MANPADS for Hezbollah?

In the August 9th edition of Jane’s Defense Weekly, Deputy Editor Robin Hughes reveals alleged plans by Iran to supply Hezbollah with “a steady supply of weapons systems,” including Chinese QW-1 and its own Mithaq (or Misagh) man-portable air defense systems (MANPADS). The article cites unnamed western diplomats, who also claim that Iran agreed to provide, “at a later date,” several different types of Russian missiles, including the sophisticated SA-16.

Assuming the information is accurate, the missile transfers are significant for several reasons. First, the missiles are a potential threat not only to Israeli military aircraft but also commercial airliners worldwide. Hezbollah has a long history of terrorist attacks against civilian targets. According to Georgetown Professor Daniel Byman, the organization “was perhaps the world’s most active terrorist organization,” and had a hand in several high profile attacks, including the hijacking of TWA flight 847 in 1985 and the bombing of the Jewish Community Center in Buenos Aires in 1994. Its involvement in such acts has waned in recent years, but there is no guarantee that it won’t resume these activities, or retransfer the missiles to terrorists with immediate designs on commercial airliners.

Secondly, the transfers violate a nascent but critically important international norm against the transfer of MANPADS to non-state actors, which is codified in resolutions, declarations and agreements adopted by members of several multilateral forums. Some of these agreements explicitly ban the transfer of MANPADS to non-state actors, while others do so indirectly by limiting such transfers to “foreign governments or to agents specifically authorised to act on behalf of a government after presentation of an official EUC certified by the Government of the receiving country.”
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AIPAC Defendants Did Not Seek Classified Document, Court Rules

In a favorable decision for two former officials of the American Israel Public Affairs Committee who are charged with conspiracy to unlawfully gather national defense information, a federal court ruled (pdf) late last week that they did not solicit actual classified documents and that the government cannot now claim that they did.

The latest decision follows an earlier ruling last week that denied the defendants’ motion to dismiss the case altogether.

The only document that was solicited by the defendants was described in their August 2005 indictment (pdf) as “not classified.”

“Significantly, this is the only overt act in which one of the defendants is alleged to have requested a document from a government official,” the court noted in the new ruling.

“While defendants are alleged to have discussed classified information with government officials, including information contained in classified documents, the superseding indictment does not allege that either [defendants] Rosen or Weissman ever sought an actual copy of any classified document from a government official,” the court noted.

But lately, the prosecution has changed its position and now wants to argue that the requested document was in fact classified after all.

The court said no. To make such a claim at this stage is not permissible since it “alters an essential fact alleged in the superseding indictment” and would therefore be unconstitutional.

The August 11 ruling by Judge T.S. Ellis, III, was first reported today by the New York Sun.

While advantageous to the defendants, the new ruling underscores the radical implications of this unprecedented case.

The upshot of the court’s interpretation is that the defendants (or anyone else) may be guilty of violating the Espionage Act even if they did not solicit classified “documents,” but only “information.” And not only that, the “information” they gather need not be classified, as long as it is “related to the national defense” and closely held by the government.

“Although not strictly necessary, nor always sufficient, the classification of information is highly probative of whether it is, in fact, ‘information related to the national defense’ such that a defendant could be prosecuted for its unauthorized disclosure,” the latest ruling said.

This is a crucial observation.

Classification may “not [be] strictly necessary” to justify prosecution of unauthorized disclosures (including disclosures by non-governmental persons such as the defendants) since, the Court affirmed, there are various kinds of unclassified, national defense-related information that are protected by the Espionage Act.

(On the other hand, mere classification may not be “sufficient” to render information protected by the specific terms of the Espionage Act because there are some kinds of classified information, e.g. some diplomatic or intelligence information, that are plainly not related to “national defense.”)

I discussed some of the implications of the AIPAC case on the NPR program On the Media this week (“No Secrets Allowed”).

And though Lebanon has one or two other things to worry about these days, word of last week’s decision in the AIPAC case was even featured in the Lebanese news outlet Ya Libnan, datelined “Beirut and Washington” (based on a Washington Post story by Jerry Markon).

MANPADS Report Withdrawn from FAS Web Site

A July 31 Department of Homeland Security report to Congress on the status of defenses against shoulder-fired anti-aircraft missiles was removed from the Federation of American Scientists web site after DHS objected (pdf) to its publication.

DHS urged that the unclassified report, marked “For Official Use Only,” be taken offline and, upon consideration, we agreed to do so.

