SPECIAL REPORT. The hidden hands behind the Thomas Drake indictment
There is much more to the Obama administration's indictment on April 15 of former NSA senior executive Thomas Drake by the US Attorney for Maryland, Rod Rosenstein, a Bush holdover who has brought similar politically-motivated criminal charges against other NSA personnel. Drake is charged with ten criminal counts, including leaking classified information to a newspaper. WMR can confirm the paper is The Wall Street Journal and the reporter at the Journal who received Drake's information is Siobhan Gorman, who was also subject to electronic surveillance by the NSA and FBI while she was with the Journal and previously, The Baltimore Sun. Other charges brought against Drake, who continued to work for the NSA as a contractor after stepping down as an NSA executive, include obstruction of justice and making false statements to a federal law enforcement official.
Since leaving his executive position with the NSA, Drake has served as President and Chief Operating Officer of National Technologies Associates, Inc. of Alexandria, Virginia. The firm has revenues of $50 million and employs 600 people. Before NSA, Drake was an information technology and management consultant with Coastal Research & Technology, Inc. (CRTI).
While at NSA, Drake worked in the Signals Intelligence Division (SID), the group responsible for eavesdropping on foreign communications and, since the advent of warrantless domestic surveillance, domestic U.S. communications, as well.
WMR can report that as part of the Drake investigation, Gorman and the Wall Street Journal were subject to STELLAR WIND, warrantless wiretapping, as late as last year. The surveillance began when Gorman wrote a series of articles between 2006 and 2007 on NSA contracting cost overruns and mismanagement, information that was first reported by WMR in 2005.
From WMR, May 27, 2005: Up to now, little has been reported on how the Bush administration’s disastrous intelligence policies have affected the super secret National Security Agency (NSA). According to NSA insiders, the chief U.S. signals intelligence (SIGINT) collection agency has been wracked by much of the same internal feuding, senior management failures, and external political pressure that have plagued other U.S. intelligence agencies, including the CIA, FBI, Defense Intelligence Agency, National Geo-spatial Intelligence Agency, and National Reconnaissance Office. Drake's prosecution by the Obama administration represents a continuation of a "witch hunt" by NSA and its Stasi-like Security unit, the "Q Group," to plug all leaks from the signals intelligence and cyber-warfare agency even if the information provided to the media concerns criminal conduct like contract fraud, sexual misconduct, illegal surveillance of American citizens, and illegal "sneak an peek" break-ins of the homes of NSA employees and contractors by NSA Q Group personnel and FBI agents.
NSA insiders lay blame for the problems at NSA’s Fort Meade, Maryland headquarters squarely on the shoulders of agency Director Air Force General Michael V. Hayden and his small coterie of close advisers, a few of whom have no substantive intelligence background. Hayden has been NSA Director since March 1999, the longest tour for any NSA Director. Not only did the White House extend Hayden’s NSA tour, but also nominated him to be the first Deputy Director of National Intelligence, where he will serve under John Negroponte.
Hayden’s reign at NSA has been marked by the emaciation of the career civilian corps through forced retirements and resignations, outsourcing of government positions to contractors, intimidation, forced psychiatric and psychological examinations for "problem" employees, increased work loads for shift personnel with no personnel augmentation, unreasonable personal searches by security personnel, and withholding salary increases for career personnel. A number of NSA employees are suffering from stress and fatigue and that is adversely affecting their job performance.
One of the most pervasive operational problems at NSA stems from the fact that when newly trained civilian and military linguists, analysts, and other operational personnel arrive at NSA for duty and are integrated into various operational work centers, they are soon quickly transferred to Iraq. This puts an inordinate workload on the career civilian NSA personnel . . .
Career NSA personnel claim that their most senior member, Deputy Director of NSA William B. Black, Jr., shows little interest in their plight. One long-time NSAer said Black often nods off at Hayden’s staff meetings. In 2000, Black, a retired NSA employee with 38 years of service, was rehired by Hayden from Science Applications International Corporation (SAIC) to be his deputy. Hayden’s selection of Black from outside the agency was considered a slap in the faces of those line NSA officers who would have been normally considered next in line for promotion to the much-coveted post. That slight began to severely affect agency morale a little over a year before the September 11, 2001 terrorist attacks on New York and Washington.
After 911 and subsequent revelations that NSA had intercepted two Arabic language phone calls on September 10, 2001 ("Tomorrow is zero hour" and "The match is about to begin") that indicated an imminent attack by Al Qaeda but failed to translate and analyze them in a timely manner to be effective, Hayden was looking for scapegoats. According to NSA insiders, he found one in Maureen A. Baginski, the Director of NSA’s Signals Intelligence (SIGINT) Directorate. According to the NSA insiders, Baginski, a 27-year NSA veteran and Russian and Spanish linguist, was set up for a fall by Hayden and his team. In 2003, Baginski was named Executive Assistant Director of the FBI for Intelligence. According to NSA sources, it was Baginski who carried out Hayden's directives that farmed out many Fort Meade functions to other facilities. Another Hayden project, "Groundbreaker," the outsourcing of NSA functions to contractors, has also been used by Hayden’s advisers to assign blame for the 911 failures at NSA. According to NSA insiders, Groundbreaker has been a failure . . .
Another one of Hayden's projects that has been criticized by the NSA rank-and-file is "Trailblazer," the program to modernize NSA's SIGINT systems. For example, operators in U.S. electronic warfare aircraft rely on NSA to provide accurate electronic intelligence (ELINT) data in order to program their radar warning receivers and jamming pods. However, NSA data, provided from two databases known as EPL (Emitter Parameter List) and "Kilting." 70 percent of NSA's ELINT data is 30 years old. NSA management has forced field operators to use raw ELINT intercept data, culled from a database called "Wrangler," to program their ELINT systems. NSA operations and software engineers believe this function should be handled by NSA and not the "warfighters." Updated ELINT data is handled by ELINT Technical Reports or "ELTs." In 2003, the year the Iraq war started, there were 938 ELTs submitted on new emitter data. However, there were only 200 updates made to the ELINT databases.
