Court Narrows Scope of Appeal in AIPAC Case

A federal appeals court handling the case of two former employees of the American Israel Public Affairs Committee (AIPAC) who are charged with unlawful handling of classified information last week granted a defense motion to limit the scope of a pending prosecution appeal.

In March, a lower court had issued a sealed 278-page court order identifying what classified information may be disclosed, summarized or withheld at the forthcoming trial of the AIPAC defendants. The government appealed the order in advance of the trial, as it is entitled to do. But at the same time it also attempted to appeal several other prior court orders that it regarded as unfavorable including two 2006 orders that defined the government’s burden of proof and another court opinion that limited the use of secret, non-public evidence.

Defense attorneys objected to the reopening of prior court rulings, and the appeals court concurred with them in a June 20 decision. A government brief on the surviving portion of the appeal will be due on July 25.

Selected case files from the lower court and the appeals court proceedings can be found here.

The AIPAC case is a subject of broad interest because it is the first time that Americans who are engaged in protected First Amendment activities have been prosecuted for the unauthorized receipt and transmission of classified information, which is a relatively common transaction among national security reporters and advocacy organizations. (Secrecy News has frequently sought access to information on topics or programs that we knew to be classified, and has occasionally gained such access.)

“This is not a typical espionage case,” defense attorneys told the appeals court in an April 29 motion (pdf). “Everyone who spoke with [defendants Steven Rosen and Keith Weissman] did so voluntarily, knew that Rosen and Weissman were not government officials, and knew that they did not have security clearances. Rosen and Weissman did not receive money or material goods from foreign governments or others in exchange for information; they did not speak in code; they did not conduct their meetings in secret; they are not charged with serving as agents of a foreign government, let alone with being spies; they did not receive or pass on classified documents; they did not pay any bribes to or threaten government officials.”

Prosecutors put it differently (pdf): “This is an Espionage Act prosecution involving two defendants who conspired to and did obtain classified information from their government sources and then passed that information to a foreign government, members of the news media, and others not entitled to receive it.”

But if it was a conspiracy, the government has handled it in a peculiar way, the defense said in its April 29 motion:

“Highlighting the curious underpinnings of this prosecution, the high-level government officials with whom Rosen and Weissman regularly met and who, according to the Indictment, illegally disclosed classified NDI [national defense information], have not — with but one exception — been charged criminally. Indeed, one of the disclosing officials has since received, not charges or reprimands, but a series of promotions to one of the highest, most sensitive positions in the government.”

The “one exception” is former Pentagon official Lawrence A. Franklin, who has been sentenced to a 12 year prison term.

The highly promoted official is David Satterfield, who has been elevated in position three times since the AIPAC case became public in August 2004 — first to Principal Deputy in State’s Mideast Bureau, then to Deputy Chief of Mission with the rank of Ambassador in Iraq — among the most sensitive diplomatic assignments in the world– and most recently to Principal Adviser to the Secretary of State on Iraq.

The defense attorneys’ argument is not that Mr. Satterfield did something wrong. Rather, they contend, the government’s response to the facts of the case has been erratic, inconsistent and unpredictable. Which is to say, it has been unjust.

Science and the 2008 Election

The Federation of American Scientists and other science-related organizations are urging their members and others to ask candidates about science and technology policy in the 2008 congressional elections.

From energy production to climate change and innovation, participants are encouraged to question incumbents and challengers about their agenda for meeting pressing science and technology challenges in fields such as energy production, climate change, science education and health science.

The non-partisan initiative, which does not endorse or oppose individual candidates, is called Innovation 2008.

DHS Invites Public Comment on Infrastructure Protection

In a noteworthy contrast with the secrecy that prevails in much of government and often within its own ranks, the Department of Homeland Security (DHS) is soliciting public comment on revisions to the National Infrastructure Protection Plan (NIPP), which is the framework for defending essential infrastructure, ranging from agriculture to transportation, against attack or natural disaster.

