The prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC) for mishandling classified information is attracting growing public attention and concern as the anomalous character of the case becomes increasingly clear.

It bears repeating that the two defendants, Steven Rosen and Keith Weissman, are not accused of being agents of Israel or any other foreign power. The government has stipulated that they are not. Although they are charged under “the Espionage Act,” this is not an espionage case.

What makes the whole affair more peculiar still is that the defendants did not even request the disclosure of the information they are accused of mishandling.

“Nowhere is it alleged that Dr. Rosen or Mr. Weissman stole, paid for or even solicited the information that they allegedly received,” the defense noted in a January 19 motion to dismiss.

A theory of the law that would penalize such informal transactions between citizens and government officials is obviously susceptible to extreme abuse.

See “First Amendment Issues Raised About Espionage Act” by Walter Pincus, Washington Post, March 31.

See also “Judge Calls Speech Rights Central to Espionage Case” by Richard B. Schmitt, Los Angeles Times, April 2.

Although Judge T.S. Ellis III questioned the government sharply at a March 24 hearing, there is no reason to deduce that he will dismiss the case. Such questioning typically serves to clarify the basis for prosecution and is, as often as not, a prelude to a ruling in favor of the government.

The jury trial in the case that was originally set for April 25 has been rescheduled for May 23, according to a notice in the case docket.

Members of the House of Representatives who serve on the Intelligence Committee or the Defense Appropriations Subcommittee should be required to obtain security clearances as a condition of the service, said Rep. Steve Buyer (R-IN), who introduced legislation to that end last week.

“These two Committees have access to the most closely guarded secrets our nation possesses,” Rep. Buyer said in March 30 testimony before the House Rules Committee.

“These Committees are positions of the highest level of trust. I do not believe that asking Members to obtain a clearance in exchange for the privilege of serving on these Committees is too much to ask to show the American people that we take this trust seriously,” he said.

He cited the case of Rep. Randy “Duke” Cunningham (R-CA), a member of both committees who was recently convicted of accepting bribes and other offenses, as a justification for the move.

Under Rep. Buyer’s surprising proposal, merely getting elected to Congress would become subordinate to the vagaries of the security clearance process. And since Congress does not have its own security vetting function, the Buyer proposal would effectively transfer to the executive branch the power to approve or deny membership on the intelligence or defense appropriations committees.

See “Buyer Pushes Higher Standards for Members,” news release, March 30.

The Senate voted last week to end the practice of secret “holds” by which a Senator may anonymously block the consideration of pending legislation. The proposal, advanced by Sen. Ron Wyden (D-OR) and Sen. Charles Grassley (R-Iowa), would still permit Senators to object to legislation, but they could not do so anonymously.

“What is unjust about the process of secret holds is that it prevents a Senator from being held accountable when it comes to conducting the people’s business,” said Sen. Wyden. “It’s time to force these objections out of the shadows and into the sunshine.”

Last year, a secret hold was used to block the FY 2006 Intelligence Authorization Act from coming to the Senate floor, and for the first time in three decades the annual Authorization Act was not passed.

“I will tell the Senator who is holding that important intelligence bill,” said Sen. Jeff Sessions (R-AL) in a somewhat bizarre speech on the Senate floor last week. “It is the two Senators from Massachusetts. Senators Kennedy and Kerry have objected to considering the bill because they want to offer amendments.”

That’s not true, Senators Kennedy and Kerry replied. The Senators noted that their amendments had been cleared for consideration, and that there were no objections on the Democratic side.

“Apparently, to prevent debate on this very important issue, a Republican Senator is willing to let the whole intelligence bill fail,” said Sen. Kennedy. “That’s an outrage.”

The Wyden-Grassley amendment to prohibit secret holds passed the Senate on March 28 by a vote of 84-13. All of the 13 no votes were cast by Republicans.

Now that the amendment has passed, will the 2006 Intelligence Authorization Act finally be brought to the Senate floor? Probably not.

“I have little faith in SSCI’s [the Senate Intelligence Committee] ability to produce any legislation, regardless of the circumstances,” said one Democratic congressional expert. But in any case, work on the 2007 Intelligence Authorization bill has already commenced. And the Wyden-Grassley measure is not yet law, the congressional official noted.