The failure to update the ELINT databases may have had disastrous consequences in Iraq. For example, EPL and Kilting do not contain data on air traffic control radars and microwave communications links. Because current ELINT systems cannot differentiate between commercial signals and hostile target tracking emitters, U.S. forces in Iraq have launched attacks on non-threat targets in the belief they were hostile. NSA sources report that many of the cases of fratricide in Iraq has been due to faulty or old ELINT data. For example, the failure by NSA to update ELINT data and provide emitter parameter data to warfighting units led to the accidental shootdown by a Patriot missile of a British Royal Air Force Tornado fighter in March 2003 near the Iraqi-Kuwaiti border at the outset of the Iraq campaign. Two British crew members were killed. The ELINT data used by the Patriot misidentified the Tornado as an enemy missile and the U.S. Army blamed the British crew for the mistake, claiming they failed to switch on its Identification Friend or Foe (IFF) equipment. NSA insiders claim that allegation was false. They claim that "blue signals" (friendly) are not adequately included in the emitter data sent to field units by NSA and that claims by the Pentagon that the Tornado was shot down due to pilot error were false.
In other incidents, the radar warning receivers (RWRs) on U.S. F-16s flying over Iraq have either evaded or fired AMRAAM (Advanced Medium-Range, Air-to-Air) missiles on microwave communications towers because the microwave signals were identified as threat emitters from hostile aircraft. U.S. jammers are also adversely affected by the failure to update ELINT data.
In fact, many of NSA's developmental ELINT systems, with cover names like Beikao, Boomvang, Canyondust, Cape Lookout, Chartvein, Eagle Reach, Galaxydust, Harpstring, Hokusai, Irish Den, Jetavator, Monocle, Needleice, Platoonwolf, Quadrunner, Radiant Spruce II, Roman Alliance, Seadiver, Shadowboxer, Sharkbite, Shiloh, Starquake, Stouthearted,and Sunbeaver are not found in the master NSA ELINT project database, which also has a cover name: Brasscoin.
Many of NSA's other SIGINT systems are in the same conundrum. Rather than simplify and modernize NSA's SIGINT development and deployment, Trailblazer has done nothing to modernize or cut acquisition costs. In a suspicious move by NSA, the Trailblazer contract was sole-sourced to SAIC, the firm from which Hayden hired his deputy director. As with Groundbreaker, Trailblazer's contractors consist of a team led by a prime contractor. Trailblazer's team overlaps with Groundbreaker -- companies like CSC and Northrop Grumman are also found on the Trailblazer team. Booz Allen Hamilton and Boeing are also on the SAIC team. According to NSA officers, one SAIC official left the firm to work for Hayden at NSA during the time the Trailblazer bidding process was underway. The individual then returned to SAIC as a senior vice president, according to NSA sources. NSA employees, upset about the control that SAIC now has over the agency, refer to NSA as "NSAIC." . . .
At his Senate Select Intelligence Committee nomination hearing for Deputy Director of National Intelligence, Hayden confirmed that Trailblazer was over budget and behind schedule. He told the committee that Trailblazer's "cost was greater than anticipated in the tune, I would say, in hundreds of millions." Hayden confirmed the report of the joint congressional committee that probed the 911 intelligence failures that Trailblazer was several years behind schedule. NSA sources claim that Trailblazer is at least five years behind schedule and $600 million over budget.
However, the career NSA operational personnel may be getting squeezed not so much for policy and management differences but because of what they know about the lies of the Bush administration. In addition to the obvious lies about Iraqi WMDs, many personnel are well aware that what occurred on the morning of 911 was not exactly what was reported by the White House. For example, President Bush spoke of the heroic actions of the passengers and crew aboard United Flight 93 over rural Pennsylvania on the morning of 911. However, NSA personnel on duty at the NSOC that morning have a very different perspective. Before Flight 93 crashed in Pennsylvania, NSA operations personnel clearly heard on the intercom system monitoring military and civilian communications that the "fighters are engaged" with the doomed United aircraft. NSOC personnel were then quickly dismissed from the tactical area of the NSOC where the intercom system was located leaving only a few senior personnel in place. NSA personnel are well aware that Secretary of Defense Donald Rumsfeld did not "misspeak" when, addressing U.S. troops in Baghdad during Christmas last year, said, "the people who attacked the United States in New York, shot down the plane over Pennsylvania." They believe the White House concocted the "passengers-bring-down-plane" story for propaganda value.
Morale at NSA has plummeted from repeated cover-ups of serious breaches of security by senior officials. While rank-and-file employees are subjected to abusive psychological and psychiatric evaluations for disagreeing with summary intelligence reports provided to outside users or "consumers" and even for more mundane matters, others are given a pass. Ironically, one of the psychiatrists used by NSA to evaluate problem or disgruntled employees was recently found by police to be growing marijuana at his home in Crofton, Maryland.
In 2008, NSA and FBI surveillance of current and former NSA and Justice Department employees who were suspected of leaking information to the press about the NSA's super-classified STELLAR WIND warrantless digital surveillance program, called the "Terrorist Surveillance Program" by the Justice Department, was stepped up.
On March 10, 2008, Gorman wrote an article for the Journal titled, "NSA's Domestic Spying Grows As Agency Sweeps Up Data." Gorman wrote:
"According to current and former intelligence officials, the spy agency now monitors huge volumes of records of domestic emails and Internet searches as well as bank transfers, credit-card transactions, travel and telephone records. The NSA receives this so-called 'transactional' data from other agencies or private companies, and its sophisticated software programs analyze the various transactions for suspicious patterns. Then they spit out leads to be explored by counterterrorism programs across the U.S. government, such as the NSA's own Terrorist Surveillance Program, formed to intercept phone calls and emails between the U.S. and overseas without a judge's approval when a link to al Qaeda is suspected."
