Government attorneys presented a robust justification of their decision to prosecute two former officials of the American Israel Public Affairs Committee (AIPAC) for mishandling classified information in a supplemental brief (pdf) filed in the case last week.

“In the final analysis, this case is not about free speech, foreign policy lobbying, or petitioning the government,” the Government brief stated.

“This case is about the willful conduct of two defendants; two defendants who conspired to obtain national defense information, knew they had in fact obtained national defense information, knew that communicating that information to foreign agents and members of the press was illegal, and yet chose to do so anyway. The First Amendment offers no sanctuary for their criminal conduct,” the brief declared.

At a March 24 hearing, government attorneys had seemed tongue-tied and barely responsive to the probing questions of Judge T.S. Ellis III. Their March 31 brief, in contrast, is tightly argued.

Prosecutors even identified, at long last, what they said was a precedent for this unusual case. In a 1941 ruling in Gorin v. United States, the Supreme Court upheld the constitutionality of the espionage statutes in a case that, like the present one, involved “oral disclosures of national defense information to a person who was not a government employee.”

Attorneys for the defense also filed their own brief on First Amendment-related issues on March 31, but it was filed under seal and is not publicly available.

The defense had previously argued that it would be unconstitutional to criminalize oral communications involving national defense information because — unlike documents that are marked classified — oral conversations do not provide the listener any way to know which information is restricted from disclosure. Prosecutors disputed that argument.

“If oral communications of national defense information to non-government employees were to render the espionage statutes unconstitutional, this country would face a new era in which unconstrained espionage would flourish. Foreign agents and other individuals intent on obtaining the nation’s most secret information would merely need to engage in verbal discussions with their sources in order to thwart law enforcement. It is obvious that in passing the espionage statutes, Congress never intended such an absurd result.”

The Government also disputed the defense claim that the espionage statutes are impermissibly vague, and said that there are “extremely rigorous evidentiary hurdles” that protect against prosecutorial abuse.

“The willful intent requirement is a particularly strong guarantee against the unconstitutional application of Section 793 [of the Espionage Act]… By requiring the government to prove that the defendants knew their conduct was illegal, Section 793 insures that an ‘entrapped innocent’ will not fall within the statute’s confines. Section 793 is not unconstitutionally vague.”

A copy of the Government’s brief was obtained by Secrecy News.

See “Government’s Supplemental Response to Defendants’ Motion to Dismiss the Superseding Indictment,” filed March 31.

The Government’s newfound clarity about its argument hardly mitigates the First Amendment concerns raised by the case.

To the contrary, the prosecution’s theory implies that once a reporter becomes aware that the subject of a story is “national defense information,” he or she is legally obliged to desist from gathering any more information about it. To do otherwise could constitute evidence of “willful intent” to violate the Espionage Act.

As then-U.S. Attorney (now Deputy Attorney General) Paul McNulty put it last year, “Those not authorized to receive classified information must resist the temptation to acquire it, no matter what their motivation may be.”

But according to case law, “national defense information” means defense-related information that the Government has taken steps to withhold from official disclosure, even if it is not classified.

So the press and the public are free to investigate anything defense-related unless the Government has decided it should be withheld. This might work very well. In some other country.

On March 9, the President signed into law the USA Patriot Improvement and Reauthorization Act, which made permanent 14 of the 16 sections of the Patriot Act that were set to expire.

A new report from the Congressional Research Service provides a detailed, 74 page analysis (pdf) of the Act, including the various modifications made in the reauthorization process.

See “USA PATRIOT Improvement and Reauthorization Act of 2005: A Legal Analysis,” March 24, 2006.

The threat posed by organized crime networks to national security and international stability, and U.S. policy responses to the threat, are examined by the Congressional Research Service in a new report (pdf) obtained by Secrecy News.

“Starting in the 1990s with the end of the Cold War and the advent of globalization, many criminal organizations ramped up their operations and expanded them worldwide.”

“Crime networks have exploited expanding trade and financial markets, while benefitting from rapidly advancing technology, broadened international travel, and improved global communications.”

“Mainly due to its clandestine nature, international crime is hard to measure. By the most conservative estimates, criminal proceeds comprise between two and five percent of global gross domestic product (GDP).”

See “Transnational Organized Crime: Principal Threats and U.S. Responses,” March 20, 2006.

The total amount of U.S. aid to Iraq since 2003 is already comparable to post-World War II U.S. assistance to Germany and nearly double that provided to Japan, according to a new Congressional Research Service analysis (pdf).

“U.S. assistance to Germany totaled some $4.3 billion ($29.6 billion in 2005 dollars) for the years of direct military government (May 1945-May 1949) and the overlapping Marshall Plan years (1948/1949-1952).”

“Total U.S. assistance to Japan for the years of the occupation, from 1946-1952 was roughly $2.2 billion ($15.2 billion in 2005 dollars), of which almost $1.7 billion was grants and $504 million was loans.”

By comparison, “U.S. assistance to Iraq appropriated from FY2003 to FY2006 totaled some $28.9 billion.”

The CRS report is careful to note the various distinctions between the U.S. occupation of Iraq and the occupations of Germany and Japan.

For one thing, “Unlike the cases of Germany and Japan, there was no massive humanitarian crisis requiring aid in Iraq.”

On the other hand, “Iraq also faces an insurgency that deliberately sabotages the economy and reconstruction efforts, whereas there were no resistance movements in either Germany or Japan.”

CRS does not permit direct public access to its products. A copy of the new report was obtained by Secrecy News.

See “U.S. Occupation Assistance: Iraq, Germany and Japan Compared,” March 23, 2006.

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.