The U.S. Army has updated its regulations governing unmanned aircraft system operations.

See “Unmanned Aircraft System Flight Regulations” (pdf), U.S. Army Regulation 95-23, 7 August 2006.

In a momentous expansion of the government’s authority to regulate public disclosure of national security information, a federal court ruled that even private citizens who do not hold security clearances can be prosecuted for unauthorized receipt and disclosure of classified information.

The ruling (pdf) by Judge T.S. Ellis, III, denied a motion to dismiss the case of two former employees of the American Israel Public Affairs Committee (AIPAC) who were charged under the Espionage Act with illegally receiving and transmitting classified information.

The decision is a major interpretation of the Espionage Act with implications that extend far beyond this particular case.

The Judge ruled that any First Amendment concerns regarding freedom of speech involving national defense information can be superseded by national security considerations.

“Although the question whether the government’s interest in preserving its national defense secrets is sufficient to trump the First Amendment rights of those not in a position of trust with the government [i.e. not holding security clearances] is a more difficult question, and although the authority addressing this issue is sparse, both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense,” Judge Ellis wrote (p. 53).

The provisions of the Espionage Act are not impermissibly overbroad or unconstitutional, the Judge ruled, because they are limited by the requirements that the prohibited behavior be both knowing and willful.

“The government must… prove that the person alleged to have violated these provisions knew the [restricted] nature of the information, knew that the person with whom they were communicating was not entitled to the information, and knew that such communication was illegal, but proceeded nonetheless.”

“Finally, with respect only to intangible information [as opposed to documents], the government must prove that the defendant had a reason to believe that the disclosure of the information could harm the United States or aid a foreign nation….”

“So construed, the statute is narrowly and sensibly tailored to serve the government’s legitimate interest in protecting the national security, and its effect on First Amendment freedoms is neither real nor substantial as judged in relation to this legitimate sweep,” Judge Ellis wrote (p. 63).

Others will disagree.

For example, the classified 2004 report of Maj. Gen. Antonio Taguba on prisoner abuse at Abu Ghraib prison clearly fit the court’s description of national defense information that is closely held by the government. Moreover, its unauthorized disclosure was likely to, and did in fact, harm the United States. And yet that disclosure also served an important national purpose in prompting a public debate over U.S. policy on prisoner detention and interrogation.

But under Judge Ellis’ new interpretation, those reporters and others who communicated this information to the public could apparently be prosecuted under the Espionage Act.

Judge Ellis concluded his opinion by noting that the provisions of the Espionage Act “have remained largely unchanged since the administration of William Howard Taft.”

Technological and other changes over the past century “should suggest to even the most casual observer that the time is ripe for Congress to engage in a thorough review and revision of these provisions to ensure that they reflect both these changes, and contemporary views about the appropriate balance between our nation’s security and our citizens’ ability to engage in public debate about the United States’ conduct in the society of nations.”

The Air Force Research Laboratory (AFRL) said this week that it will not administer a grant to a San Antonio, Texas law school to study state freedom of information laws.

In a story that prompted new concerns about official secrecy, USA Today reported last month that the government was going to pay St. Mary’s University School of Law $1 million to reevaluate state freedom of information laws in light of the threat of terrorism.

But the proposed freedom of information study “doesn’t fit with the information research and development that we do,” said Dan Emlin of the AFRL Information Directorate in Rome, New York.

That AFRL Directorate focuses on information technology — including C4I, artificial intelligence, and surveillance technology — but not information policy.

The freedom of information study “was more of a [policy] ‘project’ than bona fide research,” Mr. Emlin told Secrecy News, and “so the [AFRL] Director decided ‘We’re not going to do it’.”

Based on news reports and public statements, the proposed freedom of information study seemed oriented towards new limitations on public disclosure of information.

So, for example, St. Mary’s law school professor Jeffrey Addicott, the lead investigator, told USA Today that “There’s the public’s right to know, but how much?”

“There’s too much stuff that’s easy to get that shouldn’t be,” he added.

(“And plenty of stuff that should be easy to get that isn’t,” the Detroit Free Press objected in a July 26 editorial criticizing the program.)

But Senator John Cornyn, who sponsored the defense budget earmark of funds for the St. Mary’s project, said its purpose was not to increase secrecy.

“In fact, the exact opposite is true. The research will make certain that free flow of information is not unnecessarily hindered by security-driven laws approved by states after Sept. 11, 2001,” he said in a statement on the St. Mary’s web site.

“The study is not designed to assist the Department of Defense, Pentagon or individual States to weaken either State or Federal Freedom of Information Act laws,” according to another statement from the University.

Since the $1 million grant has already been appropriated by Congress in the FY 2006 defense appropriations bill, it is possible that another agency will step forward to administer the award. But with AFRL’s refusal to participate it is not immediately clear which agency that might be.

The Defense Intelligence Agency has prepared an illustrated briefing (pdf) on the components of a MANPADS shoulder-fired anti-aircraft missile briefing to assist security personnel in identifying such weapons and apprehending those who possess them without authorization.

“An individual cannot legally possess a MANPADS [man-portable air defense system] under federal law,” the DIA briefing notes.