The request for comment places DHS in the rather unfamiliar posture — for a national security agency — of actively seeking to engage public interest and to invite public feedback on a matter of broad public policy.

“We’re hoping to get inputs from across the country,” said Larry L. May of the DHS NIPP Program Management Office in an interview today, “and from everyone concerned with critical infrastructure protection.”

Some of the NIPP policies that are under review are trivial, such as changes in terminology. But others are profound, such as the relative emphasis in the Plan on “protection rather than resiliency.” Where “protection” seeks to anticipate, deter and defend against particular threats that are intrinsically uncertain, “resilience” focuses on capabilities needed for rapid response and recovery from a broad range of hazards. They imply vastly different strategies, including public information disclosure strategies.

Are there significant numbers of Americans who care enough about such issues to express their views to DHS? Apparently so.

Mr. May said that the last time DHS conducted a review of the NIPP in 2006, some 10,000 comments were submitted.

Why does DHS care what the public thinks? Basically, Mr. May said, “all of us are in this together, if you will.”

Additional information on the NIPP, including the most recent 2006 iteration, may be found here.

Ask your Congressman About Science

CapitolThe Federation of American Scientists has joined 16 prominent scientific and engineering groups to ask all Congressional candidates seven questions on the science and technology policies that affect all of our lives.

The November election will be a critical moment for science and technology policy in the United States. Voters must know where the candidates stand on issues such as climate change, the environment, and soaring energy prices.

Innovation 2008 is a voter education initiative from Scientists and Engineers for America (SEA) to make science and technology a prominent part of the 2008 elections. Ask your candidates today!

For more information please visit:

National Biodefense Science Board Meeting

On June 18, 2008 the National Biodefense Science Board held their second meeting. The NBSB was created under the 2006 Pandemic and All-Hazards Preparedness Act and was established to provide expert advice and guidance to the Secretary of the U.S. Department of Health and Human Services (HHS) on scientific, technical, and other matters of special interest to HHS regarding activities to prevent, prepare for, and respond to adverse health effects of public health emergencies resulting from chemical, biological, nuclear, and radiological (CBRN) events, whether naturally occurring, accidental, or deliberate. During the inaugural meeting of the NBSB on Dec 17-18, 2007 members were sworn in and working groups were formed to consider the issues members felt were important.

The meeting began with a presentation from Robin Robinson, the newly named the Director of the Biomedical Advanced Research and Development Authority (BARDA), on “Old & New Perspectives at BARDA”. Whereas in the past initiatives for CBRN threats and Pandemic Flu were independent projects within BARDA, and BioShield was used for high risk acquisition tasks, these have all been integrated under the new BARDA strategy. During both this and a later presentation, Robinson described BARDA’s interest in the possibilities of personal preparedness. He described the progress made on small medical kits (MedKits) containing doxycline to treat anthrax that could be stored by individuals in their homes in case of an emergency. He also discussed the plans for influenza-focused antiviral MedKits. On what became the hot topic of the day, Robinson solicited input from the board on the issues surrounding home stockpiling, whether it is safe, effective, and worthwhile. He also asked for input on what should be the  right balance of government and personal strategies for preparedness.

Later in the day Robinson continued the discussion of personal preparedness and invited comments from Richard Besser of the CDC and Boris Lushniak of the FDA. Besser and Lushniak discussed public safety issues with personal stockpiling as well as some of the underlying problems with antibiotic resistance, drug expiration, product labeling and other regulatory issues.

In their December meeting, the NBSB had expressed an interest in biosurveillance. To address this, Capt. Daniel Sosin of the CDC briefed the board on the draft National Biosurveillance Strategic Plan. The NBSB has also indicated a concern for vulnerable populations in the event of pandemic of other major public health emergency, and therefore invited Susan Cooper from the Tennessee Department of Health to come and talk about this issue. Cooper gave an overview of the Association of State and Territorial Health Officials (ASTHO) Guidance document on “At-Risk Populations and Pandemic Influenza: Planning Guidelines for State, Territorial, and Local Health Departments”.

