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.

Some more notable new reports from the Congressional Research Service are the following.

“Material Support of Terrorists and Foreign Terrorist Organizations: Sunset Amendments in Brief,” updated March 17, 2006.

“Tactical Aircraft Modernization: Issues for Congress,” updated March 16, 2006.

“Syria: U.S. Relations and Bilateral Issues,” updated March 13, 2006.

“AIDS in Africa,” updated March 9, 2006.

“Internet Development and Information Control in the People’s Republic of China,” February 10, 2006.

The U.S. Army has issued a new manual (large pdf) on unmanned aerial systems (UAS), which are increasingly used in a wide spectrum of reconnaissance, surveillance and targeting missions.

UAS include what were formerly referred to as unmanned aerial vehicles (UAVs), plus their payloads and support systems.

The new Army manual includes fresh information on Army UAS programs and operations.

A copy of the unclassified manual was obtained by Secrecy News.

See “Army Unmanned Aircraft System Operations,” Field Manual Interim FMI 3-04.155, dated 4 April 2006 (183 pages in a large 9 MB PDF file).

Dr. Thomas C. Butler is one of the rather few people in the history of humanity of whom it can be truly said that he helped to save millions of lives. A specialist in the plague and other infectious diseases, his research helped lead to the adoption of oral hydration as a standard treatment for diarrhea in the Third World and elsewhere.

But in post-9/11 America, Dr. Butler is also a convicted criminal.

Because he apparently committed certain violations of the laws governing the transport of toxic materials used in his medical research, he was investigated and prosecuted as if he were a potential terrorist. In 2004, he was sentenced to a term of two years in prison, which he recently completed.

The strange tale of Dr. Butler is explored this week in an exhaustive seven-part series in the Cleveland Plain Dealer beginning March 26.

See “Plagued by Fear” reported by John Mangels.

Some related material in support of Dr. Butler is available from the Federation of American Scientists.

Judge John D. Bates was appointed last month by Chief Justice John Roberts to serve on the Foreign Intelligence Surveillance Court.

Judge Bates of the D.C. District is the eleventh member of the secretive Court, which processes applications for domestic intelligence search and surveillance under the Foreign Intelligence Surveillance Act of 1978.

He replaces Judge James Robertson who resigned in December 2005 in what was widely viewed as a protest against the President’s warrantless surveillance program.

The appointment of Judge Bates to the FISA Court has not previously been reported.

When questioned by Secrecy News earlier this week, Justice Department officials refused to divulge the name of the newest FISA Court judge. The Justice officials suggested filing a Freedom of Information Act request.

But Judge Bates himself disclosed the February 2006 appointment in his online bio at the D.C. District Courthouse (thanks to S).

Judge Bates, a Republican appointee, has a distinctly conservative cast to his resume. From 1995-1997, he served as Deputy Independent Counsel to the intensely partisan Whitewater investigation. In 2002, he dismissed (pdf) a lawsuit brought by the congressional General Accounting Office seeking disclosure of records of the Vice President’s Energy Task Force.

But he has also ruled occasionally in favor of Freedom of Information Act litigants. And in 2004, he rejected the Bush Administration’s argument that a U.S. citizen detained abroad under U.S. control cannot invoke habeas corpus.

“The Court concludes that a citizen cannot be so easily separated from his constitutional rights,” Judge Bates memorably ruled (pdf) in Abu Ali v. John Ashcroft.

An FAS roster of FISA Court judges, now including Judge Bates, can be found here.

The Department of Energy has released a redacted version of its twentieth report on inadvertent releases (pdf) of classified nuclear weapons information found in declassified records at the National Archives. Upon examination of nearly 300,000 pages of public records, reviewers found 47 pages which they said should not have been released. Those pages were embedded in over a thousand pages of documents, all of which were removed from public access.

The defense contractor Sikorsky Aircraft has sued the Defense Department in an effort to block disclosure under the Freedom of Information Act of what it considers confidential commercial information, the Project on Government Oversight reported on its blog.

