In the unprecedented prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC), a federal court last year upheld the government’s controversial claim that the Espionage Act could be used to prosecute the unauthorized receipt and transmittal of classified information by private citizens who are not engaged in espionage.

But as the case proceeds, the court continues to interpret the Espionage Act in a restrictive manner that places an increasing burden of proof on the prosecution, and that could even make the case a source of embarrassment for the government by exposing sensitive “back channel” diplomatic practices.

In a decision last week (pdf), Judge T.S. Ellis, III, denied a defense motion asking the court to compel testimony from Israeli government officials.

But along the way, the court also elaborated its demanding view of the requirements that the prosecution must meet to win a conviction under the Espionage Act, and indicated what sorts of facts might tend to exculpate the defendants.

“To prove the alleged conspiracy to disclose [national defense information, or NDI] to one not authorized to receive it, the government must prove all of the following,” wrote Judge Ellis, at the beginning of a list of prosecutorial hurdles that reiterates and expands upon the requirements first spelled out in his August 2006 order denying a motion to dismiss the case.

Among other things, the government must prove that “defendants possessed all the culpable mental states that would be necessary for conviction under [the Espionage Act],” which include four distinct states of knowledge or belief (at page 9).

Briefly, prosecutors must show that the defendants knew the information involved was closely held and could harm the United States; that it could be used to the injury of the United States or to the advantage of a foreign nation; that the recipients of the information were not authorized to receive it; and that the defendants acted with knowledge that the disclosures were illegal and could harm national security.

But if the defense can show that U.S. government officials frequently disclosed confidential information to AIPAC for transmittal to the Israeli government, the court observed, that would mean the defendants could have plausibly believed such behavior was authorized.

If “the governments of the United States and Israel routinely used AIPAC as a diplomatic ‘back channel’ [to convey sensitive information]” that would be “potentially exculpatory” since it could “affect defendants’ perception of the propriety of any disclosures made by or to them.”

The nature of the relationship between the governments of the U.S. and Israel may also have a bearing on the defendants’ state of mind, the Judge wrote, in language that may foreshadow close scrutiny of U.S.-Israel relations at trial:

“The more specific the details of the alleged cooperation between the two governments, the more probative [i.e., legally significant] such cooperation becomes,” Judge Ellis wrote. (p. 14)

In another important observation, the judge wrote that “testimony that disclosures of alleged NDI were viewed by defendants, or their contacts in the diplomatic establishment, as beneficial to the United States’ interests is exculpatory.” (p. 13)

Similar reasoning would imply that if a news organization published classified information in the belief that doing so was beneficial to the United States, that would take it beyond the scope of the Espionage Act’s prohibitions on unauthorized disclosure of national defense information.

The trial of defendants Steven J. Rosen and Keith Weissman is scheduled to begin on or around June 4 in the Eastern District of Virginia.

A separate ruling (pdf) from Judge Ellis last week denied a defense request to suppress statements made by defendants to FBI agents on grounds that the agents used trickery or deception to elicit the statements.

The two rulings were first reported in the New York Sun on February 16.

Intelligence analysis “must be objective and independent of political considerations,” according to a new “capstone” directive (pdf) issued by the Director of National Intelligence.

The directive establishes the policy framework for intelligence analysis and defines a set of methodological standards and expectations, with an emphasis on inter-agency collaboration and outreach.

“The IC will seldom have the requisite depth and breadth of expertise to provide all of the insights and detailed answers demanded by our customers. To satisfy their needs, the IC must tap outside expertise and build and expand relationships with non-intelligence government agencies, academic, business, non-governmental organizations (NGOs), and think tank communities, both domestically and internationally, while addressing the counterintelligence and security obligations that are inherent to such initiatives.”

See “Management, Integration, and Oversight of Intelligence Community Analysis,” Intelligence Community Directive (ICD) 200, January 8, 2007.

