“The government routinely overclassifies information,” so the mere fact that something is classified is not sufficient to establish that its unauthorized disclosure is prohibited by law, according to a defense motion (pdf) that was filed last week in the case of former State Department contractor Stephen Kim.  Mr. Kim was accused under the Espionage Act of leaking classified information to a news reporter, reportedly concerning North Korth’s nuclear test program.

“There is no better evidence of this gross overclassification than this very case,” the January 31 defense motion said.  “Even though the news media has reported extensively on this case, including reporting on the name of the ‘foreign country’ it believes is at issue…, the prosecution claims that the name of that ‘foreign country’ is classified.”

“Because the system of classification is an imperfect one, the court cannot simply interpret [the espionage statutes] to provide adequate constitutional notice any time the matter at hand pertains to a government employee alleged to have leaked classified information,” the defense said in its motion to dismiss the charges against Mr. Kim.

Defense attorneys also argued that “leaking is widespread and has become an essential tool that is frequently employed by officials at every level of government.”  Yet prosecutions for leaking are comparatively rare, thereby resulting in “arbitrary and discriminatory enforcement.”  (See related coverage from Josh Gerstein and Marcy Wheeler.)

Perhaps the most interesting and original legal argument presented by the defense is that the use of the Espionage Act to punish unauthorized disclosures of classified information is an improper attempt to expand the definition of treason, whose scope is strictly limited by the Constitution.

The defense explained in a separate January 31 motion (pdf) that the framers of the Constitution, who were themselves “traitors” against the British, deliberately chose to limit the definition of political crimes against the nation to “levying war against [the United States], or… adhering to their Enemies, giving them Aid and Comfort.”  This definition of treason excluded other types of political actions against the government.  In particular, the defense argued, it meant that acts of speech against the government could not be punished as treason.

“Today we typically look to the First Amendment to protect the freedom of speech, but the Framers of the original Constitution expected the Treason Clause to do some heavy lifting on that front, particularly because the First Amendment… was not added to the Constitution until later.”

What is happening now, the defense said, is that “the government has taken conduct it alleges to have injured the state [namely leaking] and squeezed it into a successor statute [the Espionage Act] that punishes treason under a different name, but without providing Mr. Kim with the substantive and procedural guarantees that he is entitled to under the Constitution” in a case of treason, such as a requirement for the government to produce two witnesses to the alleged crime.

Mr. Kim is represented by Abbe D. Lowell and his colleagues at McDermott Will & Emery.  Government responses to the defense motions are due March 2.

Russian experts are persuaded that Iran’s space program is serving to advance development of intercontinental ballistic missiles that could be used against targets throughout the Middle East and Russia, according to a CIA review of open source reporting.

“Over the past year Moscow appears to have become more worried about the security implications of assisting Tehran with the further development of its space capability,” the November 2010 CIA report (pdf) said.

The CIA document was first reported by Bloomberg News (“Russian Scientists Worried Iran Uses Their Know-How for Missiles” by Roxana Tiron and Anthony Capaccio, February 3). A copy was obtained by Secrecy News. See “Russia: Security Concerns About Iran’s Space Program Growing,” CIA Open Source Works, November 16, 2010.

On February 7, Iranian officials displayed four new prototype satellites that they said would be launched in the near future.

Noteworthy new reports from the Congressional Research Service include the following (all pdf).

“Political Transition in Tunisia,” February 2, 2011.

“National Security Letters: Proposals in the 112th Congress,” February 1, 2011.

“Murder or Attempted Murder of a Member of Congress and Other Federal Officials and Employees: Implications in Federal Criminal Law and Procedure of Events in Tucson,” January 25, 2011.

“The U.S. Foreign-Born Population: Trends and Selected Characteristics,” January 18, 2011.

In order to help determine the origins of microbial threats in terrorist incidents or epidemics, it would be useful to have a deep archive of various strains of lethal bacteria, the JASON defense advisory panel told the National Counterproliferation Center in a newly released 2009 report (pdf).

Because of the natural variation in the microbes of interest, “we believe that a ‘Library of Congress’ for microbial pathogens is needed,” the JASONs said.

“This library would consist of strains collected worldwide by methods that preserve sample properties, and capture all relevant data (e.g. geolocation, local environmental conditions). It should include laboratory isolates, natural isolates, and DNA sequence data.”

Actually, it seems that the nucleus of such a library already exists.

