the Government Accountability Project (GAP), the lead watchdog group helping Drake. The defendant's ordeal began when he tried to expose to the Baltimore Sun millions of dollars in wasteful if not corrupt government spending. But prosecutors threatened him with charges that could have forced him to spend the rest of his life in prison as a spy. He fought them, and ultimately won a plea deal to a trivial misdemeanor of having unauthorized material on his computer. He is shown at right in a Wikipedia photo, courtesy of Steven DePaulo.

Ted StevensMore specifically, Drake, 53 when indicted in 2010, faced 10 felony counts of mishandling secret information and trying to obstruct the government's leak investigation. Authorities dropped the most serious charges against Drake in 2011 following a campaign by GAP and other whistleblower groups to underscore the injustice. True, the lead role in that case was former DOJ Public Integrity Section Chief William Welch, II and his Washington-based colleagues. But the Washington Post profile gives not a hint of the case, controversy or how Rosenstein addressed the inevitable division of labor in such a controversial prosecution in his balliwick. Earlier, Welch won the 2008 conviction of then-U.S. Senator Ted Stevens, right, on corruption charges. Our non-partisan Project has reported that the Stevens prosecution had the signs of a political prosecution. The conviction ended the Alaska Republican's career before the trial judge forced the Justice Department to vacate the convictions because of prosecution misconduct by Welch and his team. A special DOJ investigator cleaned them of criminal liability in November, 2010.

Another strange omission from the Post's profile of Rosenstein is his prosecution of former NSA analyst Kenneth W. Ford, Jr., who was sentenced to six years in prison in 2006 after convictions for possessing a classified document and obstructing justice by telling an employer in 2004 that he was innocent of the federal charge. The FBI provides this case summary: Now on probation, Ford was released early from prison in August for good behavior. On Oct. 5, 2011, Ford delivered a lecture at the National Press Club to the McClendon Group speaker society alleging that he was framed by federal prosecutors in retaliation for authoring an NSA memo that argued Iraq had no weapons of mass destruction (WMD). Ford, a Secret Service agent serving at the White House before his NSA work, said his understanding is that his memo reached the office of Vice President Dick Cheney.

Kenneth Ford, Jr.Ford maintains that he never took any classified documents from NSA and was set up by officials who planted such documents at his home when more than 20 of them raided his home in January 2004. He was convicted after a brief trial in 2005. The most serious charge was spying, violating the rarely used 1917 Espionage Act. Among a number of unusual features of the trial is that no foreign country was ever named as a potential recipient. Also, the trial judge made a number of pro-prosecution rulings restricting the defense, such as forbidding the defendant from seeing evidence or introducing the full criminal record of a government informant who dated him. The Ford prosecution received scant news coverage despite its historic and controversial nature. Among the exceptions were stories in the Washington Post (including trial coverage by Castaneda) and by investigative reporter Wayne Madsen, who a former NSA analyst who alleged in his coverage that federal prosecutors were framing Ford. Our Project has researched the case and in 2009 profiled the defendant on our website as a suspected victim of prosecution misconduct.

Also, this editor attended Ford's presentation Oct. 5 before the McClendon Group, which for the past quarter century has provided a forum for potential newsmakers who have difficulty obtaining a hearing from the mainstream press. Previous speakers have included U.S. Rep. Ron Paul (R-TX), James Clapper, Jr., the retired Air Force lieutenant general and future director of national intelligence in the Obama administration, and former U.S. Ambassador Joe Wilson. Wilson alleged at the McLendon Group meeting that Cheney operatives intentionally outed his wife, Valerie Plame, asDick Cheney a covert CIA agent in reprisal for Wilson's report debunking fears that Iraq was trafficking in WMD materials. John E. Hurley, the McClendon Group's longtime chairman, told the group last week after Ford's presentation that it appeared Ford was a victim of a frame-up intended, like the outing of Plame at the risk of her life, to send a message throughout the intelligence services that they risk their careers, freedom or even lives by contradicting conclusions sought by the top officials in war planning.

