SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2008, Issue No. 38
April 16, 2008

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

AIPAC DEFENDANTS SAY TESTIMONY FROM ISOO'S LEONARD IS CRUCIAL

Testimony from classification expert J. William Leonard, the former director of the Information Security Oversight Office, will "seriously undercut the government's case" against two former officials of the American Israel Public Affairs Committee (AIPAC) who are charged with unlawful receipt and transmission of classified information, defense attorneys argued in a dramatic new pleading urging that he be allowed to testify.

Prosecutors oppose Mr. Leonard's testimony, saying it is precluded by his prior contacts with the prosecution.

The closely-watched AIPAC case is the first time that the government has ever used the espionage statutes to prosecute private citizens -- pro-Israel lobbyists in this case -- for receiving classified information to which they were not entitled and then communicating it to others.

"Mr. Leonard's expert testimony is critical to the defense," the defense pleading stated. "As the government's former 'Classification Czar,' he has unsurpassed expertise in the issues involved in this case, and his insights into how and why the government classifies, protects, and discloses sensitive information squarely refute the prosecution's theory of the case."

The government has opposed Mr. Leonard's testimony (Secrecy News, April 7), citing a meeting he had in 2006 with prosecutors regarding the case while he was still a government employee and was being considered as a witness for the prosecution.

("My impression from the interview was that they did not like what I had to say, especially about over-classification, and decided not to use me as an expert," Mr. Leonard stated in an affidavit.)

For him to now testify as a defense witness, prosecutors argued, would be a violation of the Ethics in Government Act and, they insinuated, could even put him at risk of criminal prosecution.

To resolve any lingering legal uncertainty, the defense asked the court to issue an order authorizing Mr. Leonard to testify.

"Mr. Leonard has carefully examined the classified information at issue in this case," the defense filing indicated. If and when he is permitted to appear, Mr. Leonard will testify "that information disclosed in this case could not damage national security, was not closely held, and was not demonstrably classified."

Further, Mr. Leonard will testify "that high level government officials frequently disclose information contained in classified documents for the purpose of advancing national security interests instead of harming them," and that "the defendants reasonably could have believed that their conduct was appropriate."

"Given Mr. Leonard's unsurpassed expertise, his testimony is likely to impact the outcome of the trial," the defense said.

However, defendants need an order from the court "to ensure that Mr. Leonard can testify safely, particularly in light of the government's shot across the bow regarding Mr. Leonard's potential criminal liability [if he testifies for the defense]."

See the Defendants' Reply to the Government's Opposition to the Expert Witness Testimony of J. William Leonard, April 11, 2008:

Among the potential expert witnesses for the prosecution is William McNair, a former Information Review Officer at the Central Intelligence Agency known for his conservative approach to declassification and disclosure.

A pre-trial appeal of several district court rulings in the AIPAC case has been filed by the government, as well as a cross-appeal filed by the defense. This month's anticipated trial was postponed and no new trial date has been set.

MCCAIN ADMITS POSSIBILITY OF GOOD "LEAKS"

Some unauthorized disclosures of classified information in the press can serve a constructive purpose, Sen. John McCain allowed. And so he expressed support for a pending press "shield" law that would increase reporters' legal protection against compulsory disclosure of their confidential sources.

"Despite concerns I have about the legislation, I have narrowly decided to support it," he told the Associated Press Annual Meeting on April 14.

The bill, the Free Flow of Information Act, is co-sponsored by Sen. Barack Obama and has also been endorsed by Sen. Hillary Clinton. But Sen. McCain's support is noteworthy because it places him directly at odds with the Bush Administration, which strongly opposes the measure.

Even more interesting is the way in which McCain framed the issue.

"The shield law is, frankly, a license to do harm, perhaps serious harm. But it is also a license to do good; to disclose injustice and unlawfulness and inequities; and to encourage their swift correction."

"I know that the press that disclosed security secrets that should have remained so also revealed the disgrace of Abu Ghraib."

In other words, according to Sen. McCain, there are bad leaks of classified information and there are good leaks of classified information. (The leaked Army investigative report on Abu Ghraib was classified Secret).

This comparatively nuanced view of unauthorized disclosures is a significant departure from the Bush Administration's categorical view that any disclosure of classified information is unacceptable. And it provides some common ground for considering both disclosure and voluntary non-disclosure of classified information by the press.

The text of Sen. McCain's April 14 speech is here:

The Washington Post editorialized today in favor of the press shield bill, which is also supported by press advocacy organizations such as the Reporters Committee for Freedom of the Press. Jack Shafer in Slate.com demurred.

NIEMAN REPORTS: 21ST CENTURY MUCKRAKERS

The latest edition of Nieman Reports, the quarterly magazine of the Nieman Foundation for Journalism at Harvard, is devoted to the subject of "21st Century Muckrakers: Who Are They? How Do They Do Their Work?"

It's a meaty and highly readable issue. I contributed a piece on "Secrecy vs. Citizenship." Ted Gup, author of the recent book "Nation of Secrets," has another piece on "Investigative Reporting About Secrecy." Walter Pincus of the Washington Post wrote "Secrets and the Press," a review of the Gup book. And there's a lot more.

See the latest Nieman Reports, edited by Melissa Ludtke, here:

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

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