“We were impressed with the efforts of the National Bioforensic Reference Collection along these lines.  The NBRC was initiated in October 2005 to receive and store reference materials for forensic analyses.  It currently has more than 30,000 samples of bacteria, viruses, and toxins, from both select and non-select agents, and is authorized to handle classified materials,” the JASONs said.

The JASON report assesses the current state of “microbial forensics,” which refers to the characterization of microbe samples in terrorism or law enforcement cases to establish their origins.

For reasons explained in the report, the forensic task is not a simple one.  In fact, “it is never possible to definitively link a sample to an attack based on genetic evidence alone.”

A copy of the JASON report was obtained by the Federation of American Scientists under the Freedom of Information Act.  See “Microbial Forensics,” JASON report JSR-08-512, May 2009.

There are seventeen so-called Neglected Tropical Diseases (NTDs), such as Chagas disease, dengue fever and leprosy, that are found in some 149 countries, a new report (pdf) from the Congressional Research Service explains.

“Estimates indicate that some 2 billion people are at risk of contracting an NTD, of whom more than 1 billion people are afflicted with one or more. Roughly 534,000 people are believed to be killed by an NTD annually. Although these diseases are concentrated among the world’s poor, population shifts and climate change increase the vulnerability of the United States to some of these diseases, particularly Chagas disease and dengue,” the CRS report said.

Efforts to combat the diseases, and the challenges facing those efforts, are described by the CRS in “Neglected Tropical Diseases: Background, Responses, and Issues for Congress,” January 21, 2011.

A January 31 Secrecy News item on “Diane Roark and the Drama of Intelligence Oversight” focused on the personal friction and hostility that are sometimes generated by the intelligence oversight process.  Unfortunately, what I wrote did an injustice to Ms. Roark, the former House Intelligence Committee staffer, and to Thomas Drake, the former National Security Agency official, as well as to the larger issues involved.

I should have made it clear that I do not endorse the criticism of Ms. Roark that was expressed by Barbara McNamara, another NSA official.  On the contrary, under prevailing circumstances the “intrusiveness” that Ms. Roark was accused of is likely to be a virtue, not a defect.  It is the NSA, not Ms. Roark, that stands accused of mismanaging billions of dollars and operating in violation of the Foreign Intelligence Surveillance Act.

Ms. Roark together with Thomas Drake and others did exactly what they should have done by bringing their concerns about NSA mismanagement to the attention of the DoD Inspector General, among other things.  Significantly, they had nothing to gain for themselves.  Their actions did not embody any motive of personal interest or self-aggrandizement, but something more like the opposite.  They were acting in the public interest, as they understood it.  That they (and especially Mr. Drake, who is now under indictment) are suffering for it is a worrisome sign of a broken system.

I also should not have repeated the insinuation in the Drake indictment that he and Ms. Roark had an intimate relationship.  This would be irrelevant in any case, but in this case it is also false.

My apologies to Ms. Roark and Mr. Drake.

In a focused effort to combat overclassification, President Obama has ordered executive branch agencies to conduct a “Fundamental Classification Guidance Review.”  The two year Review process, mandated in the December 2009 executive order 13526 (sect. 1.9) is intended to identify and eliminate obsolete classification requirements in current agency policies.

Last week, the Information Security Oversight Office (ISOO) told selected senior agency officials that the Review is more than a formality, and that they must make a serious commitment to its implementation.

“The scope of this review needs to be systematic, comprehensive, and conducted with thoughtful scrutiny involving detailed data analysis,” wrote ISOO director William J. Bosanko in a memorandum (pdf) dated January 27.

Merely rubber-stamping the status quo is not going to be enough, he explained to the senior agency officials.

“Please be advised that a review conducted only by the pertinent original classification authority is not sufficient.”  Instead, “the broadest possible range of perspectives” shall be brought to bear on reviewing agency classification guidance.

Moreover, the resulting recommendations for eliminating obsolete classification guidance should be clear and actionable.

“Agencies should be specific in their determinations as to what no longer requires protection,” Mr. Bosanko wrote.  “An example would be a specific part of a weapon system versus the weapon system as a whole. The user of the guide must be able to identify the specific element of information that does or does not require protection.”

Interim status reports on agency progress are to be provided every six months, Mr. Bosanko advised.