The previous year, as WMR reported in May 12, 2009, former Justice Department prosecutor Thomas Tamm's home was invaded by a SWAT team of federal agents:
In 2007, Tamm's home in Potomac, Maryland was raided by zealous FBI agents who suspected him of leaking details of the so-called "Terrorist Surveillance Program" (TSP) to journalists. Tamm tried to inform Congress about the illegal program but was rebuffed by, among others, the ranking Democrat on the House Judiciary Committee, Representative John Conyers (D-MI).
At the time of its inception after 9/11, the TSP or as NSA and the Oval Office referred to it, "Stellar Wind," was so classified that only the Attorney General and one other person in the Justice Department knew about it. The TSP totally bypassed the Foreign Intelligence Surveillance Act (FISA) warrants that the OIPR prepared for approval by the Foreign Intelligence Surveillance Court (FISC). U.S. Judge James Robertson was so incensed about the bypassing of the FISC, he resigned from it in protest on December 20, 2005. U.S. Judge Royce Lamberth, nominated by President Ronald Reagan and who served as Presiding Judge of the FISC until 2002, was also adamantly opposed to TSP and its systematic bypassing of his court.
WMR's report continued: Tamm was also the first person within Justice who corroborated what NSA personnel were reporting about the agency conducting illegal data mining. One of those individuals was NSA employee Russell Tice, who was also subjected to an FBI investigation and government harassment.
Although the govenrment employees who brought attention to the high-level criminality involving the TSP/Stellar Wind were and, in some cases like that of Tamm, are still being investigated, no criminal investigations were brought against the telecommunications companies that participated in the criminal conspiracy to spy on Americans illegally. In fact, Congress gave the telecommunications firms immunity from lawsuits and prosecution as a result of a deal worked out with the Bush administration. One of those senators who voted for the immunity deal is Barack Obama.
After the FBI conducted interviews of all OIPR employees in their quest for the leaker, on August 1, 2007, 12 government vehicles pulled in front of Tamm's home in Potomac, Maryland. Eighteen armed federal agents wearing body armor stormed into Tamm's home while his wife was cooking breakfast. Tamm was removed from his home by the agents who spent seven hours going through his and his family's property. The FBI agents even asked Tamm if there were any "secret rooms" in his house. They also inquired about any weapons in the house and whether he had been visited at home by reporters from The New York Times.
The agents tore through every room, awakening Tamm's son and daughter. The agents seized all the lap top computers, including those of Tamm's children, and a 10-year old lap top. Also seized were the Tamm family's Christmas card list and a calendar with doctors appointments.
After two days, Tamm was offered a deal that he could plead guilty to a felony in return for his testifying against journalists, including the New York Times' James Risen, and their sources at the NSA. Three days later Michael Isikoff of Newsweek phoned Tamm -- someone had leaked information about the FBI raid to Isikoff. Tamm's identity as a source about the TSP was revealed by Isikoff in the December 22, 2008, issue of Newsweek.
In 2008, one of WMR's sources discovered that his home had been broken into and anything that could store digital data had been stolen: laptops, digital cameras, USB fthumb drives, etc. Moreover, relatives of the individual discovered that the lock to their home had been drilled out in what was an obvious "black bag" sneak and peel operation.
That same year, this editor discovered that the lock to his apartment door at Potomac Towers in Arlington, Virginia had been drilled out by a circular saw drill bit that drilled around the lock cylinder. When the apartment maintenance man was called to check the lock, he discovered the fragments of the lock pins scattered on the floor at the base of the door. He stated at the time that he had never experienced anything like it in the past.
FBI and NSA surveillance of people affiliated with NSA continued through last week, with this editor and one of his sources being tailed in 2009 in the suburban Maryland suburbs of Washington, DC and an additional tail of a source being conducted last week in Annapolis, Maryland.
The indictment of Drake in reminiscent of the case brought against former NSA signals intelligence (SIGINT) analyst Ken Ford, Jr. in 2006. In March 2006, Ford was sentenced to six years in prison in a case replete with prosecutorial and judicial misconduct by Rosenstein, Assistant US Attorney David Salem, and US Judge Peter Messitte. On April 30, 2007, WMR reported: "Ford was set up in a clumsy Justice Department, FBI, and NSA Security Division operation to punish him for his May 2003 signals intelligence (SIGINT) analysis report that concluded, based on intercepts of Iraqi communications, there was no truth to the Bush administration’s claim that there were weapons of mass destruction in Iraq. Ford’s report, with his name and that of his supervisor on it, ended up on Vice President Dick Cheney’s desk. From that time on, Ford was a marked man for the neo-con cabal operating within the White House, Justice Department, Pentagon, and US Intelligence Community senior staff."
At one point during Ford's trial, Messitte called Ford to his bench and asked him if he had spoken to this editor. Ford replied that he had not, whereupon Messitte asked, "Is Mr. Madsen in the court room?" I was not present at the time but I was later told by an informed source that Messitte was prepared to call me to the stand to be asked about the sources of my stories on the case. Such a development would have required me to invoke my First Amendment rights, as the press is the only occupation identified by name in the Bill of Rights as being protected. There was a risk of a contempt ruling and possible federal prison had I been present during Messitte's "kangaroo court" proceedings.
Ford continues to serve his six year sentence at Lewisburg federal prison in Pennsylvania. Attorney General Eric Holder was sent a letter by Ford's parents on November 18, 2009, calling for the appointment of a special posecutor in the case against their son. To date, Holder has not responded to the letter.
The letter follows:
November 18, 2009
SENT CERTIFIED MAIL / E-MAIL / FACSIMILE
Honorable Eric H. Holder. Jr.
