In the near future a federal court will decide whether the prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC) for allegedly mishandling classified information can proceed, or whether it must be dismissed on First Amendment grounds.

It will be a fateful decision either way.

If the prosecution is permitted to proceed, it would reflect an unprecedented determination that private individuals who are not engaged in espionage can be punished for receiving and transmitting national defense information. Such a finding would instantly transform many national security reporters, researchers and others into potential criminals.

If the case is dismissed, it would imply a bold affirmation of First Amendment values against the encroachment of a Justice Department that keeps testing its ever-expanding boundaries.

In their latest pleading (pdf), the defendants called the attention of Judge T.S. Ellis, III, to a new decision of the U.S. Supreme Court which they said supports their argument for dismissal of the AIPAC case.

The Supreme Court decision last week, in a case called Garcetti v. Ceballos, held that when a government employee makes a statement as part of his official duties, he does not enjoy First Amendment protections against retaliation by his employer. The decision was widely viewed as a defeat for whistleblower rights.

But attorneys for the former AIPAC defendants pointed to the sharp distinction made by the Supreme Court between the speech of a government official, which the Court said is not protected by the First Amendment, and the speech of a member of the public, who still possesses First Amendment rights.

“Ceballos confirms the defendants’ argument that while it may be proper to sanction a government employee for certain types of speech, the First Amendment does not allow the government to punish subsequent oral transmissions by non-government individuals” like those in the AIPAC case, the defense attorneys wrote.

“The Motion to Dismiss should be granted.”

See “Defendants’ Notice of Supreme Court Decision Relevant to Defendants’ Joint Motion to Dismiss the Superseding Indictment,” filed June 2, 2006 in USA v. Rosen, Weissman.

In the event of an attack against the United States involving weapons of mass destruction, National Guard units known as WMD civil support teams (CST) would be called upon to respond.

“The mission of the WMD CST is to support civil authorities at a domestic CBRNE [chemical, biological, radiological, nuclear or high-yield explosive] incident site by identifying CBRNE agents/substances, assessing current and projected consequences, advising on response measures, and assisting with requests for additional support.”

The operation of WMD civil support teams was described in a recent National Guard publication on “Weapons of Mass Destruction Civil Support Team Management,” January 12, 2006 (1.2 MB PDF).

Further detail is presented in “Weapons of Mass Destruction Civil Support Team Tactics, Techniques, and Procedures,” U.S. Army Field Manual FM 3-11.22, June 2003 (233 pages, 6 MB PDF).

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“The U.S. Armed Forces disposed of chemical weapons in the ocean from World War I through 1970,” the Congressional Research Service recalled in a valuable new report (pdf).

“At that time, it was thought that the vastness of ocean waters would absorb chemical agents that may leak from these weapons. However, public concerns about human health and environmental risks, and the economic effects of potential damage to marine resources, led to a statutory prohibition on the disposal of chemical weapons in the ocean in 1972.”

“For many years, there was little attention to weapons that had been dumped offshore prior to this prohibition. However, the U.S. Army completed a report in 2001 indicating that the past disposal of chemical weapons in the ocean had been more common and widespread geographically than previously acknowledged.”

“The Army cataloged 74 instances of disposal through 1970, including 32 instances off U.S. shores and 42 instances off foreign shores. The disclosure of these records has renewed public concern about lingering risks from chemical weapons still in the ocean today.”

See “U.S. Disposal of Chemical Weapons in the Ocean: Background and Issues for Congress,” May 24, 2006.

Some other recent CRS reports obtained by Secrecy News that are not readily available in the public domain include:

“Defense: FY2007 Authorization and Appropriations” (pdf), updated May 31, 2006.

“The Changing Demographic Profile of the United States” (pdf), updated May 5, 2006.

Update: The disposal of chemical weapons in the sea was extensively reported by John M.R. Bull of the Daily Press in Hampton Roads, Virginia. See his remarkable series “The Deadliness Below.” (Thanks to Robert McClure of the Seattle Post-Intelligencer’s Dateline Earth.)

The prosecution of Thomas C. Butler, the distinguished scientist who was convicted in 2004 of exporting plague bacteria to Tanzania without proper authorization and of various contract violations, came to a final conclusion last month when the U.S. Supreme Court denied his petition (pdf) to review the matter.

