The Commonwealth of the Bahamas announced this week that it has ratified the Comprehensive Nuclear Test Ban Treaty, according to a news release from the CTBT Organization in Vienna. The Treaty prohibits all nuclear explosions.

The ratification by the Bahamas brings the total number of Treaty ratifications to 141. But the Treaty cannot take effect until it is ratified by ten other states with nuclear programs, including China, North Korea, India, Pakistan, Israel, Iran and the United States.

For related background, see “Nuclear Weapons: Comprehensive Test Ban Treaty” (pdf) from the Congressional Research Service, updated October 29, 2007.

Classification markings will be removed from classified documents that are admitted into evidence in the upcoming trial of two former officials of the American Israel Public Affairs Committee (AIPAC), a court ruled earlier this month. The former AIPAC officials, Steven J. Rosen and Keith Weissman, are accused of unauthorized receipt and disclosure of classified information.

“To see this onslaught of documents marked Secret, Top Secret, NOFORN — it creates an atmosphere that is just unfair,” said Judge T.S. Ellis, III at a November 8 hearing (pdf).

“I find that looking at this mass of documents, as I have, with all of these prominent inch-and-a-half stamps of Secret, Secret, creates I think unfair prejudice [and] likelihood of confusion with the jury.”

A legal issue arises because such classification markings “have both [inadmissible] hearsay and [admissible] nonhearsay purposes,” he said.

The legitimate nonhearsay purpose is that the markings “show that the Government intended that this be closely held information.”

However, to the extent that the markings indicate the classifier’s “opinion as to whether disclosure of this material would be damaging to the national interest, that’s clearly hearsay” and is impermissible, particularly since the classifier is not present at trial.

After discussing the issue at length, Judge Ellis ruled that “the bold, large classified markings for any documents that are admitted will be removed.” Instead, there will be a stipulation by the parties that the documents were classified and the judge will instruct the jury to consider classification status only for the purpose of determining whether the information was closely held or not.

The November 8 hearing also considered the question of juror bias.

“There are very significant problems with selecting a jury in this case owing to the nature of the case and owing to the publicity that this case has been accorded,” Judge Ellis said, noting “that there may be an animus in prospective jurors that should not be operating. And of course, I am referring to anti-Semitism.”

He asked the parties to draft a questionnaire for use in the jury selection process.

“You don’t ask people, are you an anti-Semite and expect to get a straightforward answer. But I leave to you how that can be reasonably explored,” he said.

A related legal question that remains unresolved is whether potential jurors can be dismissed peremptorily based on their religion or ethnicity.

“In other words, can the Government strike someone [from the jury] just because his name ends in Stein or whatever, or can the defense strike somebody because his name is Mohammed,” Judge Ellis said.

The transcript of the November 8 hearing is not in the PACER system of online federal court records, but a copy was obtained by Secrecy News.

The trial, which has been repeatedly postponed, will not take place before March 2008.

Updated below

The efficacy of intelligence oversight in the Senate has been drastically undermined by procedural hurdles that enable the Defense Appropriations Subcommittee to overrule actions taken by the Senate Intelligence Committee, Senators complained earlier this month. To remedy this concern, a new bill has been introduced that would transfer budget appropriations authority to the Intelligence Committee.

This year, the Senate Intelligence Committee presented “four major oversight initiatives in its [authorization] bill,” said Sen. Christopher S. Bond (R-MO) (pdf) at a Committee hearing on November 13. But in each case, “actions by the appropriations committee were completely dissimilar.”

A Memorandum of Agreement between the Committees that was supposed to improve coordination between the authorizers and the appropriators has failed in every significant respect, he said.

In a written statement, Sen. Bond referred obliquely to several attempted actions by the Intelligence Committee that had been overridden by appropriators to the detriment of national policy.

For example, because of resistance from appropriators, “It took until recent time to end a program that, at the least, should have been terminated a few years ago. Unfortunately, all told, the loss to the taxpayers is astronomical, in the billions of dollars.” This appears to be a reference to the Future Imagery Architecture MISTY satellite program (thanks to Jeff Richelson for the correction).

See Senator Bond’s November 13 statement here.