“If you encounter an individual in possession of a piece of equipment that resembles any of the attached photos… please hold and notify the On-Call Intelligence agent.”

The briefing was produced for the Transportation Security Administration by the Defense Intelligence Agency’s Missile and Space Intelligence Center.

See “MANPADS Components,” Defense Intelligence Agency, undated (2002).

A PowerPoint version of the same briefing is available here.

Ethiopia this week became the 135th country to ratify the comprehensive nuclear test ban treaty (CTBT), which prohibits the explosive testing of nuclear weapons.

To enter into force, the CTBT must be ratified by 44 States listed in Annex 2 of the Treaty. So far, 34 of those States have done so.

See “Ethiopia ratifies Comprehensive Nuclear-Test-Ban Treaty,” CTBT Organization news release, August 9.

Background, history and current status of the proposed test ban may be found in “Nuclear Weapons: Comprehensive Test Ban Treaty” (pdf), Congressional Research Service, updated June 21, 2006.

“Sen. Kit Bond has gone way too far in an effort to curtail the public’s right to information on government operations,” according to one of the leading newspapers in his home state of Missouri.

The Kansas City Star objected to a bill introduced this week by Senator Bond that would outlaw “leaks” or unauthorized disclosures of classified information. A similar provision was vetoed by President Clinton in 2000.

Opponents of such measures argue that the ability of the press to uncover and report on misconduct in classified programs often depends on leaks of classified information, and that reporting on such leaks serves a larger national interest.

So, for example, the fact that “numerous incidents of sadistic, blatant, and wanton criminal abuses were inflicted” on detainees at Abu Ghraib prison was classified “Secret” when it was first reported by the press. The unauthorized disclosure of these findings, in a leaked copy of a classified report by Army General Antonio Taguba, triggered a series of investigations and continuing public controversy.

“Bond should withdraw his proposal immediately,” the Kansas City Star editorialized today. “It obviously is not well thought out.”

See “Law Would Go Against Ideals of Free Society,” Kansas City Star, August 4 (free but intrusive registration required).

“Over the past few years, we have seen unauthorized disclosures of classified information at an alarming rate,” said Senator Bond on the Senate floor on August 2.

“Each one of the leaks gravely increases the threat to our national security and makes it easier for our enemies to achieve their murderous and destructive plans. Each leak is a window of opportunity for terrorists to discover our sources and methods. Each violation of trust guarantees chaos and violence in the world.”

See the introduction of his bill to prohibit unauthorized disclosures as well as the text of the bill (S. 3774).

The bill has been referred to the Senate Judiciary Committee.

Information operations that are designed to influence the perceptions and conduct of enemy combatants and non-combatants can be a highly effective adjunct to military force, but they were not effectively executed by the U.S. military in Iraq, a new U.S. Army monograph (pdf) reports.

Information operations can include military deception, psychological operations, operations security, and electronic warfare.

The Army monograph investigates the role of information operations in Iraq and presents recommendations for changes in doctrine, training, resources and intelligence support.

See “Information Operations in Operations Enduring Freedom and Iraqi Freedom — What Went Wrong?” by Major Joseph L. Cox, US Army School of Advanced Military Studies, Fort Leavenworth, May 2006 (134 pages, 3.6 MB PDF).

(Updated below)

The potential threat to commercial aircraft from hostile use of shoulder-fired anti-aircraft missiles (Man Portable Air Defense Systems, or MANPADS) still does not have a satisfactory technological solution, the Department of Homeland Security said in a new report to Congress.

“It is feasible to transition selected military [defense] technology to the commercial aviation environment, but it is challenging from a logistics, cost, export control, and, to some extent, from a liability perspective,” the DHS report said.

“Additional design, development, test, and actual operation [of counter-MANPADS technology] in the commercial environment is needed to improve reliability, reduce drag and weight, incorporate technology protection, [and] enhance producibility….”

See “Department of Homeland Security Counter-MANPADS Program Summary, Report to Congress Detailing Phases I and II Findings of the Counter-MANPADS Program,” DHS Science and Technology Directorate, July 31, 2006.

[Update 08/11/06: At the request of the Department of Homeland Security, Secrecy News has taken this report off-line.]

The new DHS assessment, which has not previously been made available to the public, was first reported by the Associated Press.

See “Airline Anti-Missile System Years Away” by Leslie Miller, Associated Press, July 31.

Extensive background on MANPADS proliferation prepared by Matthew Schroeder of the FAS Arms Sales Monitoring Project is available here.

“Congress needs to keep in mind that onboard anti-missile systems are not a panacea; they only protect planes from a small sub-category of threats, and provide no protection for Americans flying on foreign airliners that aren’t equipped with the systems,” Mr. Schroeder said. “If Congress goes this route, they need to redouble non- and counter-proliferation efforts.”

Numerous new reports of the Congressional Research Service on subjects of public interest and concern have been issued lately. Yet by design, they are not made readily available to the public. They include the following.

“The Department of Defense Rules for Military Commissions: Analysis of Procedural Rules and Comparison with Proposed Legislation and the Uniform Code of Military Justice” (pdf), updated July 25, 2006.