“The Report has never been released by DHS to the public because it contains sensitive information such as the transition of military technology for potential civil use, systems performance of the prototype systems being developed by DHS and its partners, and the reliability of such prototype systems,” wrote DHS deputy associate general counsel William H. Anderson.

“Due to the sensitive nature of the Report, I request that your organization immediately remove the Report from its website.”

“If the Report is not removed from your website within 2 business days, we will consider further appropriate actions necessary to protect the information contained in the Report,” Mr. Anderson wrote in an August 9 letter.

“You took it offline? I’m surprised,” said one Congressional staffer who obtained the DHS report to Congress via FAS.

He said that executive branch restrictions on unclassified information had become a growing hindrance to Congressional oversight. If the document is really sensitive, he suggested, “it should be classified.”

Our intention is to review the document in light of the concerns expressed by DHS. Following such review, the document or portions of it may be restored to our web site.

A Postscript on Mobile Iraqi BW Labs

Did U.S. intelligence analysts actually “replicate” the mobile biological weapons laboratories that were supposedly deployed by Saddam Hussein, as stated in the Silberman-Robb Commission report?

Arms control expert Milton Leitenberg of the University of Maryland posed this question earlier this year.

Based on his own investigations, he has now concluded that there was no such replication of the supposed mobile BW labs.

“No mock-up containing the pieces of equipment shown in the drawings appears to have been produced, and no biological agent or simulant was produced.”

“Apparently the drawings [used in Secretary Powell’s 2003 UN presentation] were all that was ever prepared.”

“These self-conceived and self-imagined illustrations were all the ‘evidence’ that the United States government had to give to Secretary of State Powell to place before the United Nations and the world to support the claim that Iraq had mobile biological weapon production platforms…,” Dr. Leitenberg wrote.

See “Further Information Regarding US Government Attribution of a Mobile Biological Production Capacity by Iraq” by Milton Leitenberg, August 2006.

Nasrallah: A Self-Portrait

“I have been reading [former Israeli Prime Minister Ariel] Sharon’s biography for a while now, and I am going to read the book again.”

So said Hizbollah leader Hasan Nasrallah in an autobiographical note published last week in a Tehran magazine.

In a discussion of his political objectives, he seemed to exclude the possibility of establishing an Islamic Republic in Lebanon.

“Establishing an Islamic Republic is not possible with force and resistance. It requires a national referendum. A referendum that wins 51 percent of the vote is still not the solution. What it needs is a referendum for which 90 percent of the people vote.”

But about 40% of the Lebanese population is Christian.

“Hence, with this assumption, and in view of the status quo, establishing an Islamic Republic system in Lebanon is not possible at the present time,” he said.

See “Seyyed Hasan Nasrallah’s Autobiography,” Ya Lesarat Ol-Hoseyn (Tehran), translated by the DNI Open Source Center, August 10.

In a recent U.S. Treasury Department tabulation of hundreds of terrorist and criminal organizations and individuals, Nasrallah is listed with his passport number and date of birth — August 31. But for some reason his year of birth is given variously as 1953, 1955, 1958 or 1960 (noticed by Amir Oren of Haaretz).

Most news accounts indicate that his year of birth is 1960, though some suggest, probably incorrectly, that he has already turned 46.

Plutonium Reprocessing: two steps forward, one step back.

The administration has submitted a $250M request to Congress to start work on a plutonium recycling program as part of its Global Nuclear Energy Partnership, or GNEP, proposal. Trying to figure out exactly what the proposal is has been like trying to nail Jell-o to the wall. Whatever criticism is raised, DOE responds that, no, it isn’t quite that. So I was getting a good picture of what GNEP was not but could not figure out what it was.
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Recipients of “Leaks” May Be Prosecuted, Court Rules

In a momentous expansion of the government’s authority to regulate public disclosure of national security information, a federal court ruled that even private citizens who do not hold security clearances can be prosecuted for unauthorized receipt and disclosure of classified information.

The ruling (pdf) by Judge T.S. Ellis, III, denied a motion to dismiss the case of two former employees of the American Israel Public Affairs Committee (AIPAC) who were charged under the Espionage Act with illegally receiving and transmitting classified information.

The decision is a major interpretation of the Espionage Act with implications that extend far beyond this particular case.

The Judge ruled that any First Amendment concerns regarding freedom of speech involving national defense information can be superseded by national security considerations.

“Although the question whether the government’s interest in preserving its national defense secrets is sufficient to trump the First Amendment rights of those not in a position of trust with the government [i.e. not holding security clearances] is a more difficult question, and although the authority addressing this issue is sparse, both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense,” Judge Ellis wrote (p. 53).