The present Fundamental Classification Guidance Review is loosely modeled on the Fundamental Classification Policy Review that was performed by the Department of Energy in the mid-1990s.  That Review led to the declassification by DOE of numerous areas of classified information that had ceased to be sensitive (as well as increased protection for a smaller number of other areas deemed highly sensitive).

Until now, a similar approach has never been tried on a government-wide basis.  If diligently implemented, it holds the promise of a measurable reduction in the scope of national security secrecy.  On the other hand, if it does not produce meaningful results, then the prospects for classification reform will become vanishingly small.

What is the rationale for classifying information?  The RAND Corporation attempted to articulate an answer to that question and then to apply it in practice to a current national security issue.

In a new study prepared for the Pentagon’s Joint Staff, RAND researchers “developed a general framework for judging classification decisions” that, they suggested, might have broad use.  Their methodology depends on “the systematic application of common sense.”  If so, then it is a major breakthrough in classification policy, where common sense is often scarce.

“Apart from situations in which the security value of classification is obvious — e.g. protecting the identity of a clandestine source — how should decisions be made about what pieces of data should be classified?  Since classifying information creates costs, it should be approached as an explicit cost-benefit comparison (understood to include factors that cannot be monetized).”

“We defined four criteria that must be met even before a classification argument can even be considered: (1) classification must reduce information flow to the adversary, (2) the data obtained must change what the adversary knows, (3) the knowledge must affect the adversary’s decisions, and (4) the decisions must damage the United States in some way.”

“Only if the failure to classify a piece of information means that an adversary is more likely to get it and if having it changes the adversary’s estimate of a key piece of knowledge and if the change in knowledge alters a decision (or the probability of a decision) and if this decision is adverse to the United States would any case exist for classifying it — and then only if the costs of classification, broadly understood, are not greater.  If classification yields no measurable benefit, there is no justification for it even if the costs of classification are zero, which they never are,” the RAND study said.

More generally, “The public debate about classification policy does raise the question of whether the degree of damage [associated with release of a particular piece of information] is being estimated well. Put simply, just because a specific piece of information or a data set is useful in some way and relates to areas of security concern, it does not necessarily follow that the same information is useful to an adversary. Indeed, knowing that potential adversaries are interested in the information is no proof that their satisfaction would damage U.S. national security. If it is not damaging, restricting access to it will not, in fact, produce the expected security benefit.”

The RAND authors proceeded to apply their construct to the specific problem that the Joint Staff asked them to address, namely whether or not to classify the DoD’s “Global Force Management Data Initiative” (GFM DI), which is a set of protocols for information sharing.

“Having laid out a systematic process [for evaluating the question], we… found no good reason to classify GFM DI as a whole,” the study concluded.  (Some related subsets of data may require protection, the authors said.)  See “What Should Be Classified?” by Martin C. Libicki, et al, RAND National Defense Research Institute, 2010.

The RAND study was conducted independently of the the Obama Administration’s pending Fundamental Classification Guidance Review, but it exemplifies much of what the Review is supposed to achieve:  namely, a searching inquiry into the validity of specific classification decisions in light of their actual costs and benefits.

Key characteristics of seventeen leading Iranian newspapers are described in a wall poster (large pdf) prepared last year by the DNI Open Source Center.

With an estimated circulation of 350,000-450,000, “Hamshahri appears to be the most widely read newspaper in Iran thanks to its voluminous classified advertisement supplement, attracting individuals seeking to buy a car, house or major goods and services. Others buy it for its football pages.”

A copy of the poster was obtained by Secrecy News.  See “Ownership, Affiliation, and Influence of Major Iranian Newspapers,” Open Source Center, March 2010.

Last Wednesday, Rep. Ron Paul (R-TX) read brief excerpts from a classified U.S. State Department cable on the House floor. The cable was written in 1990 by U.S. Ambassador to Iraq April Glaspie and described her conversation with Iraqi leader Saddam Hussein shortly prior to Iraq’s invasion of Kuwait. It was released January 1 by WikiLeaks.

Since the cable specified that its “entire text” is classified secret, this means that by reading a passage or two from the document, Rep. Paul was technically publicizing classified information and introducing it into the Congressional Record.

This action was not nearly comparable in significance or audacity to Sen. Mike Gravel reading the Pentagon Papers into the public record in 1971. It would hardly be noteworthy at all except for the contrast it presents with current congressional guidance to avoid the material released by WikiLeaks altogether. The Senate Office of Security, for example, has directed that Senate employees should not even visit the WikiLeaks website, much less circulate its contents.

