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

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RULING IN AIPAC CASE INTERPRETS ESPIONAGE ACT NARROWLY

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 case.

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. 14)

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.

NEW IC DIRECTIVE ON INTELLIGENCE ANALYSIS

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 outreach.

"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, 2007:

SELECTED CRS REPORTS

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, 2007:

"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.

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

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