SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2007, Issue No. 114
November 26, 2007

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AIPAC COURT RULES ON CLASSIFICATION MARKINGS, JUROR BIAS

Classification markings will be removed from classified documents that are admitted into evidence in the upcoming trial of two former officials of the American Israel Public Affairs Committee (AIPAC), a court ruled earlier this month. The former AIPAC officials, Steven J. Rosen and Keith Weissman, are accused of unauthorized receipt and disclosure of classified information.

"To see this onslaught of documents marked Secret, Top Secret, NOFORN -- it creates an atmosphere that is just unfair," said Judge T.S. Ellis, III at a November 8 hearing.

"I find that looking at this mass of documents, as I have, with all of these prominent inch-and-a-half stamps of Secret, Secret, creates I think unfair prejudice [and] likelihood of confusion with the jury."

A legal issue arises because such classification markings "have both [inadmissible] hearsay and [admissible] nonhearsay purposes," he said.

The legitimate nonhearsay purpose is that the markings "show that the Government intended that this be closely held information."

However, to the extent that the markings indicate the classifier's "opinion as to whether disclosure of this material would be damaging to the national interest, that's clearly hearsay" and is impermissible, particularly since the classifier is not present at trial.

After discussing the issue at length, Judge Ellis ruled that "the bold, large classified markings for any documents that are admitted will be removed." Instead, there will be a stipulation by the parties that the documents were classified and the judge will instruct the jury to consider classification status only for the purpose of determining whether the information was closely held or not.

The November 8 hearing also considered the question of juror bias.

"There are very significant problems with selecting a jury in this case owing to the nature of the case and owing to the publicity that this case has been accorded," Judge Ellis said, noting "that there may be an animus in prospective jurors that should not be operating. And of course, I am referring to anti-Semitism."

He asked the parties to draft a questionnaire for use in the jury selection process.

"You don't ask people, are you an anti-Semite and expect to get a straightforward answer. But I leave to you how that can be reasonably explored," he said.

A related legal question that remains unresolved is whether potential jurors can be dismissed peremptorily based on their religion or ethnicity.

"In other words, can the Government strike someone [from the jury] just because his name ends in Stein or whatever, or can the defense strike somebody because his name is Mohammed," Judge Ellis said.

The transcript of the November 8 hearing is not in the PACER system of online federal court records, but a copy was obtained by Secrecy News. See:

The trial, which has been repeatedly postponed, will not take place before March 2008.

INTELLIGENCE OVERSIGHT DEFLECTED BY APPROPRIATORS

The efficacy of intelligence oversight in the Senate has been repeatedly undermined by procedural hurdles that enable the Defense Appropriations Subcommittee to overrule actions taken by the Senate Intelligence Committee, Senators complained earlier this month. To remedy this concern, a new bill has been introduced that would transfer budget appropriations authority to the Intelligence Committee.

This year, the Senate Intelligence Committee presented "four major oversight initiatives in its [authorization] bill," said Sen. Christopher S. Bond (R-MO) at a Committee hearing on November 13. But in each case, "actions by the appropriations committee were completely dissimilar."

A Memorandum of Agreement between the Committees that was supposed to improve coordination between the authorizers and the appropriators has failed in every significant respect, he said.

In a written statement, Sen. Bond referred obliquely to several attempted actions by the Intelligence Committee that had been overridden by appropriators to the detriment of national policy.

For example, because of resistance from appropriators, "It took until recent time to end a program that, at the least, should have been terminated a few years ago. Unfortunately, all told, the loss to the taxpayers is astronomical, in the billions of dollars." This appears to be a reference to the Future Imagery Architecture MISTY satellite program (thanks to Jeff Richelson for the correction).

See Senator Bond's November 13 statement here:

Related statements and testimony from the SSCI hearing on intelligence oversight are here:

The proposed Senate Resolution 375 that would grant appropriation authority to the Intelligence Committee is here:

The recent decision to declassify the annual budget of the National Intelligence Program now makes it possible to remove the intelligence budget from concealment in the defense budget and to appropriate it independently, thereby strengthening oversight and accountability.

For this and other reasons, budget declassification is the most important involuntary public disclosure of intelligence information at least since declassification of the August 6, 2001 President's Daily Brief item "Bin Laden Determined to Strike in U.S."

But significantly, the intelligence oversight committees, which have been criticized for ineffective leadership on several controversial policy fronts, did not play a leading role in intelligence budget disclosure either.

WEAK AND FAILING STATES, AND MORE FROM CRS

Noteworthy new reports from the Congressional Research Service obtained by Secrecy News include the following.

"Weak and Failing States: Evolving Security Threats and U.S. Policy," November 15, 2007:

"Pakistan's Nuclear Weapons: Proliferation and Security Issues," updated November 14, 2007:

"The Cost of Iraq, Afghanistan, and Other Global War on Terror Operations Since 9/11," updated November 9, 2007:

"Judicial Security: Responsibilities and Current Issues," updated November 13, 2007:

"Pandemic Influenza: An Analysis of State Preparedness and Response Plans," September 24, 2007:

"The Public Health and Medical Response to Disasters: Federal Authority and Funding," September 19, 2007:

OPEN SOURCE CENTER VIEWS MAFIA TURMOIL

Italian news reports regarding upheaval in the organization of the Sicilian mafia were synthesized and summarized in a new analysis from the Open Source Center, a component of the Office of the Director of National Intelligence.

"The recent arrest of mafia fugitive Salvatore Lo Piccolo and the April 2006 capture of Bernardo Provenzano, the Sicilian mafia's 'boss of bosses,' have highlighted the succession challenge over the position of top boss within the organization."

"Open source reporting suggests that the ensuing power struggle, following Provenzano's arrest, led not only to increased violence in Sicily but also to likely renewed cooperation between the Sicilian mafia and the US-based Gambino family. Their growing relationship may open new possibilities for the Sicilian mafia to launder money through US institutions."

See "Changes in Mafia Leadership Reveal New Links to US-Based La Cosa Nostra," DNI Open Source Center, November 19, 2007:

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

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