Related statements and testimony from the SSCI hearing on intelligence oversight are here.

The proposed Senate Resolution 375 that would grant appropriation authority to the Intelligence Committee is here.

The recent decision to declassify the annual budget of the National Intelligence Program now makes it possible to remove the intelligence budget from concealment in the defense budget and to appropriate it independently, thereby strengthening oversight and accountability.

For this and other reasons, budget declassification is the most important involuntary public disclosure of intelligence information at least since declassification of the August 6, 2001 President’s Daily Brief item “Bin Laden Determined to Strike in U.S” (pdf).

But significantly, the intelligence oversight committees, which have been criticized for ineffective leadership on several controversial policy fronts, did not play a leading role in intelligence budget disclosure either.

Update and Correction: Although the intelligence budget disclosure requirement was not successfully enacted in previous Intelligence Authorization Acts, members of the Intelligence Committee did help ensure its acceptance in the bill implementing the 9/11 Commission recommendations. See this October 30 news release from Sen. Kit Bond, “Bond Praises Release of Intelligence Community’s Budget” (pdf). Senator Bond also expressed his support for declassification of top-line budget figures from past years, a task that remains to be accomplished.

Noteworthy new reports from the Congressional Research Service obtained by Secrecy News include the following (all pdf).

“Weak and Failing States: Evolving Security Threats and U.S. Policy,” November 15, 2007.

“Pakistan’s Nuclear Weapons: Proliferation and Security Issues,” updated November 14, 2007.

“The Cost of Iraq, Afghanistan, and Other Global War on Terror Operations Since 9/11,” updated November 9, 2007.

“Judicial Security: Responsibilities and Current Issues,” updated November 13, 2007.

“Pandemic Influenza: An Analysis of State Preparedness and Response Plans,” September 24, 2007.

“The Public Health and Medical Response to Disasters: Federal Authority and Funding,” September 19, 2007.

Italian news reports regarding upheaval in the organization of the Sicilian mafia were synthesized and summarized in a new analysis from the Open Source Center, a component of the Office of the Director of National Intelligence.

“The recent arrest of mafia fugitive Salvatore Lo Piccolo and the April 2006 capture of Bernardo Provenzano, the Sicilian mafia’s ‘boss of bosses,’ have highlighted the succession challenge over the position of top boss within the organization.”

“Open source reporting suggests that the ensuing power struggle, following Provenzano’s arrest, led not only to increased violence in Sicily but also to likely renewed cooperation between the Sicilian mafia and the US-based Gambino family. Their growing relationship may open new possibilities for the Sicilian mafia to launder money through US institutions.”

See “Changes in Mafia Leadership Reveal New Links to US-Based La Cosa Nostra,” DNI Open Source Center, November 19, 2007.

Recent reports of interest from the Congressional Research Service include the following (all pdf):

U.S. Arms Sales to Pakistan, November 8, 2007.

Nuclear Weapons: The Reliable Replacement Warhead Program, updated November 8, 2007.

Armenia, Azerbaijan, and Georgia: Political Developments and Implications for U.S. Interests, updated November 7, 2007.

China and Proliferation of Weapons of Mass Destruction and Missiles: Policy Issues, updated October 22, 2007.

The Iran Sanctions Act (ISA), updated October 12, 2007.

NATO in Afghanistan: A Test of the Transatlantic Alliance, updated October 23, 2007.

China’s Economic Conditions, updated October 11, 2007.

Ukraine: Current Issues and U.S. Policy, updated October 10, 2007.

Nonlethal weapons “can provide a forgiving means of imposing our will on adversaries,” according to a new U.S. military manual (pdf).

Nonlethal weapons (NLW), which do not normally cause fatal injuries, are intended to provide combatants with tools to disable, apprehend or deter an opponent by means short of lethal force. They may be deemed appropriate in urban combat or other environments where civilians are present among opposing forces.

However, by lowering the threshold for violent conflict and diminishing its consequences, nonlethal weapons may paradoxically encourage the outbreak of violence in some circumstances.

The new military manual seeks to preempt confusion about the proper role of nonlethal weapons while promoting their use when suitable. The manual also identifies the NLW capabilities that are currently available for use in each of the military services.

