SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 90
August 14, 2006

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

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AIPAC DEFENDANTS DID NOT SEEK CLASSIFIED DOCUMENT, COURT RULES

In a favorable decision for two former officials of the American Israel Public Affairs Committee who are charged with conspiracy to unlawfully gather national defense information, a federal court ruled late last week that they did not solicit actual classified documents and that the government cannot now claim that they did.

The latest decision follows an earlier ruling last week that denied the defendants' motion to dismiss the case altogether.

The only document that was solicited by the defendants was described in their August 2005 indictment as "not classified."

"Significantly, this is the only overt act in which one of the defendants is alleged to have requested a document from a government official," the court noted in the new ruling.

"While defendants are alleged to have discussed classified information with government officials, including information contained in classified documents, the superseding indictment does not allege that either [defendants] Rosen or Weissman ever sought an actual copy of any classified document from a government official," the court noted.

But lately, the prosecution has changed its position and now wants to argue that the requested document was in fact classified after all.

The court said no. To make such a claim at this stage is not permissible since it "alters an essential fact alleged in the superseding indictment" and would therefore be unconstitutional.

The August 11 ruling by Judge T.S. Ellis, III, was first reported today by the New York Sun. See a copy of the decision here:

While advantageous to the defendants, the new ruling underscores the radical implications of this unprecedented case.

The upshot of the court's interpretation is that the defendants (or anyone else) may be guilty of violating the Espionage Act even if they did not solicit classified "documents," but only "information." More than that, they may violate the Act even if the information they gather is not classified, as long as it is "related to the national defense" and closely held by the government.

"Although not strictly necessary, nor always sufficient, the classification of information is highly probative of whether it is, in fact, 'information related to the national defense' such that a defendant could be prosecuted for its unauthorized disclosure," the latest ruling said.

This is a crucial observation.

Classification may "not [be] strictly necessary" to justify prosecution of unauthorized disclosures (including disclosures by non-governmental persons such as the defendants) since, the Court affirmed, there are various kinds of unclassified, national defense-related information that are protected by the Espionage Act.

(On the other hand, mere classification may not be "sufficient" to render information protected by the specific terms of the Espionage Act because there are some kinds of classified information, e.g. some diplomatic or intelligence information, that are plainly not related to "national defense.")

I discussed some of the implications of the AIPAC case on the NPR program On the Media this week ("No Secrets Allowed"):

Although Lebanon has one or two other things to worry about these days, word of last week's decision in the AIPAC case was even featured in the Lebanese news outlet Ya Libnan, datelined "Beirut and Washington" (based on a Washington Post story by Jerry Markon):

MANPADS REPORT WITHDRAWN FROM FAS WEB SITE

A July 31 Department of Homeland Security report to Congress on the status of defenses against shoulder-fired anti-aircraft missiles was removed from the Federation of American Scientists web site after DHS objected to its publication.

DHS urged that the unclassified report, marked "For Official Use Only," be taken offline and, upon consideration, we agreed to do so.

"The Report has never been released by DHS to the public because it contains sensitive information such as the transition of military technology for potential civil use, systems performance of the prototype systems being developed by DHS and its partners, and the reliability of such prototype systems," wrote DHS deputy associate general counsel William H. Anderson.

"Due to the sensitive nature of the Report, I request that your organization immediately remove the Report from its website."

"If the Report is not removed from your website within 2 business days, we will consider further appropriate actions necessary to protect the information contained in the Report," Mr. Anderson wrote. See his August 9 letter here:

"You took it offline? I'm surprised," said one Congressional staffer who obtained the DHS report to Congress via FAS.

He said that executive branch restrictions on unclassified information had become a growing hindrance to Congressional oversight. If the document is really sensitive, he suggested, "it should be classified."

Our intention is to review the document in light of the concerns expressed by DHS. Following such review, the document or portions of it may be restored to our web site.

A POSTSCRIPT ON MOBILE IRAQI BW LABS

Did U.S. intelligence analysts actually "replicate" the mobile biological weapons laboratories that were supposedly deployed by Saddam Hussein, as stated in the Silberman-Robb Commission report?

Arms control expert Milton Leitenberg of the University of Maryland posed this question earlier this year (Secrecy News, 06/29/06).

Based on his own investigations, he has now concluded that there was no such replication of the supposed mobile BW labs.

"No mock-up containing the pieces of equipment shown in the drawings appears to have been produced, and no biological agent or simulant was produced."

"Apparently the drawings [used in Secretary Powell's 2003 UN presentation] were all that was ever prepared."

"These self-conceived and self-imagined illustrations were all the 'evidence' that the United States government had to give to Secretary of State Powell to place before the United Nations and the world to support the claim that Iraq had mobile biological weapon production platforms...," Dr. Leitenberg wrote.

See "Further Information Regarding US Government Attribution of a Mobile Biological Production Capacity by Iraq" by Milton Leitenberg, August 2006:

NASRALLAH: A SELF-PORTRAIT

"I have been reading [former Israeli Prime Minister Ariel] Sharon's biography for a while now, and I am going to read the book again."

So said Hizbollah leader Hasan Nasrallah in an autobiographical note published last week in a Tehran magazine.

In a discussion of his political objectives, he seemed to exclude the possibility of establishing an Islamic Republic in Lebanon.

"Establishing an Islamic Republic is not possible with force and resistance. It requires a national referendum. A referendum that wins 51 percent of the vote is still not the solution. What it needs is a referendum for which 90 percent of the people vote."

But about 40% of the Lebanese population is Christian.

"Hence, with this assumption, and in view of the status quo, establishing an Islamic Republic system in Lebanon is not possible at the present time," he said.

See "Seyyed Hasan Nasrallah's Autobiography," Ya Lesarat Ol-Hoseyn (Tehran), translated by the DNI Open Source Center, August 10:

In a recent U.S. Treasury Department tabulation of hundreds of terrorist and criminal organizations and individuals, Nasrallah is listed with his passport number and date of birth -- August 31. But for some reason his year of birth is given variously as 1953, 1955, 1958 or 1960 (noticed by Amir Oren of Haaretz):

Most news accounts indicate that his year of birth is 1960, though some suggest, probably incorrectly, that he has already turned 46.

ARMY ISSUES NEW REGS FOR UNMANNED AERIAL SYSTEMS

The U.S. Army has updated its regulations governing unmanned aircraft system operations.

See "Unmanned Aircraft System Flight Regulations," U.S. Army Regulation 95-23, 7 August 2006:

TIME OUT

Secrecy News will resume publication the week of August 28.

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

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