from the FAS Project on Government Secrecy
Volume 2006, Issue No. 23
February 20, 2006

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In its prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC), the Bush Administration is staking out new legal territory, arguing that it is a crime for a reporter or any other non-government employee who does not hold a security clearance to receive and communicate classified information.

"The government respectfully submits that an 'ordinary person exercising ordinary common sense' [...] would know that foreign officials, journalists and other persons with no current affiliation with the United States government would not be entitled to receive information related to our national defense," according to the government's January 30 response to a motion to dismiss filed by the AIPAC defendants.

This is a novel view of the press and the American public.

The idea that the government can penalize the receipt of proscribed information, and not just its unauthorized disclosure, is one that characterizes authoritarian societies, not mature democracies.

The government bases its position on a narrow reading of the Espionage Act of 1917 (18 U.S.C. 793), which prohibits certain communications of national defense information by "whoever" may do so.

"There plainly is no exemption in the statutes for the press, let alone lobbyists like the defendants," the government said.

Prosecution of a member of the press "would raise legitimate and serious issues and would not be undertaken lightly," the government volunteered. But the AIPAC defendants "are not members of the press and enjoy no constitutional rights reserved to the press."

Of course, anyone who commits espionage should expect to be prosecuted for that crime. But that is not the issue in the AIPAC case, where the government seeks to penalize the non-espionage transmission of information that it considers classified.

"Whether a defendant was an agent of a foreign government is not relevant. The statute applies to any person, whether they are acting as an agent, or acting on their own," the government said.

This is precisely what makes the AIPAC case a matter of broad public consequence. The prosecution's expansive interpretation of the Espionage Act potentially applies to every American, indeed every person in the world ("anyone"), not just accused spies.

"The fact that the defendants were not agents of Israel, or any foreign nation, does not negate any element of the offense, and cannot be exculpatory."

See "Government's Consolidated Responses to Defendants' Pretrial Motions," United States of America v. Steven J. Rosen and Keith Weissman, filed January 30, 2006:

A closed hearing on the motions was held on February 16 and will resume on March 2.


It is important to understand that there is no rigorous, consensual definition of what constitutes classified information. Instead, in a practical sense, classified information is whatever the executive branch says it is.

(A minority of classified information, such as nuclear weapons design information, is specified and protected by statute. The remainder, the large majority, is classified by executive order.)

In 1997, the Central Intelligence Agency declassified the total intelligence budget for that year ($26.6 billion). But intelligence budget figures from three, four and five decades earlier remain classified. Why? Because the CIA says so!

One might argue that it should be the other way around -- budget figures from the remote past should be declassified while more recent figures should perhaps be classified. But such logic is foreign to CIA classification policy, and to the classification system as a whole.

By far the most sensitive government document Secrecy News has obtained in recent years is a January 2006 military manual that explains in nearly 200 pages of detail exactly how to use a particular type of weapon that is known to pose a significant threat in the hands of terrorists.

If there is anything that should be classified in the interests of national security, this manual would seem to be it. Yet it is unclassified. Distribution is "unlimited."

The conclusion that emerges from the chaos of government information policy is that the classification system is essentially an administrative tool used by the executive branch for its own internal purposes. It is a poor index of what is sensitive and what is not.


On February 16, Senate Intelligence Committee Vice Chairman Sen. Jay Rockefeller presented a proposal to investigate the National Security Agency warrantless surveillance program.

A copy of Sen. Rockefeller's motion, outlining the scope of the proposed investigation, is here:

But Committee chairman Sen. Pat Roberts blocked a vote on the motion until March 7.

"If, by that time, we have reached no detailed accommodation with the Administration concerning the Committee's oversight role, it is possible that the Committee may vote to conduct an inquiry into the program," Sen. Roberts said.

"If we are prevented from fully understanding and evaluating the NSA program, our committee will continue its slide into irrelevance," said Sen. Rockefeller.

"Like Senator Rockefeller, I will not sit idly by and allow the President's possible breaking of the law to be swept under the rug," said Sen. Robert Byrd in a February 17 floor statement.

"I am today announcing my intention to submit to the Congress legislation that will establish a nonpartisan, independent, 9-11-style commission to investigate and determine the legality of the President's actions," Sen. Byrd said.


"Selectively applied, the declassification process can become political and sleazy," according to an editorial in the Buffalo News.

See "Cheney misuses expanded powers," Buffalo News, February 18:

The spectrum of opinion and analysis on the Vice President's declassification authority was surveyed in "Cheney's Secret Powers" by Dan Froomkin, White House Briefing, February 17:

"Another House Republican committee chairman has joined criticism of the Congressional Research Service for its legal analysis of the administration's program of counterterrorist electronic surveillance."

See "Lawmaker hits wiretap memo" by Shaun Waterman, UPI/Washington Times, February 20:


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

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