“Hamdan v. Rumsfeld: Military Commissions in the ‘Global War on Terrorism'” (pdf), July 6, 2006.

“Military Tribunals: Historical Patterns and Lessons” (pdf), July 9, 2004.

“Iran: U.S. Concerns and Policy Responses” (pdf), updated July 31, 2006.

“Israeli-Arab Negotiations: Background, Conflicts, and U.S. Policy” (pdf), updated July 25, 2006.

“Lebanon” (pdf), updated July 24, 2006.

“European Approaches to Homeland Security and Counterterrorism” (pdf), July 24, 2006.

“China and Proliferation of Weapons of Mass Destruction and Missiles: Policy Issues” (pdf), updated July 17, 2006.

“Banning Fissile Material Production for Nuclear Weapons: Prospects for a Treaty (FMCT)” (pdf), July 14, 2006.

“North Korean Ballistic Missile Threat to the United States” (pdf), updated July 6, 2006.

“International Small Arms and Light Weapons Transfers: U.S. Policy” (pdf), updated June 27, 2006.

Senator Christopher Bond (R-Missouri) introduced legislation today to criminalize the unauthorized disclosure of classified information.

“We need to send a message that leaks will not be tolerated and give prosecutors a modern and appropriate tool to go after those who do leak,” he said.

The new Bond bill is identical to the controversial anti-leak legislation sponsored by Senator Richard Shelby in the FY 2001 Intelligence Authorization Act that was vetoed by President Clinton in November 2000.

See “Bond Legislation Targets Intelligence Leaks,” August 2.

Meanwhile, a new U.S. intelligence policy on unauthorized disclosures of classified information is pending, the Director of National Intelligence said last week in a progress report.

“The DOJ and ODNI are … working closely on leaks issues,” he wrote (at page 8). “In March 2006 the ODNI issued policies to consolidate IC reporting of leaks and is now preparing to issue a Community-wide directive on [unauthorized] disclosures.”

The National Security Whistleblowers Coalition disclosed last week that former NSA employee Russell Tice had been summoned to appear before a grand jury investigating the unauthorized disclosure of classified information. See related background, including a copy of the grand jury summons, on the Coalition web site here.

Mr. Tice and other national security whistleblowers testified before the House Committee on Government Reform last February, and the record of that hearing has just been published.

See “National Security Whistleblowers in the post-9/11 Era: Lost in a Labyrinth and Facing Subtle Retaliation,” February 14, 2006.

(Updated below)

The names of foreign countries that are being considered for deployment of U.S. missile defense systems are unclassified but nevertheless should be kept secret, the Missile Defense Agency ordered (pdf) last year.

“There are many operational and political sensitivities that require varying levels of protection as we consider possible deployments,” wrote MDA Deputy Director Gen. Marvin K. McNamara.

“Therefore, I am requiring that potential host nations being studied or considered by MDA for operational deployments not be identified by country or city name in any form on Unclassified computer systems…..”

The November 22, 2005 MDA memorandum on “Protection of Information Regarding Operational Deployments” was obtained by Nick Schwellenbach of the Project on Government Oversight and is available here.

In an email message also obtained by POGO, an MDA security manager paraphrased the policy this way: “Information regarding operational deployments should be treated as ‘Secret’ for political purposes and, for that reason, the information is to be sent encrypted or by SIPRNET.”

What is at issue here, explained Victoria Samson of the Center for Defense Information, is the location of the third site for the Ground-based Midcourse Defense (GMD) system, which is still under conideration.

But not everyone got the word.

In a March 20, 2006 briefing (pdf) by MDA Director Gen. Trey Obering, obtained by Ms. Samson, three countries are identified as possible candidates for the third ground-based site: the United Kingdom, the Czech Republic, and Poland. See “Missile Defense Program Update” (at slide 35).

Official controls on unclassified information have mushroomed in recent years. An interagency task force that conducted an inventory of so-called Sensitive But Unclassified control markings recently identified 164 distinct marking systems for controlling unclassified information, according to Grace Mastalli, who co-chaired the task force.

Update: The March 20 Obering briefing was presented at an MDA/AIAA briefing in Washington, DC. It was previously reported by Inside Missile Defense, which noted the identification of the UK as a candidate country for the third GMD site, and also made the briefing available to readers.

A bipartisan bill introduced in the House would require the House Intelligence Committee to disclose information on intelligence activities to other congressional committees, as long as such disclosure did not reveal sensitive intelligence sources or methods.

“In order to exercise proper oversight, House committees need all pertinent information and, unfortunately, that process isn’t functioning as it was intended to,” said Rep. Jeff Flake (R-AZ), who introduced the bill.

“We should not have to rely on the morning paper to learn about secret government programs, particularly when we sit on committees that are charged with overseeing such programs,” said Rep. Adam Schiff (D-CA), a co-sponsor.

See the “Intelligence Oversight Act” (H.R. 5954) here.

In a move that may enhance its legislative prospects, the bill has been referred to the House Rules Committee rather than to the House Intelligence Committee, UPI’s Shaun Waterman reported (h/t POGO).