The record of a September 2005 Senate Judiciary Committee hearing on “ABLE DANGER and Intelligence Information Sharing” has recently been published.

The U.S. military must be prepared to respond to a deliberate or inadvertent incident occurring abroad that involves chemical, biological, radiological, nuclear, or high-yield explosives (CBRNE). Department of Defense Instruction 2000.21 on “Foreign Consequence Management,” (pdf) March 10, 2006, sets DoD policy on the subject.

Judge Frederick J. Scullin, Jr. of the Southern Northern District of New York was identified last week as a member of the Foreign Intelligence Surveillance Court, which was established by the Foreign Intelligence Surveillance Act of 1978 to provide judicial authorization for intelligence search and surveillance activities within the United States.

Although Judge Scullin was appointed to the FISA Court in 2004, his name had not previously appeared in news stories about the Court or in published lists of its current membership, such as this one (now updated).

Judge Scullin, who recently retired from the District Court in New York (but not from the FISA Court), acknowledged his membership in the secretive surveillance court in interviews with the Syracuse Post-Standard (March 17) and the Albany Times Union (March 14).

Another new FISA Court judge has presumably been appointed by Chief Justice Roberts to replace Judge James Robertson, who resigned from the FISA Court in December 2005 in what was reported to be an expression of protest against the President’s warrantless surveillance program, which circumvented the FIS Court.

But officials at the Justice Department Office of Intelligence Policy and Review said they would not disclose the identity of the latest appointment to the FISA Court except in response to a Freedom of Information Act request. Such a request was duly filed.

See, relatedly, the updated FISA Court Rules of Procedure (pdf), effective February 17, 2006.

The website freedominfo.org, sponsored by the National Security Archive, has produced a splendid new catalog of freedom of information laws in some 60 countries around the world, with links to underlying statutes and related background information (flagged by BeSpacific.com).

“For the first time, the National Archives and Records Administration has made available online more than 400,000 State Department telegrams and other records for 1973 and 1974,” according to a NARA news release yesterday.

Secrecy News has been named “resource of the week” (thanks) by ResourceShelf.com, which provides a daily survey of news, documents and tools for information professionals.

Rep. Bob Ney (R-OH), the most outspoken opponent of proposals to permit direct public access to Congressional Research Service reports, recently lost his chairmanship of the House Administration Committee in the initial fallout of the unfolding corruption scandals in Congress.

But it is unclear whether his sensible successor, Rep. Vernon Ehlers (R-CA) (R-Mich.), will be any more amenable to online public access to CRS products. It may be that this inevitable step will have to await the election of a whole new Congress that actually values public access to government information.

In the meantime, members of the public can get their CRS fix from “unauthorized” sources.

In addition to the FAS archive of CRS reports, there are rich complementary collections at the State Department’s Foreign Press Center and at CDT’s OpenCRS.com, among others.

Here are some notable new or recently updated CRS reports from FAS that are not available from those other sites.

“Balancing Scientific Publication and National Security Concerns: Issues for Congress,” updated February 2, 2006.

“National Emergency Powers,” updated February 10, 2006.

“Jordan: U.S. Relations and Bilateral Issues,” updated March 14, 2006.

“Global Climate Change: Federal Research on Possible Human Health Effects,” updated February 10, 2006.

“‘Bunker Busters’: Robust Nuclear Earth Penetrator Issues, FY2005-FY 2007,” updated February 21, 2006.

“The Exon-Florio National Security Test for Foreign Investment,” updated March 15, 2006.

“Military Retirement: Major Legislative Issues,” updated March 14, 2006.

“Navy Attack Submarine Force-Level Goal and Procurement Rate: Background and Issues for Congress,” updated January 18, 2006.

“Navy DD(X), CG(X) and LCS Ship Acquisition Programs: Oversight Issues and Options for Congress,” updated March 7, 2006.

“Improvised Explosive Devices (IEDs) in Iraq: Effects and Countermeasures,” February 10, 2006.