SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 121
November 29, 2006

Secrecy News Blog: http://www.fas.org/blog/secrecy/

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BURDEN OF PROOF IN AIPAC CASE IS "NOT INSUBSTANTIAL," COURT SAYS

A federal court this month denied a motion that would have eased the government's prosecution of two former officials of the American Israel Public Affairs Committee who are charged with mishandling classified information.

Prosecutors had argued that they should not be obliged to prove that the defendants "actually knew the disclosure of the information was potentially harmful to the United States."

But in a ruling from the bench on November 16, Judge T.S. Ellis III denied the motion and said they must prove the defendants had such knowledge.

The transcript of the November 16 hearing was placed in the court docket yesterday and a copy was obtained by Secrecy News.

The latest ruling followed a momentous August 14 decision that non-government personnel who are not accused of espionage could be tried under the Espionage Act for receipt and transmission of classified information. In that decision, Judge Ellis denied a defense motion to dismiss the case altogether on constitutional and other grounds.

But he also imposed significant requirements on the prosecution to show that the defendants knew they were obtaining closely held national defense information; knew that it was unlawful to disclose that information; knew that the recipients in the press and a foreign embassy were not authorized to receive it; and that the defendants knew that disclosure of the information would be potentially damaging to the United States.

In an August 18 motion for clarification, prosecutors objected to the last requirement.

"Case law does not support the notion that 'willful' intent requires the government to prove that a defendant actually knew the information was potentially harmful to the United States," the government argued. See a copy of the motion for clarification here:

But it does now, Judge Ellis said.

"To the extent that the motion seeks clarification that the Government need not prove at all that the defendants knew that their disclosure was potentially harmful to the United States, that's not clarification, that's reconsideration. So, I will deny it." (Transcript, page 10).

As a result of the ruling, the prosecution faces a considerable, possibly insurmountable obstacle.

"You prevailed in significant part [against the defendants' earlier motion to dismiss]," Judge Ellis told prosecutors on November 16. But "in prevailing, you have a burden that is not insubstantial."

Likewise, "in losing [the motion to dismiss, defense attorneys] Mr. Nassikas and Mr. Lowell see some benefits to them," Judge Ellis observed.

Given the difficulty of meeting the Court's requirements, the fear that this unprecedented case would have a chilling effect on reporters and public interest advocates who depend upon unauthorized access to classified information has been muted somewhat.

Today, it might be noted, the New York Times published the full text of a classified November 8 memorandum from National Security Advisor Stephen Hadley regarding Iraq.

A trial date in the AIPAC case had originally been set for August 2006. But due to the complexity of the case the date has been repeatedly deferred. Judge Ellis said he would reserve May and June 2007 for a possible trial.

He also said that a leak investigation into who disclosed pre-indictment reports of the case to CBS News in August 2004 is "ongoing."

NRC IS NOT SECRETIVE ENOUGH, SAYS NBC NEWS

Thousands of sensitive Nuclear Regulatory Commission documents regarding nuclear power plant security and vulnerability are available in public document rooms across the country, NBC News reported on November 27 in a rather breathless "hidden camera" investigation that illustrates the difficulty that some people have in thinking clearly about secrecy and security.

"Many of the documents we were able to access were among the thousands of files the NRC pulled from its Web site after 9/11, deemed too sensitive to be available to the public. But that same effort to clean out sensitive information, it seems, was never made with NRC's document collections in public libraries across the country," reported Lisa Myers of NBC.

"What this means is that we've given the terrorists an easy map in order to find out about our nuclear facilities," former New Jersey Governor and 9/11 Commission Chair Thomas Kean told NBC. "It's the worst possible thing we could be doing."

In fact, however, it is simple to think of worse possible things, beginning with publicizing the supposed existence of "an easy map" for terrorists.

"It is baffling to me that the NRC would consider this information so sensitive that it should be pulled from its on-line database, yet apparently the information was considered safe enough to be left in more than 80 public libraries scattered throughout the nation," wrote Rep. Bart Gordon (D-TN) of the House Science Committee on October 27.

But the distinction should not be hard to understand: The local public document rooms serve the communities that are most directly affected by nuclear plant safety and security issues. In contrast, an on-line database is globally accessible to anyone with an internet connection. It is not surprising that this elementary difference would be reflected in official disclosure policy.

"The NRC is aware that a limited amount of [sensitive] information continues to exist in the public domain," according to an official statement from the Nuclear Regulatory Commission responding to the NBC News report.

"However, NRC believes that the usefulness of this information is minimal given its age and subsequent changes to and improvements in security programs and physical modifications that have been made to nuclear facilities since Sept. 11."

"The agency decided not to attempt to retrieve or restrict access to this information and instead has focused its actions on more recent and relevant information available in public electronic systems," the NRC said.

That's not good enough, fumed David Lochbaum, a nuclear safety engineer with the Union of Concerned Scientists, who echoed the views of Rep. Gordon.

"I fail to understand why I cannot obtain documents from the NRC's [main] Public Document Room that I can access from ... any of the dozens of other local public document rooms across the nation. This profound inconsistency tells me loud and clear that NRC is wrong, either in denying access to the documents in the Public Document Room or in not restricting access to the documents elsewhere."

If NRC had unlimited resources and no other responsibilities, then absolute consistency of the kind advocated by the Union of Concerned Scientists might be a virtue. But that is not the case.

In Secrecy News' view, all of these individuals and NBC News have misconstrued the situation. The NRC has acted appropriately under the circumstances.

The fact is that unclassified NRC reports on power plant security and vulnerability -- some of them quite graphic and detailed -- have been deposited in public reading rooms for decades. Their purpose is to address community concerns about safety and security at local nuclear power plants.

There has never been a single case in which the availability of such reports caused or contributed to a public health, safety or security hazard.

Meanwhile, we are living in an era of unprecedented growth in official secrecy. Unclassified government records on a wide variety of matters affecting public health and national policy are increasingly marked "for official use only" and off-limits to citizens and taxpayers.

Scolding government bureaucracies for not being secretive enough undermines efforts to achieve the increased openness that the 9/11 Commission said was needed to prevent future terrorist attacks.

More fundamentally, there are an infinite number of ways to cause destruction and wreak havoc. Using the media to ratchet up public fear over the nightmare scenario du jour is the work of terrorists. It would be a pity to help them.

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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