Also new is “Intelligence Community Update to DCID 6/11, ‘Controlled Access Program Oversight Committee’,” Intelligence Community Policy Memorandum (ICPM) 2006-700-10, January 12, 2007.

Some recently updated reports of the Congressional Research Service that are not readily available in the public domain include the following (all pdf).

“U.S. Foreign Aid to East and South Asia: Selected Recipients,” updated January 3, 2007.

“NATO’s Prague Capabilities Commitment,” updated January 24, 2007.

“Ballistic Missile Defense: Historical Overview,” updated January 5, 2007.

“Islamic Religious Schools, Madrasas: Background,” updated January 23, 2007.

“The Islamic Traditions of Wahhabism and Salafiyya,” updated January 17, 2007.

Though the general public is not permitted access to the congressional database of CRS reports online, these same reports can be purchased from a private vendor for about $4000 per year, the Washington Post noted yesterday.

“How I get them is my trade secret . . . but I get them all,” said Walt Seager, who digs up the reports for Gallery Watch, a legislative tracking service.

See “Information, Please” by Elizabeth Williamson, Washington Post, February 19.

In fact, however, Gallery Watch only gets those reports that are for common use by all Congressional offices. It does not provide the significant fraction of reports that are performed for the use of an individual Member. For the same reason, the claim by Gallery Watch that its reports provide some kind of advance insight into the Congressional agenda is exaggerated. Most of the reports it offers are updates of existing publications, along with others that are mostly undertaken at the initiative of CRS itself, not Members of Congress.

What is true is that current congressional policy on CRS reports promotes a kind of checkbook democracy, in which corporations, other large institutions and wealthy individuals have exclusive or preferred access to CRS products, while the general public is left to fend for itself.

Some recent Congressional Research Service reports obtained by Secrecy News that are not readily available in the public domain include the following (all pdf).

“Sharing Law Enforcement and Intelligence Information: The Congressional Role,” February 13, 2007.

“India-U.S. Relations,” updated February 13, 2007.

“Changes to the OMB Regulatory Review Process by Executive Order 13422,” February 5, 2007.

“Al Qaeda: Statements and Evolving Ideology,” updated January 24, 2007.

“Nonstrategic Nuclear Weapons,” updated January 9, 2007.

“Instances of Use of United States Armed Forces Abroad, 1798-2006,” updated January 8, 2007.

“‘Sensitive But Unclassified’ Information and Other Controls: Policy and Options for Scientific and Technical Information,” updated December 29, 2006.

The average amount of time required by the government to conduct a background investigation and process a security clearance application has been around one year for a Top Secret clearance and 5 to 6 months for a Secret or Confidential clearance, which is “a totally unacceptable length of time,” according to a new report to Congress from the Office of Management and Budget. The February 15 Report of the Security Clearance Oversight Group (pdf) describes efforts underway to reduce security clearance processing time.

“The Putin Era in Historical Perspective” (pdf) was the topic of a conference of non-governmental experts sponsored by the DNI’s National Intelligence Council. The conference report hews closely to received wisdom and is surprisingly devoid of significant insight. (“Bereft of its former empire, Russia still aspires to be a great power and to be respected as such.”)

“The Infantry Battalion” (large pdf) is a new U.S. Army Field Manual (FM 3-21.20, December 2006) that describes the roles and missions of Army battalions at great length (599 pages, 20 MB PDF).

Soviet intelligence agencies “rarely used the polygraph, but trained some of their officers with a machine stolen in 1965 by a Counterintelligence Corps sergeant, Glen Rohrer, who defected to Czechoslovakia.”

That curious factoid is just one of many intriguing nuggets contained in a new “Historical Dictionary of Cold War Counterintelligence” by British intelligence writer Nigel West, which is the sixth in a series of historical intelligence dictionaries published by Scarecrow Press.

From “abduction” to “Zlatovsky” the new Dictionary provides brief, capsule summaries of key topics, terms and events in the turbulent history of cold war counterintelligence.