Attorney General of the United States
Honorable David W. Ogden
Deputy Attorney General of the United States
950 Pennsylvania Avenue, N.W.
Washington, D.C. 2053 0-0001
United States v. Kenneth Wayne Ford. Jr.
Criminal Case No(s): 04-cr-l l8JKS, 05-cr-0098PJM and 05-cr-0235PJM
Messrs. Holder and Ogden:
In the interest of justice, we, the parents of Kenneth Wayne Ford, Jr., ("hereafter Mr. Ford") request an immediate appointment of Special Counsel to investigate unwarranted prosecutorial misconduct, vehement malicious persecution and prosecution of Mr. Ford under the Espionage Act §793 (e) - Gathering, Transmitting or Losing Defense Information. On Wednesday, September 23,2009, President Obama mandated that DOJ establishes New State Secrets Policies and Procedures.1
President Obama's implementation of State Secrets and Policies encompasses matters in this case. Prosecutors knowingly and willfully engaged in conduct involving dishonesty, fraud, deceit and misrepresentation throughout this case and trial. Mr. Ford was convicted under 793(e) - Espionage and 1801 - Making A False Statement On A Government Form. Mr. Ford was sentenced to 6 years in prison for Count 1 and 3 years in prison, to be served concurrently with Count 1, for Count 2. After imprisonment, Mr.
1 “It sets out clear procedures that will provide greater accountability and ensure the state secrets privilege is invoked only when necessary and in the narrowest way possible...” Attorney General Eric Holder September 23, 2009
Ford is to be on probation for 3 years. He also was ordered to pay a $200.00 assessment. Mr. Ford began serving this unjust prison sentence on May 16. 2006. He has been in prison for over 3 years and 6 months for doing absolutely nothing, except being a patriotic American and a good person.
Not only is Mr. Ford innocent, but nothing happened. This case is totally fabricated by the FBI and all involved, specifically the prosecutors and judge know it. Mr. Ford is a victim of a hate crime, a malicious prosecution and a tragic rush to jail an innocent man. See North Carolina v. Seligmann 06-cr-4332-33 (Dismissed 4/712007), Franks v. Delaware, 438 U.S. 154 (1978) and Brady v. Maryland, 373 U.S. 83 (1963). These cases demonstrate that 'false' arrest can happen to anyone - as in the matter of distinguished Harvard professor Henry Louis Gates, Jr., one of the nation's pre-eminent African-American scholars, falsely arrested in his own home.
A. Prosecutors Willfully Witheld Exculpatory Evidence From Defense
DOJ prosecutors repeatedly invoked state secret privileges, suppressed evidence as classified and deliberately withheld from Mr. Ford's defense exculpatory FBI Search Warrant Affidavits for well over 19 months. Ultimately, these search warrant affidavits were suppressed from Mr. Ford's trial. We have recently discovered that these affidavits have never been filed and are not apart of Mr. Ford's official court file.
On December 15, 2005, United States Attorney For The District of Maryland Rod J. Rosenstein and Criminal Division Assistant Attorney General Alice Fisher issued a press release in Mr. Ford's case, which stated in part, that: (Though there was conflicting evidence of what Ford intended to do with the classified information - the jury's verdict demonstrates that it was satisfied that Ford had unauthorized possession of the information". With the admission of Rosenstein that there existed "conflicting evidence" in Mr. Ford's case and the fact that the judge removed the required elements of 'belief... and intent...' from the jury instructions, should have rendered the indictment defective. (See Exhibit A - Rosenstein Press Release dated 12/15/2005)
FBI Special Agents Michael L. Thompson and Frederick C. Marsh both submitted sworn search warrant affidavits to a federal judge alleging that a Tonya Tucker had contacted the NSA to report Ford's alleged espionage. (Ford had known Tucker for 9 weeks - from 11/13/2003 to 1/11/2004 - and decided that she definitely was not his type. He later realized Ms. Tucker is a FBI confidential informant and was placed into his life by Special Agent Michael L. Thompson.) Defense counsel subpoenaed cell phone records of Tonya Tucker from Sprint, which clearly listed the voice call details of Date, Time. Phone Number. Destination, etc. (Tucker's alleged cell phone calls were described in the Thompson affidavit and completely identified in the Marsh affidavit.
From this, we were able to subpoena thru our attorney, her cell phone records.) Sprint records affirmed that Tonya Tucker Did Not contact NSA on January 5.2004. January 9. 2004. January 10. 2004 and January 11, 2004 from her cell phone number 407-616-5683 listed on the Sprint telephone record print-out and on page 5 of 12 of FBI Special Agent Frederick C. Marsh's sworn search warrant affidavit, which he wrote was "in support of the sworn search warrant affidavit" submitted the previous day, to the same judge, by FBI Special Agent Michael L. Thompson.
With the introduction of the subpoenaed cell phone records, it is apparent the Thompson and March search warrant affidavits are perjured and fabricated. Both agents are therefore subject to penalties of perjury. Also. very importantly. the cell phone (It should be noted here that prosecutors told the jury that Ms. Tucker was a friend of Mr. Ford's and simply was a "tipster".) (See Exhibit B - FBI Affidavits and Tonya Tucker's Cell Phone Records)
Mr. Ford, as required by NSA regulations, earlier reported a threatening e-mail sent to him on Tuesday, November 25th2003 at his "AOL" address a month and a half before his arrest. The e-mail was sent by a "Dr. Takiya", who claimed to be a friend of Tonya Tucker. Based on newly discovered evidence on September 1.2009, it was confirmed that Ms. Tucker is the author of the e-mail. Ms. Tucker signed her name onto an internet guest book August 15, 2006 with the e-mail address of Msunique_2@yahoo.com, which is the same e-mail address of the treat letter sent to Kenneth Wayne Ford, Jr. on Tuesday, November 25 .2003.
