Senate Proposal to Criminalize Leaks Sparks Opposition

A legislative proposal by Senator Jon Kyl (R-AZ) that would criminalize the unauthorized disclosure or publication of classified information “concerning efforts by the United States to identify, investigate, or prevent terrorist activity” is drawing strong opposition even before it has been formally introduced.

The Kyl proposal (pdf), which would amend the espionage statute at 18 U.S.C. 798, is to be offered as an amendment to an unrelated bill on data mining that will be marked up by the Senate Judiciary Committee on Thursday, March 1.

Classified information on U.S. counterterror efforts appears in the press with some frequency and often serves as a stimulus to intense public deliberation. Today, for example, the Washington Post reported new information on controversial and possibly illegal CIA “black sites” where an unknown number of prisoners are held incommunicado for interrogation.

Under the sweeping Kyl proposal, disclosure or publication of such information could be punishable by up to twenty years in prison.

“The proposal seeks to stifle, with the threat of criminal prosecution, informed public debate about the most serious matters of the effectiveness of government counterterrorism efforts,” wrote dozens of public interest, first amendment and civil liberties advocacy groups (including FAS) in a February 27 letter (pdf) to the Senate Judiciary Committee.

“We strongly urge you to reject the proposed amendment,” they wrote in a letter coordinated by the coalition, directed by Patrice McDermott.

When a bill to criminalize the unauthorized disclosure of any classified information was introduced in 2000, it passed both houses of Congress before it encountered effective opposition (and it was subsequently vetoed by President Clinton).

In remarkable contrast, the present proposal by Senator Kyl has elicited organized opposition before it has even been formally introduced.

In addition to the letter, a coalition of media organizations known as the Sunshine in Government Initiative, directed by Rick Blum, issued its own critique of the bill.

The Kyl proposal was previously reported by Rebecca Carr of Cox News and also by the Reporters Committee for Freedom of the Press.

New Military Doctrine

A new U.S. Air Force directive “provides policies for managing nuclear weapons and weapon systems, and for protecting personnel, property, and the environment from hazardous exposure to radioactive materials.” See Air Force Policy Directive 91-1, “Nuclear Weapons and Systems Surety” (pdf), 13 February 2007.

Another new Air Force document on combating the threat or use of weapons of mass destruction “provides guidance for understanding, planning, and executing counter-chemical, biological, radiological, and nuclear operations to enable US forces to survive and operate effectively in this deadly environment.” See Air Force Doctrine Document 2-1.8, “Counter-Chemical, Biological, Radiological and Nuclear Operations” (pdf), 26 January 2007. (Update: Dick Destiny offers some commentary on AFDD 2-1.8, and provides some corrections.)

Army doctrine on the use of attack helicopters to locate and destroy enemy forces and to gather or confirm intelligence is presented in a new field manual. See “Attack Reconnaissance Helicopter Operations” (large pdf), Field Manual FM 3-04.126, February 16, 2007. The new manual notes that it has been reviewed for operations security considerations and approved for public release.

Selected CRS Reports

Analysts at the Congressional Research Service continue to churn out reports for Congress faster than they can reasonably be digested. Not all of them are of broad interest, nor do they consistently offer original content or significant analytical insight.

But as long as Congress refuses to make them available online to the general public, there seems to be value in our helping to do so.

Recent CRS products that are not already available in other online public collections such as OpenCRS and the State Department’s Foreign Press Center include the following.

“Is China a Threat to the U.S. Economy?,” updated January 23, 2007.

“China’s Trade with the United States and the World,” updated January 4, 2007.

“Yemen: Current Conditions and U.S. Relations,” updated January 4, 2007.

“State and Urban Area Homeland Security Plans and Exercises: Issues for the 110th Congress,” updated January 3, 2007.

“The Organization for Economic Cooperation and Development,” updated January 19, 2007.

“Environmental Activities of the U.S. Coast Guard,” updated January 16, 2007.

“The Emergency Planning and Community Right-to-Know Act (EPCRA): A Summary,” updated January 3, 2007.

“Countries of the World and International Organizations: Sources of Information,” updated January 8, 2007.

Declassification Board Weighs Intel Budget Disclosure

The Public Interest Declassification Board (PIDB), an advisory body whose members were appointed by the President and the Congress, held its eleventh meeting on February 24 to receive public input on potential improvements to national security classification and declassification policy. Much of the session was devoted to discussion of whether the annual intelligence budget total should be declassified.

Intelligence budget disclosure was first advocated by Congress more than thirty years ago. More recently, it was recommended by the 9/11 Commission as an indispensable first step toward eliminating counterproductive secrecy in the U.S. intelligence bureaucracy. Currently, there are at least three bills pending in the U.S. Senate that would require such disclosure. The step is opposed by the Bush Administration.

“There is no one who is better positioned than the PIDB to win favorable presidential reconsideration of the question of intelligence budget disclosure and to catalyze a final resolution of this perennial classification dispute,” I told the PIDB members (pdf). “I hope you will seize the opportunity.” My written presentation on that and other subjects is here.