All of the familiar entries are there, and quite a few unfamiliar ones.

“White Knuckle” is “the CIA codename for an operation to recover classified files that had been loaned to the KGB defector Anatoli Golitsyn to assist his research for the counterintelligence staff. The documents were retrieved from his home in New York City, as well as from his mill farm upstate.”

“Eyewash” is “the CIA term for false entries made in files, usually to protect the security of a source, often indicating that a particular target has rejected a pitch, when in fact the offer was accepted.”

An excellent series of Appendices provide a convenient roster of espionage prosecutions in the United States; a list of U.S. defectors to the Soviet Union; a list of Soviet and Eastern bloc intelligence defectors to the United States; and more.

Part of the satisfaction of reading a book like this derives from seeking and finding errors, and there are at least a few of those. There is a “Philip” whose name is misspelled “Phillip.” More significantly, CIA covert action is not limited to, nor does it even consist principally of, “paramilitary operations,” as the Dictionary says.

The entries themselves are not sourced or annotated, so if a reader wants to pursue further information, he has to take his best guess as to where it may be found in the bibliography.

Some readers might wish the author had refrained from publishing speculation about the identities of individuals who he thinks correspond to spies known only by their Soviet code name. If the book is mistaken about the “likely” identity of RELAY, for example, it will have perpetrated an injustice that is difficult to correct.

Just a few writers have immersed themselves in the historical intelligence literature as extensively as the prolific Mr. West and returned to write about it. So almost anyone is likely to learn something new.

Some of the other volumes in the present series have been found wanting by Hayden B. Peake, a former intelligence officer and bibliophile who reviewed them for the CIA journal Studies in Intelligence. But an earlier volume on British intelligence that was also written by Mr. West was ruled by Mr. Peake “quite good,” which is high praise from that quarter.

The very high list price of the book ($115) will make it unaffordable for many readers and will probably limit its acquisition to larger libraries and special collections.

More information, including a table of contents, may be here.

Though it is still too early to identify concrete results, the pace of Congressional oversight activity on secrecy and intelligence matters has already increased markedly in the new Congress.

The House Intelligence Subcommittee on Intelligence Community Management said it “will monitor trends in classification of executive branch material, the costs of over-classification, the practice of selective declassification, and the exclusive reliance on a variety of ‘sensitive but unclassified’ designations by U.S. government agencies and departments,” according to a new Committee work plan (pdf). “The Subcommittee will also examine the issue of unauthorized disclosure of classified information.” See “Oversight Plan for the 110th Congress,” House Permanent Select Committee on Intelligence, February 7.

Rep. Henry Waxman’s House Committee on Oversight and Government Reform held a February 13 hearing on the Whistleblower Protection Enhancement Act that would extend protections to whistleblowers in intelligence and national security agencies. Prepared testimony from that hearing, including several informative statements on current issues in whistleblower protection policy, may be found here.

Rep. Bennie Thompson (D-MS) introduced the Intelligence Community Audit Act (H.R. 978), a bill that would “reaffirm the authority of the [Government Accountability Office] to audit and evaluate the programs, activities, and financial transactions of the intelligence community.” It is a companion measure to S. 82, introduced by Sen. Akaka last month.

Senator Christopher Dodd introduced the Restoring the Constitution Act (S. 576) that would amend the much-criticized Military Commissions Act of 2006, which curtailed habeas corpus claims by suspected enemy combatants. Co-sponsor Sen. Russ Feingold said the new bill would “restore basic due process rights and ensure that no person is subject to indefinite detention without charge based on the sole discretion of the President.”

Military doctrine on maintaining air superiority against enemy aircraft and missiles is presented in a newly updated publication (pdf) from the Joint Chiefs of Staff.

Counterair operations include both offensive counterair (OCA) to destroy enemy aircraft, missiles or other weapons before they can be used, and defensive counterair (DCA) to detect, intercept and destroy enemy weapons in use.

