Govt Presses AIPAC Prosecution

In its prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC), the Bush Administration is staking out new legal territory, arguing that it is a crime for a reporter or any other non-government employee who does not hold a security clearance to receive and communicate classified information.

“The government respectfully submits that an ‘ordinary person exercising ordinary common sense’ […] would know that foreign officials, journalists and other persons with no current affiliation with the United States government would not be entitled to receive information related to our national defense,” according to the government’s January 30 response (pdf) to a motion to dismiss (pdf) filed by the AIPAC defendants.

This is a novel view of the press and the American public.

The idea that the government can penalize the receipt of proscribed information, and not just its unauthorized disclosure, is one that characterizes authoritarian governments, not mature democracies.

The government bases its position on a narrow reading of the Espionage Act of 1917 (18 U.S.C. 793), which prohibits certain communications of national defense information by “whoever” may do so.

“There plainly is no exemption in the statutes for the press, let alone lobbyists like the defendants,” the government said.

Prosecution of a member of the press “would raise legitimate and serious issues and would not be undertaken lightly,” the government volunteered. But the AIPAC defendants “are not members of the press and enjoy no constitutional rights reserved to the press.”

Of course, anyone who commits espionage should expect to be prosecuted for that crime. But that is not the issue in the AIPAC case, where the government seeks to penalize the non-espionage transmission of information that it considers classified.

“Whether a defendant was an agent of a foreign government is not relevant. The statute applies to any person, whether they are acting as an agent, or acting on their own,” the government said.

This is precisely what makes the AIPAC case a matter of broad public consequence. The prosecution’s expansive interpretation of the Espionage Act potentially applies to every American, indeed every person in the world (“anyone”), not just accused spies.

“The fact that the defendants were not agents of Israel, or any foreign nation, does not negate any element of the offense, and cannot be exculpatory.”

See “Government’s Consolidated Responses to Defendants’ Pretrial Motions,” United States of America v. Steven J. Rosen and Keith Weissman, filed January 30, 2006.

A closed hearing on the motions was held on February 16 and will resume on March 2.

What’s Classified and What’s Not

It is important to understand that there is no rigorous, consensual definition of what constitutes classified information. Instead, in a practical sense, classified information is whatever the executive branch says it is.

(A minority of classified information, such as nuclear weapons design information, is specified and protected by statute. The remainder, the large majority, is classified by executive order.)

In 1997, the Central Intelligence Agency declassified the total intelligence budget for that year ($26.6 billion). But intelligence budget figures from three, four and five decades earlier remain classified. Why? Because the CIA says so!

One might argue that it should be the other way around — budget figures from the remote past should be declassified while more recent figures should perhaps be classified. But such logic is foreign to CIA classification policy, and to the classification system as a whole.

By far the most sensitive government document Secrecy News has obtained in recent years is a January 2006 military manual that explains in nearly 200 pages of detail exactly how to use a particular type of weapon that is known to pose a significant terrorist threat.

If there is anything that should be classified in the interests of national security, this manual would seem to be it. Yet it is unclassified. Distribution is “unlimited.”

The conclusion that emerges from the chaos of government information policy is that the classification system is essentially an administrative tool used by the executive branch for its own internal purposes. It is a poor index of what is sensitive and what is not.

Congress Fumbles Over Warrantless Surveillance

On February 16, Senate Intelligence Committee Vice Chairman Sen. Jay Rockefeller presented a proposal to investigate the National Security Agency warrantless surveillance program.

A copy of Sen. Rockefeller’s motion, outlining the scope of the proposed investigation, is here.

But Committee chairman Sen. Pat Roberts blocked a vote on the motion until March 7.

“If, by that time, we have reached no detailed accommodation with the Administration concerning the Committee’s oversight role, it is possible that the Committee may vote to conduct an inquiry into the program,” Sen. Roberts said.

“If we are prevented from fully understanding and evaluating the NSA program, our committee will continue its slide into irrelevance,” said Sen. Rockefeller.

“Like Senator Rockefeller, I will not sit idly by and allow the President’s possible breaking of the law to be swept under the rug,” said Sen. Robert Byrd in a February 17 floor statement.

“I am today announcing my intention to submit to the Congress legislation that will establish a nonpartisan, independent, 9-11-style commission to investigate and determine the legality of the President’s actions,” Sen. Byrd said.

In the News

“Selectively applied, the declassification process can become political and sleazy,” according to an editorial in the Buffalo News. See “Cheney misuses expanded powers,” February 18.

The spectrum of opinion and analysis on the Vice President’s declassification authority was surveyed in “Cheney’s Secret Powers” by Dan Froomkin, White House Briefing, February 17.

“Another House Republican committee chairman has joined criticism of the Congressional Research Service for its legal analysis of the administration’s program of counterterrorist electronic surveillance.” See “Lawmaker hits wiretap memo” by Shaun Waterman, UPI/Washington Times, February 20.