To be sure, Ford faces obstacles. He cannot prove a link to any command by Cheney. In fact, even one exists it would have been at the highest levels of secrecy and not likely subject to any investigation by a criminal defendant. At trial, Ford, a former GS-9, was unable even to see the government's evidence of classified documents and thereby introduce effective rebuttals. By contrast, courts ruled in the Drake case that a defendant is entitled to see such documents. Ford, who holds a master's degree in information technology and once held one of the nation's highe-rlevel security clearances, now works as a carpet installer and hopes to find a pro bono lawyer to explore options. Additionally, Rosenstein did not take office as U.S. attorney in Maryland until July 2005, which was after Ford's arrest. Further, Washington's DOJ headquarters plays a strong role in coordination with the U.S. attorney in any national security matter. DOJ jointly credited for the prosecution Rosenstein and the Bush DOJ Criminal Division Assistant Attorney General Alice Fisher.     

Even so, I am appalled that the major newspaper of the mid-Atlantic region fails to mention any criticism of a profile subject, including when materials are so readily available as in the Drake and Ford cases. I covered the U.S. Justice Department full-time from 1976 to 1981 as a reporter at the Hartford Courant, New England's second-largest paper. Some of my work undoubtedly would be considered puffery in retrospect. Most obvious might be items reporting on an innocous official's retirement, or the standard anouncement of an indictment -- which is inevitably pro-prosecution because virtually every defendant and defense attorney responds with "No comment" at that stage of a case. There's probably more unwarranted puffery than that in my hundreds of articles about federal court cases.

Nonetheless, today's Post story about Rosenstein, whatever his impressive qualities, is an embarrassment to the profession and a reminder of how far it's fallen from its historic watchdog role.

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Below are articles relevant to the column above. See the full article by clicking the link.


Drake Case

OpEd News, Punishment for NSA & DOJ Overclassification in Drake Case, Jesselyn Radack, Aug. 2, 2011. Today's New York Times reports that former classification czar J. William Leonard filed a formal complaint with his former office -- the Information Security Oversight Office (ISOO) - requesting punishment for the National Security Agency (NSA) and Justice Department officials who improperly classified documents in the Espionage Act case against NSA whistleblower Thomas Drake. Leonard articulates the significance of his complaint in the Times: “If you’re talking about throwing someone in jail for years, there absolutely has to be responsibility for decisions about what gets classified.”

Daily Kos, Drake's First Op-Ed Since Sentencing, When The Judge Slammed The Justice Department, Jesselyn Radack, Aug. 1, 2011. The Espionage Act was meant to help the government go after spies, not whistle-blowers. Using it to silence public servants who reveal government malfeasance is chilling at best and tyrannical at worst.  This administration's attack on national-security whistle-blowers expands Bush's secrecy regime and cripples the free press by silencing its most important sources. It's a recipe for the slow poisoning of a democracy.

Washingtonian, William Welch: Obama Administration’s Point Man to Stop Leaks, Shane Harris, July 20, 2011. The prosecutor has been called a tenacious and tough-as-nails lawyer, but also overzealous. On June 10, one of the biggest cases in the Obama administration’s campaign to stanch leaks of sensitive government information to the press collapsed when the Justice Department dropped espionage charges against Thomas Drake, a former senior official at the National Security Agency. But just three days before the trial was scheduled to begin, the lead federal prosecutor, William M. Welch II, told the judge that he couldn’t proceed without revealing details in court about classified systems that NSA uses to eavesdrop on global communications. Welch is now the administration’s point man in its historic anti-leaks campaign. He is prosecuting a former CIA officer, Jeffrey Sterling, and he has subpoenaed James Risen, a Pulitzer Prize–winning New York Times reporter, to testify about whether Sterling was the source for the journalist’s book State of War, which revealed that the CIA may have botched classified operations against Iran.