The Wyden-Grassley amendment was offered as part of the Lobbying Reform bill that passed the Senate last week. Some recent Congressional Research Service reports on lobbying reform include the following:

“Lobbying, Ethics and Related Procedural Reforms: Comparison of Current Provisions of S. 2349 and H.R. 4975,” March 23, 2006.

“Lobbying and Related Reform Proposals: Consideration of Selected Measures,” 109th Congress, updated March 23, 2006.

“Lobbying Disclosure and Ethics Proposals Related to Lobbying Introduced in the 109th Congress: A Comparative Analysis,” updated March 23, 2006.

“Lobbying Reform: Background and Legislative Proposals,” 109th Congress, updated March 23, 2006.

And, unrelated but for good measure, “Taiwan: Major U.S. Arms Sales Since 1990,” updated March 21, 2006.

The Department of Defense recently published new doctrine (pdf) on the planning and execution of “information operations.”

Information operations, including what was formerly known as “information warfare” (a term that has been withdrawn from official doctrine), is comprised of five elements: psychological operations, military deception, operations security, electronic warfare, and computer network operations.

Its overall purpose is “to influence, disrupt, corrupt, or usurp adversarial human and automated decision making while protecting our own.”

Information operations programs to influence foreign audiences under the rubric of “strategic communication” have been both controversial and notably ineffective.

“If I were rating, I would say we probably deserve a D or D+ as a country as how well we’re doing in the battle of ideas that’s taking place,” said Secretary of Defense Donald Rumsfeld on March 27. “I’m not going to suggest that it’s easy, but we have not found the formula as a country.”

The new doctrinal document is Joint Publication 3-13, “Information Operations,” dated February 13, 2006 (1.3 MB PDF).

Communications support to military operations through the Global Information Grid is addressed in another new document: Joint Publication 6-0, “Joint Communications System,” 20 March 2006 (3 MB PDF).

New Army doctrine on operations — beginning with “How Army Forces Fight” — was published last week in U.S. Army Field Manual Interim FMI 5-0.1, “The Operations Process,” March 31, 2006 (2.7 MB PDF).

The effects of radio frequency (RF) microwave (MW) radiation on the human nervous system and their potential for use in non-lethal weaponry were discussed in a new summary report (pdf) prepared for the Air Force Office of Scientific Research.

“Although the Department of Defense is one of the world’s largest developers and users of RF/MW-emitting systems for radar, communication and anti-electronic weaponry purposes, the use of RF/MW radiation as a non-lethal weapon per se has not yet been realized,” according to the authors.

“Most likely this is because the effects of exposure of biological systems to RF/MW fields at levels that do not produce thermal effects are largely unknown,” the unclassified report states.

“The overall objective of the research funded by this grant was to begin laying the foundation upon which RF/WM technology can be developed that would have an application for non-lethal weaponry uses, such as stunning/immobilizing the enemy.”

See “Interdisciplinary Research Project to Explore the Potential for Developing Non-Lethal Weapons Based on Radiofrequency/Microwave Bioeffects” by Gale L. Craviso and Indira Chatterjee, University of Nevada, January 31, 2006 (1.3 MB PDF).

Update: DefenseTech has more here and here.

Must the President of the United States obey the law? Ordinarily, the answer of course is yes, unless the law itself is unconstitutional.

It is “uncontroversial,” wrote then-Assistant Attorney General Walter Dellinger in a 1994 memorandum for the Clinton White House, that “there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.”

See “Presidential Authority to Decline to Execute Unconstitutional Statutes,” Office of Legal Counsel, Department of Justice, November 2, 1994.

However, the President does not have the last word on what is or is not constitutional. That decision belongs to the Supreme Court.

A new bill introduced by Sen. Charles Schumer (D-NY) yesterday would set the stage for the Supreme Court to consider the legality of the Bush Administration’s warrantless surveillance program by granting legal standing to litigants seeking to challenge the program.

“Did the President go outside the ambit of the law about asking for a warrant?” asked Sen. Schumer. “Some think yes, and they are pretty sure of that. Some think no, and they are pretty sure of it. They are pretty sure that he couldn’t. Many are not sure at all.”

“The most logical place for this to be settled is in the U.S. Supreme Court,” he said in his March 29 introductory statement on the new bill (S. 2468).