The e-mail threatened Ford that his security clearances would soon be revoked. She said she knew people at NSA who had clearances just like he did. Ford reported the e-mail the very next day to NSA Head Security Officer Anne Mennis. She ignored the email, not taking it seriously at all.. Ultimately, the admission of the e-mail as exculpatory evidence to Mr. Ford was suppressed from the trial by the judge. (See Exhibit C - Threatening E-Mail / Newly Discovered Evidence).
Newly discovered evidence of a newsletter dated March 31. 2006, states that FBI Special Agent Dave Evans was the lead FBI supervisor in the case against Mr. Ford. The defendant, Mr. Ford, was never aware that FBI Special Agent Dave Evans existed. (We, his parents, discovered this newsletter on the internet in 2008.) FBI Special Agent Evan's newsletter was titled, Maryland Man Sentenced For 'Stealing Secret Documents'.However, indictments alleged that Mr. Ford was charged with 'Unauthorized Possession of National Defense Documents" - not theft of secret documents.
FBI Special Agent Evans also said that: “As it turned out, our tipster was and didn't even make the drive to the airport." Nonetheless, the prosecutors continued to prosecute and incarcerate an innocent man.
FBI Special Agent Evans also stated that: (Our agents ultimately determined ultimately ended up in." Nonetheless, prosecutors indicted and incarcerated Mr. Ford with knowledge that 6'qonflicted evi4ence" existed in this case. (See Exhibit D – FBI Special Agent Dave Evans' Newsletter dated 3/31/2006)
Certainly, the defense has a right to depose and cross-examine the FBI Special Agent who was the lead supervisor in this case. Prosecutors withheld FBI Special Agent Evans from the defense. They also withheld Special Agent Frederick C. Marsh from the defense. The Marsh affidavit was suppressed during the suppression hearing by the judge, Judge Peter J. Messitte, before the trial began on 11/29/2005. Thus, that which brought Mr. Ford into the legal system and ultimately into a federal courtroom for prosecution, was not allowed into the trial. The jury was unaware of the affidavits. (The defense did not get them until 19 months after Mr. Ford’s arrest. Please keep in mind Mr. Ford has been totally under arrest the entire time since 1/11/2004 to the present.) To date, those affidavits have never been filed. They are not listed on the docket page of the case and they are not physically in the court file. It was represented and testified to the jury by DOJ prosecutors and FBI Special Agent Michael L. Thompson that he was the lead agent and only agent assigned to the Ford Case.
B. Even If Papers Had Been Present – The Text of §793 Is Vague And Should Not Have Been Applied In This Case
First, the statutes require that a defendant transmit information relating to the national defense. There are no allegations that Mr. Ford ever transmitted, sold, stole, secreted, purloined, paid for or otherwise obtained classified information inside or outside the government - by any illegal means. Legislative history of $793 makes plain that [Congress was concerned with spying].
The government never charged Mr. Ford with spying, injury to the United States on behalf of a foreign nation or communication to any person not entitled to receive classified information. Due process requires that a criminal statute provide a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. See Thomas v. Davis, 192 F.3d 445,45514n Cir. 1999). If a law is "vague or highly debatable, a defendant - actually or imputably - lacks the requisite intent to violate it." See United States v. Mallas. 7 62 F .2d 36r , 363 14'n cir.1985). criminal prosecution for the violation of an unclear duty itself violates the clear constitutional duty of the government to warn citizens whether particular conduct is legal or illegal. See U.S. v. Rosen and Weissman 05-cr-225.
A statute cannot be construed so as to delegate to prosecutors and juries the "inherently legislative task" of determining what type of possession of national defense information are so reprehensible as to be punished as crimes. See United States v. Kozminski. U.S. 93 1,949 (1988) (rejecting construction of criminal statute that would *delegate to prosecutors and juries the inherently legislative task of determining what type of coercive activities are so morally reprehensible that they should be punished as crimes").
Second, the canon of strict construction of criminal statutes and the rule of lenitv ensure fair warning by resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered. Lanier, 520 U.S. at 266. Third, due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope. Each of these three elements is based on the fact that it must have been reasonably clear the time that the defendant’s conduct was criminal.”
United States Attorney for the District of Maryland Rod Rosenstein confirmed by his own statement that: "Though there was conflicting evidence of what Ford intended to do with the classified information – the jury’s verdict demonstrates that it was satisfied that Ford had unauthorized possession of the information.”
Therefore, one would conclude that it was apparently not 'reasonably clear' that Ford's alleged conduct was criminal. Our son was incarcerated based on “unclear conflicting evidence'. An egregious miscarriage of justice at the highest level is evident throughout this case.
Each of these three manifestations is based on the notion that it must have been "reasonably clear at the time that the defendant's conduct was criminal". Elements applied to Mr. Ford's case affirm that reasonable clarity was severely lacking. Courts have ruled that §793 (d) and (e) apply only to the transmission of tangible information. ln fact, these rulings were the basis of Special Counsel Patrick Fitzgerald's explanation as to why he did not bring charges under the Espionage Act §793 against either the government officials who leaked the name of CIA agent Valerie Plame to the press or the reporters who subsequently reported that name to millions of readers around the world.
The following exculpatory evidence, which would have exonerated our son, was suppressed from the trial and jury: 1) FBI Form 302 Statement by Tonya Tucker (FBI Confidential Informant), 2) Tonya Tucker's threatening e-mail to Mr. Ford and 3) Special Agents Thompson's and Marsh's Search Warrant Affidavits. Special Agent Marsh's affidavit clearly affirmed on January 11, 2004, page 6 of 12 that: “A review of criminal history records reflect that TUCKER has a number of arrests, including arrests for Driving while suspended. Criminal trespassing. Robbery. among others."