Like other members of the House of Representatives, Rep. Paul has taken an oath (under House Rule XXIII, clause 13) that “I will not disclose any classified information received in the course of my service with the House of Representatives, except as authorized by the House of Representatives or in accordance with its Rules.”

Presumably, Rep. Paul could say that he did not receive the classified cable “in the course of my service with the House of Representatives” and that it is therefore outside the scope of his oath.

“The secrecy of the [Glaspie cable] was designed to hide the truth from the American people and keep our government from being embarrassed,” Rep. Paul said, assigning malicious intent to the classification of the document.

But since many unembarrassing and uninformative documents are also classified, a better explanation might be that the application of classification controls today is indiscriminately broad, and that classification status is not a reliable indicator of sensitivity.

Judging from appearances, the conduct of congressional oversight of intelligence is usually professional, placid and rather dull. Just beneath the surface, however, the process is sometimes filled with tension, conflict and human foible.

In her day, Diane S. Roark, a Republican staffer on the House Intelligence Committee from 1985 to 2003, elicited an impressive amount of hostility from intelligence agencies. Last year, her name surfaced again in connection with the pending prosecution of former National Security Agency official Thomas Drake, who was charged with unlawful retention of national defense information.

“Regarding Congressional oversight, Members of Congress were supportive” of intelligence, said former NSA deputy director Barbara McNamara in a December 15, 2003 statement (pdf) to the 9/11 Commission. “But while some staffers were good, some staffers were overly intrusive and vindictive.”

Diane Roark fell in the latter category, as far as Ms. McNamara was concerned. “Ms. Rourke [sic] would form alliances with individuals in the IC and have them serve as her spies. These spies were easy to spot — they were people who really believed in their own programs as being the best and needing support from Congress,” Ms. McNamara said.

One of those purported alliances, it later turned out, was with Thomas Drake. According to the April 2010 indictment of Mr. Drake, he “had a self-described ‘close, emotional friendship’ and ‘different and special’ relationship with Person A [i.e., Ms. Roark] that included the unauthorized disclosure of unclassified and classified information to [Ms. Roark] while [Ms. Roark] worked as a congressional staffer and after [Ms. Roark’s] retirement in May 2002.”

Their relationship was based on shared values, her attorney told the Washington Post. “He was very concerned about waste and mismanagement and so was she.” (“Act of honor, or betrayal?” by Ellen Nakashima, Washington Post, July 14, 2010).

Ms. Roark’s concerns and her actions won her a visit from the FBI in July 2007. FBI agents seized “emails and other items” from her residence, according to a recent status report (pdf) in the Drake prosecution. She is not charged with any crime.

House Intelligence Committee chairman (and later DCIA) Porter J. Goss praised Ms. Roark’s career performance in a March 20, 2002 floor statement.

“Diane is known as a very dedicated, tough-minded program monitor who digs into the issues and forces agencies to see and understand what they sometimes miss themselves. She is also known as a very knowledgeable taskmaster, and her arrival at an agency is often anticipated with apprehension,” Mr. Goss said.

“I think that this is the type of oversight capability that the American people are entitled to and should demand. I cannot think of any greater tribute for Diane than knowing that agency leaders throughout the community recognize that her instincts and assessments are sound,” he said.

But from the perspective of Ms. McNamara of the NSA, “There is a fine line between what is professional disagreement and what is personal animosity.”

Some recently published resources on congressional oversight of intelligence include the following.

“Intelligence Issues for Congress” (pdf), Congressional Research Service, updated January 20, 2011.

“Legal Perspectives on Congressional Notification” (pdf), hearing before the House Permanent Select Committee on Intelligence, October 22, 2009 (published December 2010).

“Congress’s Right to Counsel in Intelligence Oversight” by Kathleen Clark, University of Illinois Law Review (forthcoming).

The Congressional Research Service is not equipped to provide up-to-the-minute coverage of current news events, like the continuing upheaval in Egypt.  But CRS does provide deeply researched background on factual matters including U.S. economic and military aid to Egypt, as well as a detailed account of many aspects of U.S.-Egypt political relations. See the newly updated report “Egypt: Background and U.S. Relations,” January 28, 2011.

On events in Tunisia, see “Tunisia: Recent Developments and Policy Issues,” January 18, 2011.