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Secrecy News -- 02/20/07

From: Steven Aftergood <saftergood.nul>
Date: Tue, 20 Feb 2007 10:55:01 -0500
Fwd Date: Wed, 21 Feb 2007 07:59:55 -0500
Subject: Secrecy News -- 02/20/07

from the FAS Project on Government Secrecy
Volume 2007, Issue No. 20
February 20, 2007

Secrecy News Blog: http://www.fas.org/blog/secrecy/

Support Secrecy News:



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, 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 (at page 8)
that reiterates and expands upon the requirements first spelled
out in his August 2006 order denying a motion to dismiss the

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.

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 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 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

"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,



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

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


"NATO's Prague Capabilities Commitment," updated January 24,


"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.

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

To SUBSCRIBE to Secrecy News, send email to
with "subscribe" in the body of the message.

OR email your request to saftergood.nul

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Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: www.fas.org/sgp/index.html
email: saftergood.nul
voice: (202) 454-4691

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