“The existence of NLW does not represent the potential for ‘nonlethal war,’ and unrealistic expectations to that effect must be vigorously avoided,” the document states. “NLW provide a wider range of options that augment, but do not replace, traditional means of deadly force.”

Among their presumed advantages, “NLW can facilitate post-incident stabilization by reducing populace alienation and collateral damage.”

“NLW can reduce the possibility of injury to friendly forces.”

“NLW have relatively reversible effects compared to lethal weapons.”

The new manual on nonlethal weapons has not been approved for public release. But a copy was obtained by Secrecy News.

See “Multi-Service Tactics, Techniques, and Procedures for the Tactical Employment of Nonlethal Weapons,” U.S. Army Field Manual FM 3-22.40, October 24, 2007 (154 pages, 4.5 MB PDF file).

We have deleted one illustration on page III-34 because it is copyrighted.

Secrecy News will resume publication the week of November 26.

An Iranian religious leader reiterated last week that not only is Iran not pursuing nuclear weapons, but that to do so would be a violation of Islamic law.

“Production of nuclear bomb and even thinking on its production are forbidden from Islamic point of view,” said Ayatollah Mohammad Emami Kashani in his Friday sermon at the Tehran University campus.

See “Ayat. Kashani: N-bomb production religiously forbidden,” Islamic Republic News Agency, November 9.

It has previously been reported that a “fatwa” or religious decree against nuclear weapons was issued by Iran’s Supreme Leader Ayatollah Ali Khamenei. But as far as is known, no text of such a fatwa has ever been published to substantiate these reports. See “Iran’s Missing Anti-Nuclear Fatwa,” Secrecy News, August 11, 2005.

Meanwhile, open source information on Iran’s ballistic missile programs was surveyed in a brief new report (pdf) from the Congressional Research Service.

“Today, there is little disagreement among most experts that Iran has acquired some number of ballistic missiles from other countries and has developed other ballistic missiles indigenously or in cooperation with others,” according to CRS.

“At the same time, however, there has been considerable public disagreement over precisely what kinds of ballistic missile systems Iran has or is developing. This is because there is little transparency in Iran’s ballistic missile programs, which has led to a lack of confidence in Iran’s public assertions.”

“Finally, details about Iranian ballistic missile programs remain classified in the United States. Because of the secrecy inherent in the development of weapon systems, especially in less open societies, open-source analyses reflect a wide range of technical views.”

See “Iran’s Ballistic Missile Programs: An Overview,” November 8, 2007.

The declaration of emergency rule in Pakistan has focused new concern on the status of Pakistan’s nuclear arsenal. It may also bring renewed attention to the case of Richard Barlow, the former intelligence officer who attempted to warn Congress two decades ago about Pakistan’s clandestine acquisition of U.S. nuclear technology and who was punished for his trouble.

In a classic whistleblower tale, Mr. Barlow’s security clearances were suspended, the state secrets privilege was invoked, and he was personally vilified after he attempted to notify Congress of irregularities and illegalities in Pakistan’s U.S. acquisitions program. Yet his allegations about Pakistani export control violations and official attempts to conceal those violations were ultimately corroborated.

A summary account of Mr. Barlow’s actions and experiences was presented in one of two pending amendments introduced by Sen. Jeff Bingaman (D-NM) last summer to provide belated compensation for his losses.

Mr. Barlow’s story, and much else about the clandestine development of the Pakistani nuclear weapons program, is presented in a new book called “Deception: Pakistan, the United States, and the Secret Trade in Nuclear Weapons” by Adrian Levy and Catherine Scott-Clark (Walker & Company, 2007).

The Congressional Research Service examined “Pakistan’s Political Crisis and State of Emergency” (pdf) in a new report dated November 6, 2007.

See also “Pakistan-U.S. Relations” (pdf), updated October 18, 2007, and “Direct Overt U.S. Aid to Pakistan, FY2001-FY2008” (pdf), November 8, 2007.

David Isenberg’s Nuclear Underground provides continuing coverage of the nuclear black market, all things related to A.Q. Khan, and the Richard Barlow story.