Courts have repeatedly ruled that the government may not excuse its presentation of false testimony by claiming that: (a) it did not know, (b) it did not understand what other agencies knew, or (c) it believed the testimony. It cannot use these excuses because they are not the law and the facts do not support them. See Mesarosh. et al v. United States, 352 U.S. I (1956); Giglio v. United States, 405 U.S. 150 (1972); and United States v. Mason, et al., 293 F.3d, 826 (5th Cir.2002). Fourth Amendment violations enumerated in the matter of Franks v. Delaware were repeated violations perpetrated on Kenneth Wayne Ford, Jr. by the United States Department of Justice (DOJ). In the matter of Franks v. Delaware, the Court held that: "Where the defendant makes a substantial preliminary showing that a false statement that a hearing be held at the defendant's request."
Federal prosecutors in Mr. Ford's case willfully applied national security standards of the suppression of evidence and discovery. DOJ prosecutors willfully enforced national security clearances upon defense counsel with full knowledge that DOJ did not obtain mandatory FISA applications and approvals.
Prosecutors ignored strict procedural requirements in accordance to the Foreign Reform Act of 2000"). Prosecutors clearly violated Title VI §603, 605 and 607. This case should never have been prosecuted. Title VI $608 provides, in part, that: "If any provision of this title (including an amendment made by this title), or the application thereof, to any person or circumstance, is held invalid, the remainder of this title (including the amendments made by this title), and the application thereof. to other persons or circumstances shall not be affected thereby.”
Kenneth Wayne Ford, Jr. is now 38 years old. He is the cream of the crop of young American citizens. He is an African-American and is highly educated. Mr. Ford graduated from DeMatha Catholic High School in Hyattsville, Maryland in 1990. He then went to the University of Miami in Coral Gables, Florida and graduated from there in 1995 with a Bachelor of Business Administration in Management and Organization degree. Mr. Ford served 4 years in the Uniformed Division of the Secret Service, where he received two cash awards in consecutive years for outstanding service. While in the Secret Service, Mr. Ford continued his education and enrolled into Strayer University. To his credit, he graduated in 2001, summa cum laude" earning a Bachelor of Science in Computer Networking degree. Later, Mr. Ford enrolled in the Masters program at Strayer University, earning in 2004, a Master of Science in Information Technology degree.
In 2001, Mr. Ford accepted employment at NSA as a Signals Intelligence Analyst. While employed at NSA, he received a cash award for outstanding service. Later, he was recognized with a large plaque - his name listed, among others, for outstanding work on a particular project. It was disclosed in the trial by a State Department officer that Mr. Ford had security clearances that less than 150 people in the entire country hold. Mr. Ford has worked extremely hard all his life, as he was not born with a silver spoon in his mouth, inherited wealth or privilege. He has spent over 23 years acquiring an education. He would never do anything to jeopardize his life or his accomplishments. After Mr. Ford's conviction, Mr. Lambert, the probation officer assigned to formalize his pre-sentencing report, commented to me (his mother) and included in his report that "Kenneth has not even had a traffic ticket."
D. Case Overview
On Sunday. January 11. 2004. FBI Special Agent Michael L. Thompson and NSA Security Officer Robert McCaslin arrived at Mr. Ford's home at approximately 5:50 p.m. and fabricated that they wanted to talk to him about his former position. Mr. Ford invited them in because he was led to believe they wanted to get his expertise on a work-related situation. About ½ hour later, their attitudes changed and Mr. Ford realized they were unjustly accusing him of espionage. Simultaneously, with these accusations, they began searching his home - 2-I/2 hours before the search warrant arrived. FBI Special Agent Frederick Marsh arrived with a search warrant and about 23 additional agents.
During the course of this ordeal, Mr. Ford was threatened by Special Agent Michael L. Thompson's unnecessary withdrawal of his gun. He was terrorized for 7-1/2hows as the agents rampaged his home. He was not allowed to leave his residence, contact his parents or answer his telephone. He was denied food and water. He was not allowed to use his own bathroom until Thompson took him away from his home -7-1/2 hours later. See Title 18, Part I, Chapter 113C - Torture - "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control." (See Exhibit E -Letter by Kenneth W. Ford, Jr. Documenting Events)
E. DOJ Triple Jeopardy Indictments
The government's 1st indictment, and 2nd case number, was filed on 3/4/2005. U.S. District Court Judge Peter J. Messitte dismissed the case without prejudice on 5/162005. The 2nd indictment, and 3rd cse number, dated 5/23/2005, contained the exact charges and language as the ls indictment. The 3rd indictment, which we had no knowledge of until recently, is dated 11/28/2005. The docket indicates that there was a superseding indictment, arraignment and plea of not guilty all on the same day – 11/28/2005. It indicates Mr. Ford appeared before Judge Messitte and gave a plea of 'not guilty' to each of the two counts against him. This is untrue. Mr. Ford never appeared before Judge Messitte or any other judge on 11/28/2005. His trial started the next day, 11/29/2005. It is impossible to appear for an arraignment one day and be tried by jury the very next day.
It should be noted here that on March 30,2006, at the end of Mr. Ford's 2ndsentencing hearing, Judge Messitte dismissed the original indictment. He and Prosecutor Salem signed papers to that effect. Judge Messitte said several times during the trial, Mr. Ford was being prosecuted on the superseding indictment. (Of course, this is impossible.) Apparently, at some point, Judge Messitte and Mr. Salem realized this. Consequently, this dismissal has never been filed, is not in Mr. Ford's court file and is not on the docket. (See Exhibit F - Indictments, Docket Listings of 1//28/2005 Superseding Indictment, Arraignment and Not Guilty Plea and Transcript Page of Dismissal of Original Indictment) Also See $3434 - Presence of Defendant - (Rule) 3
Also, there appears on all three indictments: 'Aiding and Abetting (1S U.S.C. §2)'. Mr. Ford was never charged with this crime. It does not appear anywhere else in the indictment nor was it addressed in the trial to the jury. In addition to the indictments being illegal, these acts make the indictments themselves faulty.