The Senate Judiciary Committee held a hearing on March 28 featuring four former judges of the Foreign Intelligence Surveillance Court and other expert witnesses who testified on issues surrounding the warrantless surveillance program and Senator Specter’s legislative proposal on the subject.

Prepared statements from Sen. Leahy, FISA expert Morton Halperin of the Center for American Progress, and former Justice official David Kris (but not yet the statements of the judges) can be found here.

A rare interview with FISA Court Judge George Kazen of Laredo, Texas appeared in the Dallas Morning News earlier this week.

See “Judge juggles busy docket, secret duty” by Todd J. Gilman, Dallas Morning News, March 28 (free but intrusive registration required).

The People’s Republic of China is making significant strides in science and technology areas related to national security and commercial enterprise, according to a new “bibliometric” study of Chinese scientific publications (pdf) performed by the U.S. Navy’s Office of Naval Research.

“China’s output of research articles has expanded dramatically in the last decade. In terms of sheer numbers of research articles, especially in critical technologies (e.g., nanotechnology, energetic materials), it is among the leaders,” according to the study.

“In terms of investment strategy relative to that of the USA, China is investing more heavily in the hard science areas that underpin modern defense and commercial activities, whereas the USA is investing more heavily in the medical, psychological, and social problem (e.g., drug use) science areas that underpin improvement of individual health and comfort,” the authors said.

The 500 page study proceeds from a series of straightforward observations and analyses to several increasingly dense methodological appendices that are unintelligible to non-specialists.

A copy of the study was obtained by Secrecy News.

See “The Structure and Infrastructure of Chinese Science and Technology” by Ronald N. Kostoff, Office of Naval Research, et al, 2006 (3.9 MB PDF file).

The activities of Pakistan’s notorious Abdul Qadeer Khan in proliferating nuclear weapons technology are examined in detail in a recent Master’s Thesis, along with an analysis of their enabling conditions and some of their larger implications.

“The A. Q. Khan nuclear supplier network constitutes the most severe loss of control over nuclear technology ever,” wrote author Christopher O. Clary.

“For the first time in history all of the keys to a nuclear weapon–the supplier networks, the material, the enrichment technology, and the warhead designs–were outside of state oversight and control.”

“This thesis demonstrates that Khan’s nuclear enterprise evolved out of a portion of the Pakistani procurement network of the 1970s and 1980s. It presents new information on how the Pakistani state organized, managed, and oversaw its nuclear weapons laboratories.”

See “The A.Q. Khan Network: Causes and Implications” by Christopher O. Clary, Naval Postgraduate School, December 2005.

Some notable new (or newly acquired) publications of the Congressional Research Service include the following.

“North Korean Counterfeiting of U.S. Currency” (pdf), March 22, 2006.

“Science and Technology Policy: Issues for the 109th Congress” (pdf), updated February 3, 2006.

“The Jackson-Vanik Amendment: A Survey” (pdf), updated August 1, 2005.

The prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC) for allegedly receiving and communicating classified information without authorization poses novel legal issues, the presiding judge in the case said last week.

“We are a bit in new, uncharted waters, and that’s why I’m going to consider this matter extremely carefully,” said Judge T.S. Ellis III at a March 24 hearing on defense motions to dismiss the case.

This is the first case in which the government has sought to criminalize the unauthorized receipt of classified information by non-governmental persons who do not hold security clearances.

Anything other than a dismissal of the charges would mark a dramatic shift in national security law and a significant reduction in First Amendment protections.

At the hearing last week, defense attorneys reiterated their arguments that the underlying statutes are overbroad, unconstitutionally vague, and do not apply to speech but only to the unauthorized transfer of tangible materials such as classified documents.

Unlike documents that bear classification markings, the defense pointed out, oral communications do not provide the recipient with notice that their contents are restricted.

“It’s not a coincidence that the words of the statute speak in [terms of] tangible items, and the conduct here is oral,” said defense attorney Abbe Lowell.

“How can a defendant, a potential defendant, trying to decide whether or not he’s stepping across the line, determine when — what information is national defense information, and when it isn’t?” Judge Ellis asked the prosecution.

“It all depends upon the facts, your Honor,” replied Assistant U.S. Attorney Kevin DiGregory vaguely.

Furthermore, documents can be returned to their rightful owners. But oral information once received into conscious awareness is difficult not to retain. Yet according to the government, retention of such information by unauthorized recipients is illegal too.

