from the FAS Project on Government Secrecy
Volume 2006, Issue No. 30
March 6, 2006

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The most troubling aspect of the prosecution of two former employees of the American Israel Public Affairs Committee (AIPAC) for mishandling classified information is that prosecutors have adopted an expansive new interpretation of the Espionage Act which could make criminals of many reporters, lobbyists and advocates who traffic in government information that may be classified.

But another worrisome feature of the case is that one of the AIPAC defendants is charged under a separate statute -- 18 U.S.C. 2 -- with "aiding and abetting" an unauthorized disclosure of information.

(18 U.S.C. 2 states that "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.")

The use of this "aiding and abetting" statute multiplies the impact of the government's new theory of the Espionage Act since it means that anyone who facilitates or encourages the disclosure of proscribed information -- as reporters and many others do in the course of their daily activities -- is as culpable as the one who discloses classified information without authorization.

"It's called being an 'accessory before the fact'," observed former CIA analyst Allen Thomson, who flagged the use of this provision in the AIPAC prosecution. He cited a law dictionary definition which explained that "an accessory before the fact is one whose counsel or instigation leads another to commit a crime."

Punishing the solicitation or acquisition of restricted information could obviously be an effective way to discourage press attention to matters that the government wishes to conceal.

On the other hand, Mr. Thomson conjectured, the government's "use of 18 USC 2 against [AIPAC defendant Steven J.] Rosen ... might provide reporters with a Fifth Amendment basis for refusing to talk to grand juries" since they could run the risk of self-incrimination. Any such Fifth Amendment claim could be defeated by a grant of immunity, however.

See, relatedly, "Pro-Israel Lobbying Group Roiled by Prosecution of Two Ex-Officials" by Scott Shane and David Johnston, New York Times, March 5:


"In my professional opinion, the NSA domestic surveillance program is as blatantly illegal a program as I've seen," said Prof. Harold Hongju Koh, dean of the Yale Law School, at a Senate Judiciary Committee hearing on February 28.

Others disagreed. "I believe that the inherent authority of the president under Article II, under these circumstances, permits the types of intercepts that are being undertaken," said former DCI R. James Woolsey.

The opening statements from the February 28 hearing on "Wartime Executive Power and the NSA's Surveillance Authority" may be found here:

The view that the NSA surveillance activity is illegal was elaborated in a legal memorandum that was presented to the Foreign Intelligence Surveillance Court last week by the Center for National Security Studies and the Constitution Project. See:

Also last week, Sen. Robert Byrd (D-WV) introduced legislation to establish "to investigate the instances of warrantless wiretapping and spying on U.S. citizens by the National Security Agency and other departments of Government."

See his March 2 introductory statement and the text of his bill here:


The constant administrative churning of the defense policy process has yielded several notable new Department of Defense directives and instructions, such as the following.

U.S. policy on handling classified NATO information is addressed in "United States Security Authority for North Atlantic Treaty Organization Affairs," DoD Directive 5100.55, February 27, 2006:

Continuity of military operations "under all circumstances across the spectrum of threats" is prescribed in "Defense Continuity Plan Development," DoD Instruction 3020.42, February 17, 2006:

An updated Instruction entitled "Technical Surveillance Countermeasures (TSCM) Program" was issued by Under Secretary of Defense for Intelligence Stephen A. Cambone on February 22, 2006:


"I am increasingly concerned that the Senate Intelligence Committee is unable to carry out its critically important oversight and threat assessment responsibilities due to stifling partisanship that is exhibited through repeated calls by Democrats on the committee to conduct politically-motivated investigations," wrote Senate Majority Leader Bill Frist in a March 3 letter to Minority Leader Sen. Harry Reid.

"I agree with Senator Frist," Senator Reid replied, "the Republican-controlled Senate Intelligence Committee has been bogged down by partisanship."

"When faced with strong evidence that the Bush Administration has misused intelligence..., time and again the Senate Intelligence Committee has ducked its responsibilities and refused to hold the Administration accountable. The recent record of the Republican-controlled committee is most notable for its abdication of authority and responsibility," Sen. Reid said.

The Senate Intelligence Committee is scheduled to vote on March 7 on a proposal by Senator Rockefeller to conduct an investigation of the NSA warrantless surveillance activity. An investigation is favored by Democrats and some Republicans, but opposed by the Republican leadership.


Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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