“I am already on record in favor” of disclosure, said former Congressman David Skaggs (D-CO), who chaired the meeting, noting that he had supported legislation to that effect.

“I’ve been on both sides of the debate,” said Martin Faga, former director of the National Reconnaissance Office, who recalled that he had approved the declassification of the NRO’s existence in 1992.

The intelligence budget total probably “does not meet the criteria for classification,” admitted former Deputy DCI Adm. William Studeman and former Senate Intelligence Committee staffer Joan Vail Grimson, but they said it should remain classified anyway since its disclosure, they feared, could lead to further uncontrolled releases of more sensitive information.

But that kind of approach “undermines the integrity of the classification system,” warned Bill Leonard, director of the Information Security Oversight Office.

“As an intelligence professional, I can’t see a way that disclosure of the intelligence budget total could hurt me,” said former CIA analyst Bruce Berkowitz, who was also invited to address the Board.

“I would like to hear more,” said Archivist of the United States Allen Weinstein, who endorsed another FAS proposal to engage agency Inspectors General in oversight of classification and declassification.

The Board members were scheduled to meet later in the day with national security adviser Stephen J. Hadley.

The first annual report of the Public Interest Declassification Board is available here.

The problem of secret spending was examined by the Las Vegas Sun in the context of allegations that Nevada Governor Jim Gibbons took improper advantage of the secret “black budget” while serving in Congress to reward friends and supporters. See “Bush budget contains many secrets” by Lisa Mascaro, Las Vegas Sun, February 25.

Selected CRS Reports

Some recent reports of the Congressional Research Service that have not previously been made readily available in the public domain include the following (all pdf).

“Climate Change: Science and Policy Implications,” January 25, 2007.

“Foreign Science and Engineering Presence in U.S. Institutions and the Labor Force,” updated January 12, 2007.

“U.S. Military Dispositions: Fact Sheet,” updated January 30, 2007.

“Navy Ship Names: Background For Congress,” updated January 17, 2007.

“Latin America: Terrorism Issues,” updated January 22, 2007.

“U.S. National Science Foundation: An Overview,” updated January 24, 2007.

“War Powers Resolution: Presidential Compliance,” updated January 16, 2007.

“Laos: Background and U.S. Relations,” updated February 5, 2007.

“Kyrgyzstan’s Constitutional Crisis: Context and Implications for U.S. Interests,” updated January 5, 2007.

At the conclusion of a widely cited article on U.S. policy towards Iran in the latest issue of The New Yorker, Seymour Hersh referred to a November 2006 report by CRS “on what it depicted as the Administration’s blurring of the line between C.I.A. activities and strictly military ones.”

The referenced report is “Covert Action: Legislative Background and Possible Policy Questions,” November 2, 2006.

Divine Strake Experiment Canceled

The Defense Threat Reduction Agency announced today that it has canceled the controversial Divine Strake experiment.

A 700 tons chemical explosion at the Nevada Test Site was intended to provide data for calibration of nuclear and conventional weapons against underground targets. Local fear that the explosion would kick up and disperse radioactive material from the ground – as well concern about Divine Strake’s role in calibrating the use of low-yield nuclear weapons against underground targets – prompted members of Congress to raise questions about Divine Strake.

The Federation of American Scientists was the first to obtain and publish confirmation from DTRA that Divine Strake was the same experiment described in the FY2006 and FY2007 DTRA budget requests as intended to “improve the warfighter’s confidence in selecting the smallest proper nuclear yield necessary to destroy underground facilities while minimizing collateral damage.” DTRA public affairs officials subsequently denied Divine Strake had any connection to nuclear missions, but were later contradicted by senior DTRA officials saying that it was nuclear related.

Background: Divine Strake

Government Access to Phone Records, and More from CRS

The statutes that enable the government to gain legal access to telephone records, whether for law enforcement or intelligence purposes, are examined in a newly updated report (pdf) from the Congressional Research Service.

The report also discusses prohibitions on access to, or disclosure of, such records, along with exceptions to the prohibitions. See “Government Access to Phone Calling Activity and Related Records: Legal Authorities,” updated January 25, 2007.

Some other notable CRS products obtained by Secrecy News that are not readily available in the public domain include these (all pdf):

“Armenia, Azerbaijan, and Georgia: Security Issues and Implications for U.S. Interests,” updated February 1, 2007.

“Vienna Convention on Consular Relations: Overview of U.S. Implementation and International Court of Justice (ICJ) Interpretation of Consular Notification Requirements,” May 17, 2004.

“Pipeline Safety and Security: Federal Programs,” updated January 25, 2007.

“Russian Political, Economic, and Security Issues and U.S. Interests,” updated January 18, 2007.

“Terrorist Capabilities for Cyberattack: Overview and Policy Issues,” updated January 22, 2007.

Various Resources

In a new study (pdf), the Coalition of Journalists for Open Government says that federal agencies have made little progress in improving their Freedom of Information Act programs, despite a year-old executive order directing them to become more requester friendly.