Yet the Butler case may endure as a parable of our times, since Dr. Butler, a specialist in plague and other infectious diseases, is such an unlikely criminal and the government’s pursuit of him seems so heavy-handed.

By all accounts, Butler is a person of extraordinary stature and achievement.

“The defendant’s research and discoveries have led to the salvage of millions (!) of lives throughout the world,” Judge Sam R. Cummings of the Northern District of Texas admitted in March 2004, before sentencing him to two years in jail.

A terrorist is one who destroys life indiscriminately. We lack a word for someone who saves millions of lives indiscriminately. If there were such a word, it could be applied without exaggeration to Thomas Butler.

But incredibly, his expertise in infectious diseases was invoked against him by the post-9/11 prosecution.

“From the outset of the trial, the government openly sought to use the specter of plague to convince the jury that Dr. Butler was a ‘bad person’,” wrote Butler’s defense attorney, George Washington University professor Jonathan Turley.

“The government analogized the actions of Dr. Butler to the practice in the Middle Ages of catapulting plague-infested human cadavers into walled cities to cause panic and death, bringing widespread panic to the quiet town of Lubbock,” Turley recalled.

See the Butler’s petition for certiorari, filed at the U.S. Supreme Court on April 11, 2006.

The petition was denied without comment by the Court in a May 15, 2006 order.

Science Magazine (26 May 2006, p. 1120) reported that “His supporters, including chemistry Nobelist Peter Agre… are hoping against hope for a presidential pardon, if not from George W. Bush then possibly from his successor.”

Selected case files, statements of support and other background materials on the Butler case are available from the Federation of American Scientists here.

Dr. Butler completed his prison term and returned home in December 2005.

In his 1995 executive order 12958, President Clinton directed that most historically valuable classified records be automatically declassified as they become 25 years old. The onset of this automatic declassification process was deferred repeatedly, but it was affirmed in principle by President Bush in his 2003 executive order 13292, and the initial phase of the process is now scheduled to begin at the end of December 2006.

“It is one thing to conceive such a concept and quite another to implement it,” wrote William Leonard, director of the Information Security Oversight Office, in the latest ISOO annual report (pdf) to the President.

“As of September 21, 2005, ISOO estimate[d] that 155 million pages of classified national security information must be declassified, exempted, or referred to other agencies by December 31, 2006.”

“ISOO believes, for the most part, that the Executive branch is progressing toward fulfilling its responsibilities for these records by the deadline,” Mr. Leonard wrote.

A selection of agency declassification plans presented to ISOO detailing plans for compliance with the automatic declassification deadline, obtained under the FOIA by Michael Ravnitzky, is posted here.

For related background, see “Progress Toward the Automatic Declassification Deadline of December 31, 2006” in the 2005 ISOO Annual Report to the President (at page 19).

The legal issues and security procedures involved in litigating national security cases are introduced in a handbook (pdf) published by the Navy Judge Advocate General.

“National Security Cases and cases involving classified information are inherently complex because they impose strict security, reporting, coordination, and approval requirements on top of the necessities of investigating, trying, defending, or adjudicating charges.”

“Some offenses are capital and often are ‘high visibility’ cases overseen by the media, senior government officials, and Congress.”

The JAG handbook “contains information and guidance on the preparation, prosecution, defense, and adjudication of such cases.”

See “The Judge Advocate’s Handbook For Litigating National Security Cases,” Office of the Judge Advocate General, Department of the Navy, n.d. (2002).

The Information Security Oversight Office (ISOO) should exercise its authority to compel the Office of the Vice President to disclose how frequently it classifies and declassifies information, the Federation of American Scientists urged in a letter (pdf) to ISOO Director J. William Leonard.

For the third year in a row, the Office of the Vice President (OVP) has failed to disclose such data, as all executive branch entities that handle classified information are required to do for publication in the ISOO annual report to the President.

But the OVP did not simply neglect to report the data, it declared that it had no obligation to do so.