The provisions of the Espionage Act are not impermissibly overbroad or unconstitutional, the Judge ruled, because they are limited by the requirements that the prohibited behavior be both knowing and willful.

“The government must… prove that the person alleged to have violated these provisions knew the [restricted] nature of the information, knew that the person with whom they were communicating was not entitled to the information, and knew that such communication was illegal, but proceeded nonetheless.”

“Finally, with respect only to intangible information [as opposed to documents], the government must prove that the defendant had a reason to believe that the disclosure of the information could harm the United States or aid a foreign nation….”

“So construed, the statute is narrowly and sensibly tailored to serve the government’s legitimate interest in protecting the national security, and its effect on First Amendment freedoms is neither real nor substantial as judged in relation to this legitimate sweep,” Judge Ellis wrote (p. 63).

Others will disagree.

For example, the classified 2004 report of Maj. Gen. Antonio Taguba on prisoner abuse at Abu Ghraib prison clearly fit the court’s description of national defense information that is closely held by the government. Moreover, its unauthorized disclosure was likely to, and did in fact, harm the United States. And yet that disclosure also served an important national purpose in prompting a public debate over U.S. policy on prisoner detention and interrogation.

But under Judge Ellis’ new interpretation, those reporters and others who communicated this information to the public could apparently be prosecuted under the Espionage Act.

Judge Ellis concluded his opinion by noting that the provisions of the Espionage Act “have remained largely unchanged since the administration of William Howard Taft.”

Technological and other changes over the past century “should suggest to even the most casual observer that the time is ripe for Congress to engage in a thorough review and revision of these provisions to ensure that they reflect both these changes, and contemporary views about the appropriate balance between our nation’s security and our citizens’ ability to engage in public debate about the United States’ conduct in the society of nations.”

Air Force Lab Will Not Fund Controversial FOIA Study

The Air Force Research Laboratory (AFRL) said this week that it will not administer a grant to a San Antonio, Texas law school to study state freedom of information laws.

In a story that prompted new concerns about official secrecy, USA Today reported last month that the government was going to pay St. Mary’s University School of Law $1 million to reevaluate state freedom of information laws in light of the threat of terrorism.

But the proposed freedom of information study “doesn’t fit with the information research and development that we do,” said Dan Emlin of the AFRL Information Directorate in Rome, New York.

That AFRL Directorate focuses on information technology — including C4I, artificial intelligence, and surveillance technology — but not information policy.

The freedom of information study “was more of a [policy] ‘project’ than bona fide research,” Mr. Emlin told Secrecy News, and “so the [AFRL] Director decided ‘We’re not going to do it’.”

Based on news reports and public statements, the proposed freedom of information study seemed oriented towards new limitations on public disclosure of information.

So, for example, St. Mary’s law school professor Jeffrey Addicott, the lead investigator, told USA Today that “There’s the public’s right to know, but how much?”

“There’s too much stuff that’s easy to get that shouldn’t be,” he added.

(“And plenty of stuff that should be easy to get that isn’t,” the Detroit Free Press objected in a July 26 editorial criticizing the program.)

But Senator John Cornyn, who sponsored the defense budget earmark of funds for the St. Mary’s project, said its purpose was not to increase secrecy.

“In fact, the exact opposite is true. The research will make certain that free flow of information is not unnecessarily hindered by security-driven laws approved by states after Sept. 11, 2001,” he said in a statement on the St. Mary’s web site.

“The study is not designed to assist the Department of Defense, Pentagon or individual States to weaken either State or Federal Freedom of Information Act laws,” according to another statement from the University.

Since the $1 million grant has already been appropriated by Congress in the FY 2006 defense appropriations bill, it is possible that another agency will step forward to administer the award. But with AFRL’s refusal to participate it is not immediately clear which agency that might be.

Defense Intelligence on the Lookout for MANPADS Components

The Defense Intelligence Agency has prepared an illustrated briefing (pdf) on the components of a MANPADS shoulder-fired anti-aircraft missile briefing to assist security personnel in identifying such weapons and apprehending those who possess them without authorization.

“An individual cannot legally possess a MANPADS [man-portable air defense system] under federal law,” the DIA briefing notes.

“If you encounter an individual in possession of a piece of equipment that resembles any of the attached photos… please hold and notify the On-Call Intelligence agent.”

The briefing was produced for the Transportation Security Administration by the Defense Intelligence Agency’s Missile and Space Intelligence Center.

See “MANPADS Components,” Defense Intelligence Agency, undated (2002).

A PowerPoint version of the same briefing is available here.