The NBSB also heard from C. Norman Coleman from the Radiation Research Program at HHS and Richard J. Hatchett from the Radiation Countermeasures Research and Preparedness program at NIAID. Coleman presented some of the strategies within the Radiation Management System and Hatchett discussed providing support services for radiation countermeasures product development.

Amy Patterson, executive director of the National Science Advisory Board for Biosecurity (NSABB) provided an overview of NSABB efforts to the NBSB. The NSABB has a similar mandate as the NBSB, and has been working since 2005 on issues of dual-use research of concern. Patterson focused on the NSABB’s recent recommendations on synthetic genomics and their draft oversight framework for dual-use research.

Throughout the day the Chairs of the working groups which were formed in December (Pandemic Influenza, U.S. Government Medical Countermeasures Processes for CBRN Agents, Markets and Sustainability, and Disaster Medicine) gave progress reports. In addition, a new subcommittee on Disaster Mental Health was introduced.

Finally, the NBSB discussed their recommendations and future activities. The members expressed interest in looking more carefully at the issue of personal preparedness. To this end it was decided that a working group be formed to deal specifically with the issue. It was also decided that no formal recommendations be made to Secretary Leavitt at this time, however, they would ask the Secretary to review the comments made by individual members on the topics of personal preparedness and home stockpiling during the meeting.

The next NBSB meeting will be held in November 2008.

Cost of Secrecy System Reaches Record High

The cost of implementing the national security classification system in government and industry reached an all-time high of $9.91 billion last year, according to the latest annual report (pdf) from the Information Security Oversight Office (ISOO).

The 2007 classification cost figure, which includes physical security, computer security and other aspects of classified information security, was a 4.6 percent increase over the year before and is the highest amount ever reported by the ISOO.

Is that too much? Not enough? The right amount? The new report doesn’t venture an opinion. Instead, it suggests that “the annual rate of growth for total security costs is declining.” That is not strictly true, since the rate of growth actually increased from 2006 to 2007, though it is now lower than it was in the immediate post-2001 period.

The ISOO annual report each year presents a unique snapshot of classification and declassification activity throughout the executive branch, though the data provided are often of uncertain significance and are cited with exaggerated precision.

The number of new secrets (“original classification decisions”) increased by 1% in 2007 to 233,639, ISOO reported. Meanwhile, “derivative” classification decisions, referring to the restatement of previously classified information in a new form or a new document, increased sharply by 12.5 percent for a combined total of 23,102,257 classification actions (original and derivative) in 2007. Again, no judgment on the quality or propriety of these classifications is offered.

Of 59.7 million pages reviewed for declassification last year, 37.2 million pages were declassified government-wide, a decrease both in the number reviewed and the number declassified but an increase in the rate of declassification. (At the Central Intelligence Agency, the situation was reversed: There was a 138 percent increase in the number of pages reviewed and a slight increase in the number declassified, but “a significant decrease” in the proportion of reviewed pages that were declassified.)

The Department of Transportation reviewed 380,000 pages but declassified none of them because they all had to be referred to other agencies for further processing. The President’s Foreign Intelligence Advisory Board (recently renamed the President’s Intelligence Advisory Board) reviewed 130 pages and declassified 40 of them.

ISOO reported uneven compliance with basic classification system rules and regulations at several agencies.

“Disappointingly, we continued to find deficiencies at multiple agencies relating to basic requirements concerning implementing regulations, security education and training, self-inspections, classification, and document markings,” the report stated.

One interesting data point that does not appear in the report is the number of classification challenges filed by authorized holders of particular information who believe that it is improperly classified. (Section 1.8 of Executive Order 12958, as amended, authorizes and encourages such classification challenges.)

In response to an inquiry from Secrecy News, ISOO indicated that there were 275 classification challenges filed by cleared personnel in FY 2007. The number of challenges that were actually accepted or approved by the originating agencies was not available.

The “2007 Report to the President” from the Information Security Oversight Office, which is the first issued by the new ISOO director William J. Bosanko, was transmitted to the White House on May 30 and made public today.