Washington Post, Judge: Government’s treatment of alleged leaker Thomas Drake was ‘unconscionable’, Ellen Nakashima, July 29, 2011. A federal judge ripped into U.S. prosecutors’ treatment of a former spy agency official accused of leaking classified material, calling delays in the now-closed case “unconscionable” and comparing it to British tyranny in the colonial era. In 2007, FBI agents raided the house of Thomas Drake, then an official at the National Security Agency, but it took another two and a half years for officials to indict him.Salon / Unclaimed Territory, Obama's whistleblower war suffers two defeats, Glenn Greenwald, June 30, 2011. The Obama administration's unprecedented war on whistleblowers suffered two serious and well-deserved defeats. The first occurred in the prosecution of NSA whistleblower Thomas Drake, who was accused of multiple acts of espionage, only for the DOJ to drop virtually all of the charges right before the trial was to begin and enter into a plea agreement for one minor misdemeanor. Today, The Washington Post -- under the headline "Judge blasts prosecution of alleged NSA leaker" -- reports that the federal judge presiding over the case "harshly criticized U.S. prosecutors’ treatment of a former spy agency official accused of leaking classified material."


Selected Ford Case News and Opinion (Reverse Chronological Order) from Wayne Madsen Report (Subscription required) and Washington Post


Wayne MadsenWayne Madsen Report, Wrongfully Convicted Ex-NSA Iraq Analyst Ken Ford Support Campaign, Wayne Madsen, right, April 24, 2008. Following is a letter from the parents of wrongfully-convicted former NSA intern-analyst Kenneth Ford, the author of a signals intelligence report that questioned Iraqi nuclear WMD components, which ultimately brought down the wrath of the neo-con apparatus in the Bush administration.


Washington Post, Edited Transcripts Authorized, Ruben Castaneda, May 3, 2007. The attorney for a former National Security Agency employee convicted of unlawfully possessing classified material will be given redacted versions of court transcripts he has been seeking for more than seven months, a federal prosecutor said yesterday in U.S. District Court in Greenbelt. During a hearing before U.S. District Judge Peter J. Messitte, Assistant U.S. Attorney David I. Salem said the attorney for former NSA worker Kenneth W. Ford Jr. could have redacted copies of the transcripts within two weeks, after the CIA completes its review for classified material.


Wayne Madsen Report, Former National Security Agency (NSA) signals intelligence analyst ordered to prison, Wayne Madsen, April 23, 2006. Former National Security Agency (NSA) signals intelligence analyst Kenneth Ford Jr., whose May 2003 analysis of Iraqi communications concluded that the presence of weapons of mass destruction in Iraq was not proven and was subsequently set up by the NSA, the FBI, and Justice Department in a crafty operation that saw a classified document placed within his home by an FBI contractor, has been ordered to report to the high security Federal Prison in Lewisburg Federal Penitentiary in Pennsylvania on May 15. Ford's six-year incarceration marks another Bush regime milestone. Ford will be the first political prisoner of the Bush regime jailed for purely retaliatory reasons over the phony reasons for the Iraq war.

Wayne Madsen Report, Ford Sentenced, Wayne Madsen, March 31, 2006.  In yesterday's sentencing hearing for former NSA analyst Ken Ford, Federal Judge Peter Messitte mentioned the defense's contention that the classified NSA documents Ford was accused of removing from NSA had been planted in Ford's home. Messitte also stated, "no one knows how he [Ford] ended up with these documents." Messitte also referred to Florida resident Tonya Tucker [one of many aliases], the government's confidential informant who initiated the sting against Ford, as a "curious figure." Yet, even with such doubts about the case against Ford, Messitte sentenced Ford to six years in prison.  In fact, the prosecution engaged in gross and illegal misconduct for the duration of the trial and pre-trial. The prosecutor, Assistant US Attorney David Salem, relied on false affidavits, perjured testimony, and a tainted jury -- complete with a government jury plant who did not identify himself as a former employee of NSA contractor Northrop Grumman -- and coached witnesses to get his conviction against Ford, the only U.S. intelligence employee who has been jailed as a result of his expressed doubts about Iraqi weapons of mass destruction. Ford prepared a May 2003 NSA signals intelligence report, based on intercepts of Iraqi communications and interviews with NSA counter-proliferation specialists, that disproved the Bush administration's theory about Iraqi WMDs. That report eventually ended up in Vice President Dick Cheney's office. The same type of retaliatory "work up" used on Ambassador Joe Wilson and his covert CIA wife was launched against Ford. However, as a young GS-9 and African American, Ford was much more vulnerable to being set up in a criminal sting than the more savvy and experienced members of the U.S. Intelligence Community.