Military planners “should expect MANPADS [shoulder-fired missiles] and AAA [anti-aircraft artillery] coverage wherever enemy forces are encountered,” the new doctrine states.

Seven U.S. helicopters have been shot down in Iraq in the last month, the Associated Press noted today.

See “Countering Air and Missile Threats,” Joint Publication JP 3-01, February 5, 2007.

The Department of Defense has revised and supplemented its polygraph program to include non-polygraph techniques for detecting deception.

A new Pentagon directive (pdf) introduces the term “Credibility Assessment (CA),” which refers to “The multi-disciplinary field of existing as well as potential techniques and procedures to assess truthfulness that relies on physiological reactions and behavioral measures to test the agreement between an individual’s memories and statements.”

The new directive also transfers the polygraph program from the Defense Security Service to the secretive DoD Counterintelligence Field Activity (CIFA). The program will be overseen by the Under Secretary of Defense for Intelligence.

Eleven military and defense intelligence organizations listed in the directive are authorized to conduct polygraph and credibility assessment examinations.

The reliability of polygraph testing for employee screening is widely disputed on scientific grounds. But many government security officials nevertheless insist on its value and utility, and the practice persists.

See “Polygraph and Credibility Assessment Program,” Department of Defense Directive 5210.48, January 25, 2007.

Improvised explosive devices (IEDs) are a major source of U.S. and allied casualties in Iraq. Military doctrine for confronting and defeating the IED threat is set forth in a 2005 U.S. Army field manual (excerpt, pdf).

“The proliferation of IEDs on the battlefield in both Iraq and Afghanistan has posed the most pervasive threat facing coalition forces in those theaters,” the manual states. “The persistent effectiveness of this threat has influenced unit operations, U.S. policy, and public perception.”

The manual discusses the nature of the threat, describes the defining characteristics of IEDs, and presents a framework for developing opposing strategy and tactics.

The manual has not been approved for public release and portions of the document that may be operationally sensitive are being withheld from publication online by Secrecy News.

See “Improvised Explosive Device Defeat (excerpt),” Field Manual Interim FMI 3-34.119, September 2005 (44 pages of a total 142 pages).

The 2005 document makes no mention of the explosively formed projectiles (EFPs) that have recently been described by the Department of Defense as a particularly dangerous variant of IED. See a February 11, 2007 DoD briefing on “Iranian Support for Lethal Activity in Iraq,” via TPM Muckraker.

The transfer of sensitive government communications security (COMSEC) information and equipment to industry is the subject of a newly revised U.S. Navy Instruction (pdf).

“Government cryptographic equipment operations will ordinarily be conducted by the Government,” the Instruction states.

“However, when there is a valid need and it is clearly in the best interest of the Navy and the Government, cryptographic equipment, keying material, related COMSEC information, and access to classified U.S. Government traffic may be provided to U.S. contractors….”

See “Release of Communications Security (COMSEC) Material To U.S. Industrial Firms Under Contract to the U.S. Navy,” OPNAVINST 2221.5C, February 7, 2007.

The decline of arms control as an instrument of policy in the Bush Administration is charted in a new report (pdf) from the Congressional Research Service, which surveys the evolution of the field over the last several decades.

“The Bush Administration has altered the role of arms control in U.S. national security policy,” the CRS report states.

“The President and many in his Administration question the degree to which arms control negotiations and formal treaties can enhance U.S. security objectives.”

“Instead, the Administration would prefer, when necessary, that the United States take unilateral military action or join in ad hoc coalitions to stem the proliferation of weapons of mass destruction.”

“The absence of confidence in arms control has extended to the State Department, where the Bush Administration has removed the phrase ‘arms control’ from all bureaus that were responsible for this policy area.”

See “Arms Control and Nonproliferation: A Catalog of Treaties and Agreements,” January 29, 2007.