The new report makes no mention of the Office of the Vice President (OVP) and its continuing refusal to cooperate with ISOO’s reporting requirements on classification and declassification activity. That refusal, highlighted by a complaint filed by the Federation of American Scientists in 2006, led to a confrontation between the OVP and ISOO’s former director J. William Leonard last year, and the issue remains technically unresolved.

JASON on Wind Farms and Radar

Wind farms that use spinning blades and turbines to generate electricity have the undesirable side effect of disrupting the operation of radar systems. The JASON defense science advisory group was asked to consider the problem and to propose solutions.

“Wind farms interfere with the radar tracking of airplanes and weather. The velocity of the blade tips can reach 170 mph, causing significant Doppler clutter. This creates problems and issues for several stake holders, including DHS, DOD, FAA and NOAA,” the JASONs said in a report (pdf) to the Department of Homeland Security earlier this year.

“Examples of issues include: a wind farm located close to a border might create a dead zone for detecting intruding aircraft; current weather radar software could misinterpret the high apparent shear between blade tips as a tornado; current air traffic control software could temporarily lose the tracks of aircraft flying over wind farms.”

To address the problem Defense Department officials proposed a strategy of “non-technical mitigation,” by which they mean simply eliminating wind farms that interfere with DoD assets.

But the JASONs suggested several alternative approaches that in many cases would permit continued operation of wind farms in proximity to radar installations.

See “Wind Farms and Radar,” JASON, January 2008.

USAF Report: “Most” Nuclear Weapon Sites In Europe Do Not Meet US Security Requirements

Members of the 704 Munition Support Squadron at Ghedi Torre in Italy are trained to service a B-61 nuclear bomb inside a Munitions Maintenance Truck. Security at “most” nuclear bases in Europe does not meet DOD safety requirements, a newly declassified U.S. Air Force review has found. Withdrawal from some is rumored. Image: USAF

By Hans M. Kristensen  [article updated June 26 following this report]

An internal U.S. Air Force investigation has determined that “most sites” currently used for deploying nuclear weapons in Europe do not meet Department of Defense security requirements.

A summary of the investigation report was released by the Pentagon in February 2008 but omitted the details. Now a partially declassified version of the full report, recently obtained by the Federation of American Scientists, reveals a much bigger nuclear security problem in Europe than previously known.

As a result of these security problems, according to other sources, the U.S. plans to withdraw its nuclear custodial unit from at least one base and consolidate the remaining nuclear mission in Europe at fewer bases. Continue reading

Promoting Mutual Security and Development through Bioscience Cooperation

Yesterday the CUBRC Center for International Science and Technology Advancement held a symposium entitled “Promoting Mutual Security and Development through Bioscience Cooperation”. The meeting focused on ways to promote cooperation and networking across organizations to create a more prosperous and secure world.

Dr. Leonard Marcus of the Department of Health Policy and Management at Harvard University began the day by discussing the qualities of leaders that successfully link disparate groups and organizations.His remarks were especially relevant considering the diverse background and expertise of individuals and organizations involved in cooperative bioscience projects.

Continue reading

US – Russia 123 Agreement on the Hill

On Thursday, June 12 the House Foreign Relations Committee met for over three hours and heard testimony from members of the Committee, a representative of the Bush administration, and expert witnesses regarding the pros and cons of supporting the Agreement Between the United States and Russia for Cooperation in the Field of Peaceful Uses of Nuclear Energy (Agreement) that President Bush submitted to Congress. As discussed in an earlier blog, the Agreement will have to sit before the Congress for 90 continuous days, and will pass unless Congress enacts a joint resolution of disapproval. Such legislation, H.J.Res 85, has already been submitted by Congressman Edward J. Markey (D – MA), a staunch opponent to nuclear power and thus to civilian nuclear cooperation agreements. The mood of those legislators at the hearing was generally one of skepticism, as members of Congress searched for reasons to support the Agreement. Continue reading