Senator Kennedy introduces Emergency Preparedness Act

On February 15th, Senator Edward Kennedy introduced S.2291, The <a href=””Responsible Public Readiness and Emergency Preparedness Act, which aims to expand compensation and clarify liability issues that will arise if untested vaccines and countermeasures need to be distributed in the event of a pandemic disease outbreak.

The move is clearly designed to revise the sweeping liability protection inserted as part of the Public Readiness and Emergency Preparedness Act in the Defense spending bill conference report. That bill is widely regarded as incomplete since it does not provide for funding for a vaccine injury compensation program. It has also been widely criticized for providing overly zealous liability coverage of drug and vaccine companies as well as those delivering countermeasures to patients. In fact, it requires that for any injured person to get around the liability protection, they have to prove that a drug company or medical professional administering the drug or vaccine engaged in “willful misconduct.” This is, of course, next to impossible.

The new bill…

Continue reading

ABA Urges Review of “Sensitive But Unclassified” Policy

The American Bar Association (ABA) adopted a resolution (pdf) this week calling on the Attorney General to clarify that designating a record as “sensitive but unclassified” does not provide a legal basis for withholding that record.

The ABA also called for establishment of a standardized policy for employing the “sensitive but unclassified” (SBU) marking.

The increasingly common SBU designation has become problematic because SBU records are neither fish nor fowl — neither formally classified nor publicly available — and there are no commonly agreed upon standards for invoking the term.

“Agencies allow the marking of many types of records as SBU. This patchwork of definitions for safeguarding such records contributes to confusion regarding whether information should be withheld under FOIA. Such confusion is exacerbated by the fact that the term SBU is not derived from an existing FOIA exemption,” according to the ABA.

“Our Recommendation seeks the issuance of public guidance from the U.S. Attorney General, clarifying that the SBU classification does not constitute grounds for withholding information that would otherwise be disclosed under FOIA… Such a policy directive would help to reduce instances of excessive withholding caused by the confusion and lack of oversight concerning this designation.”

See the ABA Resolution (adopted on February 13), with an attached informational report (which was not formally adopted).

As it happens, a government-wide effort to standardize SBU policy is already underway, as previously reported (Secrecy News, 12/20/05).

Homeland Security Intelligence Strategic Plan

Efforts by the Department of Homeland Security to assert itself as a viable member of the U.S. intelligence community have yielded a new strategic plan for homeland security intelligence and a management directive organizing the Department’s intelligence activity.

The new strategic plan is a handsome document, but largely devoid of significant content.

See “DHS Intelligence Enterprise Strategic Plan,” January 2006 (3.3 MB PDF file).

And see “Intelligence Integration and Management,” DHS Management Directive 8110, January 30, 2006.

Relatedly, “DHS Has Not Implemented an Information Security Program for Its Intelligence Systems,” according to the title of a new DHS Inspector General report (flagged by

CRS Reports on China

Several recently updated reports of the Congressional Research Service deal with the People’s Republic of China, including the following.

“China and Proliferation of Weapons of Mass Destruction and Missiles: Policy Issues,” updated January 31, 2006.

“China’s Economic Conditions,” updated January 12, 2006.

“China’s Trade with the United States and the World,” updated January 23, 2006.

“China-U.S. Relations: Current Issues and Implications for U.S. Policy,”
updated January 20, 2006.

The use of commercial satellite photographs to identify an underground Chinese submarine base was reported in the FAS Strategic Security Blog on February 16.

In the News

In discussing the Vice President’s declassification authority yesterday, we should have noted that some categories of information are protected by statute, not just by executive order. Such information, including intelligence sources and methods that are protected by the National Security Act, cannot simply be declassified by presidential (or vice presidential) fiat.

The point was made in “The White House’s maestro of secrets,” Roanoke Times, February 17.

The AIPAC case, involving the use of the Espionage Act to prosecute the receipt (and not merely the disclosure) of classified information, was viewed from Israel in “Washington: Lobbying for freedom of speech” by Nathan Guttman, Jerusalem Post, February 16.

“Criticism rained down on Vice President Dick Cheney this week for failing to disclose his hunting accident to the public for a day, but advocates of open government said the episode was nothing new. For five years, they said, Cheney has led the Bush administration’s efforts to curtail the flow of government information.”

See “Activists assert secrecy is Cheney’s hallmark” by Charlie Savage, Boston Globe, February 17.

SSCI Confirmation Hearings

The records of two confirmation hearings conducted by the Senate Select Committee on Intelligence have just been published: that of Benjamin A. Powell to be General Counsel in the Office of the Director of National Intelligence, and that of John S. Redd to be Director of the National Counterterrorism Center.

Each contains some interesting details about the nominees, and some useful questions for the record presenting their views of their respective positions (in the large PDF versions here [Powell] and here [Redd] only).

The hearing record for Mr. Powell, the new ODNI General Counsel, also features (in the PDF version) a reprint of a technical paper he co-authored in the journal “Computers and Chemical Engineering” entitled “Adaptive Networks for Fault Diagnosis and Process Control.”