OVP spokeswoman Lea Ann McBride told the Chicago Tribune last week: “This has been thoroughly reviewed and it’s been determined that the reporting requirement does not apply to [the office of the vice president], which has both legislative and executive functions.” (“Cheney Keeps Classification Activity Secret” by Mark Silva, Chicago Tribune, May 27.)

There is no basis for this claim that the OVP is exempt from reporting.

“Nothing in the executive order excuses the OVP from reporting on classification activity in the performance of its executive duties merely because it also has separate legislative functions,” I wrote in a May 30 FAS letter to ISOO.

“Since the OVP has publicly staked out a position that openly defies the plain language of the executive order, I believe ISOO now has a responsibility to clarify the matter. Otherwise, every agency will feel free to re-interpret the order in idiosyncratic and self-serving ways.”

FAS asked ISOO either to directly compel the OVP to comply with the executive order under threat of sanction, or else to formally request a determination from the Attorney General on the applicability of the executive order to the OVP.

“I recognize that the OVP’s classification activity is quantitatively small, by comparison with other executive branch elements, and that it could easily be overlooked without much detriment to the aggregate statistical reporting by ISOO,” our letter stated.

“But by casting its non-compliance as a matter of principle, the OVP has mounted a challenge to the integrity of classification oversight and to the authority of the executive order. In my opinion, it is a challenge that should not go unanswered,” I wrote.

“You raise some valid points,” wrote ISOO Director Leonard in an initial email response on May 30. “I will pursue.”

In a victory for academic researchers, the Department of Commerce announced the withdrawal of a controversial rulemaking notice on so-called “deemed exports” that would have imposed new restrictions on access to information and technology by foreign-born scientists.

A “deemed export” has taken place when a foreign national who is working in the United States gains access to technology or information that is export controlled.

The 2005 Commerce rulemaking notice had triggered an outpouring of anxiety in academia and among scientists who said the Commerce proposal would complicate or render impossible many common interactions with foreign-born students as well as foreign collaborators. (See “Controls on ‘Deemed Exports’ May Threaten Research,” Secrecy News, 05/02/2005).

In response to hundreds of comments received, the Commerce Department’s Bureau of Industry and Security (BIS) abandoned key features of its proposal, including a surprising provision that access restrictions should be based on an individual’s country of birth rather than on his current citizenship.

Along with withdrawal of the pending proposal, “BIS is establishing a Deemed Export Advisory Committee [that] will serve as forum to address complex questions related to an evolving deemed export control policy.”

The policy shift was described in a Federal Register notice published today.

“While the deemed export rule plays a crucial role in preventing foreign nationals from countries of concern from obtaining controlled U.S. technology, BIS also recognizes that export controls must take into account the integral and critical contribution of foreign nationals to U.S. fundamental research,” the Federal Register notice stated.

“U.S. research institutions play a vital role in advancing science and technology for future generations. Part of the vitality of the research enterprise is the contribution made by foreign national students, faculty, and visiting scientists.”

The scope of the “sensitive security information” (SSI) control category that prevents disclosure of certain kinds of transportation security-related information would be significantly curtailed by the House version of the 2007 Department of Homeland Security Appropriations Act.

The House bill would mandate automatic disclosure of SSI when it becomes three years old if it is not part of an active security plan and unless a written determination is made by the Secretary that it must be withheld.

It would also require DHS to revise its written policy on SSI to provide common representative examples of what constitutes SSI, and it would make it easier for parties in litigation to gain access to SSI. See the SSI provision in the 2007 Homeland Security Appropriations bill, which awaits final action on the House floor, here.

The White House denounced the House measure.

“The Administration strongly opposes Section 525 [the SSI provision], which would jeopardize an important program that protects Sensitive Security Information (SSI) from public release by deeming it automatically releasable in three years…,” according to a May 25 Statement of Administration Policy (pdf).

“This provision would require the Secretary to undertake an ongoing, burdensome review process to protect this secure sensitive information that would otherwise remain appropriately protected by regulation,” the White House said (at page 4).

And see, relatedly, “Homeland Security Department: FY2007 Appropriations” (pdf), Congressional Research Service, May 10, 2006.

The National Security Archive announced the publication of a large collection of Henry Kissinger’s Memoranda of Conversation (memcons), a detailed and candid record of his diplomatic contacts with world leaders from 1969 to 1977, edited by the Archive’s William Burr.