And see the latest account of the Richard Barlow case in Jeff Stein’s “The Nuclear Bombshell That Never Went Off,” CQ Homeland Security, October 19, 2007.

National Special Security Events (NSSEs) are public events that are deemed to require national-level security planning. They include Presidential inaugurations and nominating conventions, major sporting events like the Super Bowl, and international summits.

Between September 1998 and February 2007, there have been 27 designated NSSEs, according to a new report from the Congressional Research Service, which helpfully tabulated them and provided as much related background as anyone might want. See “National Special Security Events” (pdf), November 6, 2007.

Noteworthy new reports from the Congressional Research Service that have not been made readily available to the public include the following (all pdf).

“Managing the Nuclear Fuel Cycle: Policy Implications of Expanding Global Access to Nuclear Power,” November 1, 2007.

“F-35 Joint Strike Fighter (JSF) Program: Background, Status, and Issues,” updated October 25, 2007.

“Navy DDG-1000 Destroyer Program: Background, Oversight Issues, and Options for Congress,” updated October 25, 2007.

“Operation Iraqi Freedom and Detainee Issues: Major Votes from the 110th Congress,” October 22, 2007.

“Journalists’ Privilege: Overview of the Law and Legislation in the 109th and 110th Congresses,” updated October 18, 2007.

“Japan-U.S. Relations: Issues for Congress,” updated September 27, 2007.

“National Emergency Powers,” updated August 30, 2007.

Prosecutors will be permitted to secretly present certain recorded surveillance data to a jury in the forthcoming trial of two former officials of the American Israel Public Affairs Committee (AIPAC) who are accused of unauthorized receipt and disclosure of classified information, a federal judge ruled (pdf) last week.

Although the closely watched AIPAC case will not go to trial until January, it has already left a distinct imprint on national security law and litigation.

In eleven memorandum opinions issued to date, Judge T.S. Ellis, III has significantly reinterpreted the Espionage Act of 1917, broken new legal ground in implementing the Classified Information Procedures Act (which regulates the use of classified information in criminal trials), and set other precedents.

Last week, Judge Ellis approved limited use at trial of the so-called “silent witness rule,” an unconventional tactic that permits prosecutors to withhold evidence from the public and to disclose it only to the parties, the witnesses and the jury. Because this amounts to closing the trial, it runs the risk of infringing on constitutional guarantees that trials will be public.

The silent witness rule “is a novel evidence presentation technique that has received little judicial attention is the context of the use of classified information in trials,” Judge Ellis noted. “No published decision has explicitly approved or endorsed use of the rule in this context.”

But that has now changed. Judge Ellis approved limited use of the rule to secretly introduce evidence — more evidence than the defense wanted, but less than the prosecution asked for.

Prosecutors had initially sought to introduce 18 minutes and 24 seconds of recorded surveillance conversations along with 36 documents under the silent witness rule. But Judge Ellis only approved “silent” introduction of 4 minutes and 6 seconds of recorded conversation (and apparently no documents).

See Judge Ellis’ November 1 Memorandum Opinion here (pp. 10-20).

In the same Opinion, Judge Ellis restated the stringent standard that he has set for the prosecution to win a conviction on charges of conspiracy to violate the Espionage Act by oral disclosure of national defense information (NDI):

“The government must prove beyond a reasonable doubt that… the defendants (i) knew that the information … was NDI, i.e. knew that the information was closely held by the government and that the disclosure of the information would be damaging to the national security, (ii) knew the persons to whom the disclosures would be made were not authorized to receive the information, (iii) knew the disclosures the conspiracy contemplated making were unlawful, (iv) had reason to believe the information disclosed could be used to the injury of the United States or to the aid of a foreign nation, and (v) intended that such injury to the United States or aid to a foreign nation result from the disclosures.”

“The conspiracy charge fails absent proof of these mental state elements,” Judge Ellis wrote (pp. 9-10).

Also last week, Judge Ellis issued another Opinion approving a defense request for authorization to subpoena testimony from fifteen current and former officials, including Secretary of State Condoleezza Rice.

“The government’s refusal to comply with a subpoena in these circumstances may result in dismissal or a lesser sanction,” Judge Ellis warned in that November 2 Opinion (pdf).