The JASON defense science advisory panel released a slightly revised unclassified summary (pdf) of its classified study on nuclear weapon pit lifetimes which concluded that most nuclear weapons primaries have “credible minimum lifetimes in excess of 100 years as regards aging of plutonium.” See Pit Lifetime, January 11, 2007.

In a careful review of the Zapruder film of the assassination of President Kennedy, Max Holland and Johann Rush propose a new way of understanding what the film does and does not reveal. See “1963: 11 Seconds in Dallas.”

PBS Frontline has been running an exceptionally interesting series called “Newswar” on current conflicts between government and the press, with an episode this week that focused on government secrecy. A website associated with the series includes transcribed interviews with dozens of national security and journalistic luminaries, and with me.

Ruling in AIPAC Case Interprets Espionage Act Narrowly

In the unprecedented prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC), a federal court last year upheld the government’s controversial claim that the Espionage Act could be used to prosecute the unauthorized receipt and transmittal of classified information by private citizens who are not engaged in espionage.

But as the case proceeds, the court continues to interpret the Espionage Act in a restrictive manner that places an increasing burden of proof on the prosecution, and that could even make the case a source of embarrassment for the government by exposing sensitive “back channel” diplomatic practices.

In a decision last week (pdf), Judge T.S. Ellis, III, denied a defense motion asking the court to compel testimony from Israeli government officials.

But along the way, the court also elaborated its demanding view of the requirements that the prosecution must meet to win a conviction under the Espionage Act, and indicated what sorts of facts might tend to exculpate the defendants.

“To prove the alleged conspiracy to disclose [national defense information, or NDI] to one not authorized to receive it, the government must prove all of the following,” wrote Judge Ellis, at the beginning of a list of prosecutorial hurdles that reiterates and expands upon the requirements first spelled out in his August 2006 order denying a motion to dismiss the case.

Among other things, the government must prove that “defendants possessed all the culpable mental states that would be necessary for conviction under [the Espionage Act],” which include four distinct states of knowledge or belief (at page 9).

Briefly, prosecutors must show that the defendants knew the information involved was closely held and could harm the United States; that it could be used to the injury of the United States or to the advantage of a foreign nation; that the recipients of the information were not authorized to receive it; and that the defendants acted with knowledge that the disclosures were illegal and could harm national security.

But if the defense can show that U.S. government officials frequently disclosed confidential information to AIPAC for transmittal to the Israeli government, the court observed, that would mean the defendants could have plausibly believed such behavior was authorized.

If “the governments of the United States and Israel routinely used AIPAC as a diplomatic ‘back channel’ [to convey sensitive information]” that would be “potentially exculpatory” since it could “affect defendants’ perception of the propriety of any disclosures made by or to them.”

The nature of the relationship between the governments of the U.S. and Israel may also have a bearing on the defendants’ state of mind, the Judge wrote, in language that may foreshadow close scrutiny of U.S.-Israel relations at trial:

“The more specific the details of the alleged cooperation between the two governments, the more probative [i.e., legally significant] such cooperation becomes,” Judge Ellis wrote. (p. 14)

In another important observation, the judge wrote that “testimony that disclosures of alleged NDI were viewed by defendants, or their contacts in the diplomatic establishment, as beneficial to the United States’ interests is exculpatory.” (p. 13)

Similar reasoning would imply that if a news organization published classified information in the belief that doing so was beneficial to the United States, that would take it beyond the scope of the Espionage Act’s prohibitions on unauthorized disclosure of national defense information.

The trial of defendants Steven J. Rosen and Keith Weissman is scheduled to begin on or around June 4 in the Eastern District of Virginia.

A separate ruling (pdf) from Judge Ellis last week denied a defense request to suppress statements made by defendants to FBI agents on grounds that the agents used trickery or deception to elicit the statements.

The two rulings were first reported in the New York Sun on February 16.

New IC Directive on Intelligence Analysis

Intelligence analysis “must be objective and independent of political considerations,” according to a new “capstone” directive (pdf) issued by the Director of National Intelligence.

The directive establishes the policy framework for intelligence analysis and defines a set of methodological standards and expectations, with an emphasis on inter-agency collaboration and outreach.

“The IC will seldom have the requisite depth and breadth of expertise to provide all of the insights and detailed answers demanded by our customers. To satisfy their needs, the IC must tap outside expertise and build and expand relationships with non-intelligence government agencies, academic, business, non-governmental organizations (NGOs), and think tank communities, both domestically and internationally, while addressing the counterintelligence and security obligations that are inherent to such initiatives.”

See “Management, Integration, and Oversight of Intelligence Community Analysis,” Intelligence Community Directive (ICD) 200, January 8, 2007.

Also new is “Intelligence Community Update to DCID 6/11, ‘Controlled Access Program Oversight Committee’,” Intelligence Community Policy Memorandum (ICPM) 2006-700-10, January 12, 2007.