An FBI account of “Bacteriological Warfare in the United States” was published by TheMemoryHole.org. It contains a description of a “previously unknown simulated BW attack on the Pentagon” [circa 1950], notes Michael Ravnitzky, who obtained the document.

The second and final installment of declassified National Security Agency records on Vietnam and the Tonkin Gulf Incident was published yesterday on the NSA web site.

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Public disclosure of intelligence budget data would be required under a provision of the 2007 Intelligence Authorization Act that was reported (pdf) by the Senate Intelligence Committee yesterday and disclosed today.

The total amounts authorized and appropriated for the National Intelligence Program would be publicly disclosed each year starting in 2007, the Senate bill (pdf) states.

After 2007, the bill would also require the President to disclose the aggregate amount requested each year for national intelligence.

The budget disclosure provision was proposed by Senator Ron Wyden (D-OR) and approved yesterday by the Senate Intelligence Committee on a 9-6 vote. All Democrats on the Committee supported the move, as did Republican Senators Olympia Snowe (R-Maine) and Chuck Hagel (R-Nebraska). Other Republicans, including Chairman Pat Roberts (R-KS), opposed it.

Beyond aggregate budget disclosure, the bill would also require the Director of National Intelligence to conduct a study on the advisability of disclosing the budget of each individual element of the intelligence community.

The disclosure requirement (Section 107 of S. 3237) generally corresponds to a bipartisan recommendation of the 9/11 Commission. A similar measure was approved by the Senate in October 2004, but opposed by the White House and blocked in the House.

“The public ought to know how much money the government is spending on intelligence activities and the Senate has long sought this sensible reform,” Senator Jay Rockefeller and other Democratic Senators wrote in a Statement appended to the Report.

“We believe declassifying the aggregate amount of money the nation spends on intelligence would not harm the nation’s security.”

The new Senate Intelligence Committee report on the Intelligence Authorization Act for FY 2007 includes numerous other significant and interesting provisions including: a requirement for a DNI report on treatment of detainees (section 313); a requirement for a report on alleged clandestine detention facilities (section 314); establishment of a National Space Intelligence Center (section 410); and quite a bit more.

See the Senate Intelligence Committee Report on the FY 2007 Intelligence Authorization Act, Senate Report 109-259, May 25.

The underlying bill is S. 3237.

The intelligence bill has been referred to the Senate Armed Services Committee for a ten day period.

Update: See Panel Requires Annual Disclosure of Intelligence Budget by Walter Pincus, Washington Post, May 28.

For the third year in a row the Office of Vice President Dick Cheney has refused to disclose data on its classification and declassification activity, in an apparent violation of an executive order issued by President Bush.

“The Office of the Vice President (OVP), the President’s Foreign Intelligence Advisory Board (PFIAB), and the Homeland Security Council (HSC) failed to report their data to ISOO this year,” the Information Security Oversight Office (ISOO) noted in its new 2005 Annual Report to the President (pdf) (at page 9, footnote 1).

The Office of the Vice President has declined to report such data since 2002. Yet it is clear that disclosure is not optional.

“Each agency that creates or handles classified information shall report annually to the Director of ISOO statistics related to its security classification program,” according to ISOO Directive 1 (at section 2001.80).

This and other ISOO directives “shall be binding upon the agencies,” President Bush wrote in Executive Order 13292 (section 5.1). And an “agency” is not only a statutorily defined executive branch agency, but also includes “any other entity within the executive branch that comes into the possession of classified information.”

Despite this straightforward language, a spokeswoman for Vice President Cheney told the Chicago Tribune in April that his Office is “not under any duty” to provide the required information.

On prior refusals by the Vice President to disclose classification and declassification data, see “Cheney exempts his own office from reporting on classified material” by Mark Silva, Chicago Tribune, April 29, 2006.

Historically, the OVP has “not reported quantitatively significant data,” according to ISOO. So the Vice President’s current defiance of the executive order does not greatly distort the overall presentation of classification activity.

But it signals an unhealthy contempt for presidential authority and undermines the integrity of classification oversight.