The 1st count was cited under Federal Criminal Code 793(e) - Espionage. FBI Receipt For Property Seized / Form 597 listed all items seized from Mr. Ford's residence. Ironically, there was not one (1) document identified as 'classified papers' prosecutors falsely alleged were taken from Mr. Ford's residence.
At the trial, FBI Special Agent Bridget Bigham, Seizing Agent, testified that she was told to put a classified sticker on a Fed Ex envelope found in a suitcase which belonged to career criminal Tonya Tucker. (The envelope is listed by FBI Special Agent Bigham as #9 on the FBI Form 597.) (See Exhibit G -FBI Form 597) Special Agent 3
3 In United States v. Randall, f 71 F.3d 195,203 (4th Cir. 1999) The Supreme Court ruled that the Fifth Amendment's grand jury guarantee does not permit a defendant to be tried on charges that are not made in the indictment against him, and therefore, 'after an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself. See United States v. Randall, 471 U,S. 130, 143 (1985). See United States v. Brady, 456 U.S. 152; and United States v. Young, 470 U.S. 1, 16 (1985).
Bigham testified she did not look at the papers while in Ford's home. She further testified the alleged papers seized were not photographed in Ford's home as required by procedures, but were photographed days later at an FBI facility. (See Exhibit H - Excerpt of Agent Bigham's Transcript Testimony)
DOJ prosecutors testified during the trial that it did not have any 'surveillance evidence' nor 'any eyewitness accounts' of Mr. Ford allegedly removing classified documents from NSA. Prosecutors should have dismissed all charges against Mr. Ford.
The 2nd count was Title 18 U.S.C. $ 1801 - Making A False Statement On A Government Form. Mr. Ford accepted employment with Lockheed Martin. Prosecutor David Salem had already gotten him fired from Northrop Grumman and after working for 3 weeks at Lockheed Martin, Salem was successful in getting him fired from there also. Ford truthfully provided Lockheed Martin a 1-1/2 page written account of alleged charges against him. At the trial, Judge Messitte allowed Prosecutor Salem to severely redact Ford's written statement. Salem told the judge the statement "prejudiced him". (See Exhibit I - E-Mail Dated 10129/2004 to Lockheed Martin) AUSA David I. Salem and DOJ National Security Division Trial Attorney Mariclaire D. Rourke testified that Mr. Ford backed his pick-up truck to the loading dock and loaded these papers into his truck.
In contradiction of their testimony, Mr. Ford's former NSA supervisor, Ms. Jacqueline Welch ("hereafter Jacqueline W") testified that she in fact had seen Mr. Ford on the day in question - December 19,2003 - standing in the parking lot beside his 'cream-colored 4 door sedan (car)'. Former Counsel on redirect, ascertained whether or not she knew the difference between a 'pick-up truck and a car . She affirmed that she did. Jacqueline W further testified that she never knew Mr. Ford had a pick-up truck. At that point, DOJ's over zealous prosecutors' alleged pick-up truck was referred to as a 'vehicle'. (See Exhibit J - Excerpt of Jacqueline W's Testimony)
Special Agent Michael L. Thompson admitted under oath that there were no fingerprints belonging to Mr. Ford found on any of the thousands of sheets of classified papers allegedly found in Mr. Ford's home. Once again, none of these alleged papers were listed on the FBI's official seized evidence Form 597. (See Exhibit K - Excerpt of FBI Special Agent Michael L. Thompson's Testimony)
Mr. Ford is the only American citizen in the history of the Espionage Act, to be charged, prosecuted and convicted under the statute without meeting the requirements of the statute. The United States Court of Appeals for the 4th Circuit recently upheld the requirements that in order to charge under the Espionage Act of 1917 - §793(e) one has to have the belief that what one is doing will harm the United States and/or help a foreign entity and one must have the intent to harm the United States and/or help a foreign entity. See United States v. Rosen and Weissman,557 F.2d 192 4th Cir.2009).
Judge Peter J. Messitte, during the suppression hearings, willfully discarded the requirement that the government had to prove the “belief” 'element. Judge Messitte, while charging the jury, willfully eliminated the need for the government to prove the element of "intent.”
Under the federal sentencing guidelines, espionage (Federal Criminal Codes §793(d) and (e) cannot be sentenced unless there is the element of transmittal. So, effectively, since a transmittal is a prerequisite for sentencing under §793(e), then without it, there cannot be a charge. The government never alleged Ford transmitted anything. As a matter of fact, NSA Security Officer Robert McCaslin sent a letter to Prosecutor David Salem dated 713112004 saying Ford's electronic equipment at work and at home were analyzed by NSA and were found to be clean. The letter was not allowed into the trial.
Subsequently, the "CIPA" Intelligence Authorization Act for 2001- Title VI §607 - Coordination Requirements Relating to the Prosecution of Cases Involving Classified information was totally ignored by Assistant United States Prosecutor David I. Salem and Dept. of Justice Trial Attorney Mariclaire D. Rourke.
The National Security Procedure Statute 9-90.020, provides that DOJ prosecutors had no authority to make decisions in this case. "CIPA" $607 - $1.1 of Executive Order No. 12958, provides that a Senior Official, the President of the United States, must be notified prior to prosecution. ln this case, that President was former President George W. Bush, Jr. - another statutory mandate ignored and violated in the matter of Kenneth Wayne Ford, Jr. $793(e) 'unauthorized possession' is contradictory to the National Security Act which provides that NSA employees have a life-time obligation and commitment regarding NSA classified documents.