“Well, what are they supposed to do,” asked Judge Ellis, “have a lobotomy?”

Prosecutors argued that this is not a First Amendment case involving protected speech.

“What we have alleged in our indictment, your Honor, is not First Amendment protected activity,” said Mr. DiGregory.

“What we have alleged is that these two men conspired with persons, known and unknown, they conspired to gather and disseminate national defense information. And we have alleged that they have done so, and communicated that information to persons not entitled to receive it.”

“What we’re talking about here, your Honor, in the first instance, is conduct. We’re not talking about speech,” he said.

“Do you think that you can transform speech into conduct?” Judge Ellis replied. “You can’t do it just by labeling it conduct.”

“All speech is a type of conduct,” the Judge continued, “but it’s a type of conduct which [defense attorney] Lowell would quickly say falls within the First Amendment. But he would have to be quick to concede that conduct in terms of giving someone a document is not speech, under the First Amendment.”

None of these disputed issues were resolved, and the Court’s aggressive questioning does not reliably indicate the Judge’s own predilections. The parties were ordered to further brief the First Amendment issues by Friday, March 31.

A copy of the transcript of the March 24 hearing in U.S.A. v. Rosen and Weissman was obtained by Secrecy News.

“I am not sure why FAS and other outlets are trying make AIPAC into some kind of martyr of freedom,” wrote one commenter on the Secrecy News blog last week. “Its activities were clearly illegal and in violation of US law. Let’s be careful not to confound the defense of freedom with a defense of illicit activity.”

AIPAC, however, is not on trial and is not accused of wrongdoing. Whether or not the defendants’ activities were illegal is the question that is now before the Court.

As for Secrecy News’ interest in the case, it stems from the fact that we also gather and disseminate “national defense information,” a term that encompasses both classified and unclassified defense information.

We have “unauthorized” conversations with government officials. Sometimes we deliberately pose questions about matters that we know to be classified (“Psst…How big was the total intelligence budget 50 years ago?”).

If the government’s unbounded new interpretation of the espionage statutes were to prevail, much of our research and publication activity could arguably be considered illegal.

“Under the government’s theory, in fact, countless conversations and publications that take place every day are criminal acts,” the Washington Post editorialized last week.

See “Dangerous Prosecution,” Washington Post, March 23.

Some recent reports of the Congressional Research Service on Middle East-related topics include the following.

“Israel: Background and Relations with the United States,” updated March 16, 2006.

“Palestinian President Mahmoud Abbas: Overview of Internal and External Challenges,” updated March 9, 2006.

“Iraq: Elections, Government, and Constitution,” updated March 13, 2006.

“Iraq: U.S. Regime Change Efforts and Post-Saddam Governance,” updated March 7, 2006.

“Women in Iraq: Background and Issues for U.S. Policy,” updated March 13, 2006.

“Lebanon,” updated March 16, 2006.

“Saudi Arabia: Current Issues and U.S. Relations,” updated February 24, 2006.

“Afghanistan: Post-War Governance, Security, and U.S. Policy,” updated March 17, 2006.

National security letters are investigative tools used in foreign intelligence investigations to compel the disclosure of certain transactional information such as financial records and communications data.

NSLs have become controversial due to their increasing use by government agencies (primarily the FBI), and because of the non-disclosure requirements and the limited judicial oversight involved in their use.

A new report (pdf) from the Congressional Research Service sorts through the five statutes that authorize the use of National Security Letters, including the latest amendments which provide for a measure of judicial review.

See “National Security Letters in Foreign Intelligence Investigations: Legal Background and Recent Amendments,” March 17, 2006.

An abbreviated version of the same report, without footnotes or appendices, is “National Security Letters in Foreign Intelligence Investigations: A Glimpse of the Legal Background and Recent Amendments” (pdf), March 21, 2006.

Administrative subpoenas used in criminal investigations are approximately analogous to national security letters used in foreign intelligence investigations. They are the subject of another new report from the Congressional Research Service.

For extended background on administrative subpoenas, see “Administrative Subpoenas in Criminal Investigations: A Brief Legal Analysis” (pdf), March 17, 2006.

An abbreviated version of that report is “Administrative Subpoenas in Criminal Investigations: A Sketch” (pdf), March 17, 2006.

CRS does not make its publications directly available to the public. Copies of these reports were obtained by Secrecy News.