Kenneth W. Ford, Jr.Wayne Madsen Report, Former NSA Analyst Kenneth Ford Was Accepted Into A Fast-track Internship Program At NSA, Wayne Madsen, Feb. 4-6, 2006. Former NSA analyst Kenneth Ford was accepted into a fast track internship program at NSA in November 2002. A former White House Secret Service officer, Ford, a young African-American with three college degrees, was what NSA wanted as a future senior executive at America's signals intelligence agency. That was until Ford's first internship assignment brought him face-to-face with what the Bush administration was cooking up for Iraq.

Wayne Madsen Report, Ford Convicted in NSA Case, Wayne Madsen, Dec. 15, 2006. Former NSA analyst Kenneth W. Ford, who worked in the National Security Agency's Iraq shop in the Signals Intelligence Division between November 2002 and May 2003 was found guilty of possessing classified material at his home and failing to tell the truth on a security form for a post-NSA civilian contractor job. As the verdict was read and Ford became emotionally distraught, four of the female jurors and the court clerk openly wept. The jury of 12 members and four alternates, made up of nine white females, three African-American females, three African-American males, and one white male, deliberated only four hours before reaching a guilty verdict. Ford's name appeared as the author of an NSA intelligence report on intercepts of Iraqi communications that concluded, contrary to Bush administration claims, that there was no evidence to support the presence of weapons of mass destruction in Iraq. Shortly after Ford left NSA for a job in the private sector in January 2004 he was confronted with a jaded FBI confidential informant planting two boxes of classified training material and other documents in his Waldorf, Maryland home. Evidence in the case clearly showed that the boxes had never left the custody of NSA. However, relying on perjured testimony by NSA Security personnel and FBI agents, US Assistant Attorney for Maryland David I. Salem contended that Ford drove his pickup truck in broad daylight to a highly-secured building at Fort Meade, Maryland and casually loaded two boxes in the back from an unguarded loading dock and drove off unchallenged. Furthermore, the government contended that a security camera located at the loading area was inoperative on the day the event supposedly occurred.


Washington Post, Ex-NSA Worker Guilty of Taking Documents, Erich Rich, Dec. 16, 2005. A former National Security Agency employee who packed cardboard boxes with sensitive documents and stored them at his Waldorf home was convicted yesterday on charges of unlawfully possessing classified information and making a false statement to a U.S. government agency. Kenneth W. Ford Jr., 34, was arrested in January 2004 after FBI agents, tipped off by a former girlfriend, found materials containing classified information throughout his house, including in his kitchen and a bedroom closet. Ford worked as a computer specialist at the agency from June 2001 to late 2003. "When government employees are trusted with access to classified documents, they are obligated to protect that information and preserve our national security," Maryland U.S. Attorney Rod J. Rosenstein said in a statement.

Wayne Madsen Report, Prosecution and defense closing arguments in the Kenneth W. Ford case, Wayne Madsen, Dec. 14, 2005. The defense and prosecutors presented their closing arguments today to the jury at the US Court House in Greenbelt, Maryland, in the case of former NSA analyst Kenneth W. Ford. The government charged Ford with possessing two boxes of classified material at his Waldorf, Maryland home in January 2004 after a tip was phoned in to NSA Security by a dubious FBI informant with a long criminal record named Tonya Tucker, aka Tonya Stewart, Kayla Walker and 17 other aliases.

Washington Post, Md. Man on Trial Over NSA Documents, Ruben Castaneda, Nov. 30, 2005. A former employee of the National Security Agency packed cardboard boxes with secret national security documents and unlawfully took them to his Waldorf home, where he kept them in his kitchen and in a safe in a bedroom closet, a federal prosecutor said in U.S. District Court in Greenbelt yesterday.


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