G. Violation of Dept. of Justice Guidelines/National Security Procedures
DOJ's USAM guidelines regarding National Security Procedures §9-90.020 clearly dictates that the authority to conduct prosecutions relating to the national security lies with the Justice. USAM unequivocally states, in part that:
All prosecutions affecting, involving or relating to the national security. and the responsibility for prosecuting criminal offenses, such as conspiracy, perjury and false statements, arising out of offenses related to national security, is assigned to the Assistant Attorney General of the National Security Division or higher authority. See 28 C.F.R. S 0.61 The Counterespionage Section of the National Security Division, under the supervision of the Assistant Attorney General or higher authority, conducts, handles, and supervises prosecutions affecting, involving or relating to the national security." DOJ trial attorney Mariclaire D. Rourke and AUSA David I. Salem did not have authority to prosecute a National Security Espionage case against Kenneth Wayne Ford, Jr.
We recently reviewed Mr. Ford's court file. Although there are a few orders, from 8/2005 to 1112005, appearing in the case file that indicate the Assistant Attorney General was in compliance with that particular order, it is with great concern that we ask you to investigate this. We have no proof or certification that the Assistant Attorney General's alleged involvement with this case was authentic. As in other things involving Mr. Ford's case, we suspect this too is a fabrication.
H. DOJ Violated FISA Court Statutes
FISA Court specifically prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" (which may include American citizens and permanent residents suspected of being engaged in espionage and violating U.S. law on territory under United States control).
FISA allows a federal officer, authorized by the President of the United States acting through the Attorney Gener4l to obtain from a judge appointed by the FISA Court, search warrants and approval of electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information. Mandated strict FISA Court procedures were ignored by the FBI, DOJ Prosecutors and U.S. District Court of Maryland Judge Peter J. Messitte, who is not an appointed FISA Court Judge.
Specifically, FISA requires that where the target of the search or surveillance is a "United States person" - a U.S. Citizen or permanent resident alien - the judge must find that the Executive Branch's certification that a significant purpose of the search or surveillance is to obtain foreign intelligence information is not "clearly erroneous". See 50 U.S.C. §1805 and 1824. Also see Brady v. Maryland, 373 U.S. 33 (1963); Strickler v. Greene, 119 S.T. 1936 (1999).
The elements of violations are: (1) the evidence must be favorable to the accused, either because it exculpates the defendant or because it impeaches the government; (2) the evidence must have been suppressed by the government, either willfully or inadvertently; and (3) prejudice must have been ensued. See Franks v. Delaware, 438 U.S. 154 (1978); See Brady v. Maryland, 373 U.S. 83 (1963); See USA v. Rosen & Weissman 05cr-225 (E.D.Va.)
We are not elected or high level corporate officials. We are "grass roots" people who are honest and hard working. President Obama stated at the 2009 NAACP 100th Anniversary celebration, that: "America is a place where, if you work hard, you can achieve success." A grave injustice has been done to a good American citizen (Kenneth Wayne Ford, Jr.). American citizens rely upon the United States Department of Justice to follow the rule of law.
In good faith, the initiation of a formal procedural investigation and the appointment of a Special prosecutor on behalf of our son, Kenneth Wayne Ford, Jr., is warranted and specifically should include an investigation of prosecutorial misconduct, violations of national security procedures, violations of FISA Court procedures, violations of issues in applying states secrets rules and the willful suppression of exculpatory affidavits and other exculpatory evidence in this case.
We are available at any time that is convenient to you to discuss this case. The elements in this letter by no means cover all the infractions against Mr. Ford. There were just too many illegal things done to put in a letter.
We seek an immediate vacation of Mr. Ford's conviction, full restoration of his revoked clearances and an immediate apology from the Department of Justice (DOJ).
Kenneth W. Ford, Sr.
Gloria D. Ford
l) Exhibit A - Rosenstein Press Release dated December 15, 2005
2) Exhibit B - Affidavits by SA Michael L. Thompson & SA Frederick C. Marsh and Tonya Tucker's Subpoenaed Cell Phone Records
3) Exhibit C - Tonya Tucker's threatening e-mail to Mr. Ford/Newly Discovered Evidence
4) Exhibit D - FBI Special Agent Dave Evans' Newsletter dated 3/31/2006
5) Exhibit E - Letter from Kenneth Wayne Ford, Jr. / Document of Events
6) Exhibit F - DOJ's Double Jeopardy Indictments; Docket of 11/28/2005
Indictment; Transcript Page of Dismissal of Original Indictment
7) Exhibit G - FBI Form 597 (Seized Items) w/ Computerized Listing Of Items
8) Exhibit H - Excerpt of Agent Bridget Bigham's Testimony
9) Exhibit I - E-Mail dated 10/29/2004 from Kenneth W. Ford, Jr. to Lockheed Martin
l0) Exhibit J - Excerpt of NSA Jacqueline Welch's Testimony
1l) Exhibit K - Excerpt of FBI Special Agent Michael L. Thompson's Testimony
President Obama, who prides himself as a constitutional scholar, having taught constitutional law at the University of Chicago, is about to become the subject of a major constitutional case in the indictment of Thomas Drake. Drake was not only exposing high level contract fraud involving two NSA directors -- Generals Michael Hayden and Keith Alexander -- but also allegedly involved a constitionally-protected entity -- the press -- in making details of the fraud known to the American taxpaying public. Not since Watergate have the American people been subject to runaway surveillance by the NSA and FBI.
Obama, who supported retroactive immunity from prosecution for telecommunications companies that swept up the digital communications of all American after proclaiming he was against it, will be the person on trial in the Drake case. And Obama may very well end up like Richard Nixon if the government does not impose restrictions on the public's right to know through imposition of the draconian Classified Information Procedures Act and the State Secrets Privilege.
As one NSA insider tersely put it: "I truly believe that NSA has some illegally wiretapped information (big-time dirt) on Mr. Obama, and NSA has been using it (via blackmail) against him ever since he flip-flopped on the vote for retroactive immunity for the telecommunication firms that insisted they did nothing illegal when they joined in with the Bush admin in comprehensive, 'sea to shining sea' warrantless wiretapping of all domestic U.S. communications."