SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2008, Issue No. 85
September 2, 2008

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

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TO EVADE PENALTY, KEY AIPAC WITNESS SEEKS TO QUASH SUBPOENA

In an unusual maneuver designed to evade a threat of government sanction, a key defense witness in the trial of two former officials of the American Israel Public Affairs Committee (AIPAC) who are charged with mishandling classified information last week moved to quash a subpoena summoning him to testify at their upcoming trial.

J. William Leonard, the former director of the Information Security Oversight Office, indicated he was prepared to testify that the classified information at issue did not meet the standards for national security classification. If so, the defendants could not have violated the law by receiving and transmitting the information without authorization. Not only would they not be guilty, there would have been no crime.

But prosecutors objected to Mr. Leonard's testimony, arguing that he should not be permitted to appear since he briefly consulted with prosecutors about the case while he was still a government employee in 2006. In a March 31 motion, they even suggested that he could be liable to a year in jail if he testified for the defense.

In the normal course of events, government officials are sometimes threatened with sanctions if they refuse to testify in a judicial or congressional proceeding. But in the topsy-turvy world of the AIPAC case, Mr. Leonard is threatened with sanctions if he does testify.

To forestall that eventuality, Mr. Leonard was formally subpoenaed by the defense on July 25. His attorney, Mark S. Zaid, then moved to quash the subpoena on August 28, in the expectation that the court would issue an order compelling Mr. Leonard to testify. Such an order would serve to shield him against the threatened sanctions from the prosecution.

"In filing this Motion to Quash, Mr. Leonard seeks either a ruling from the Court that there is no impediment to his testifying or, alternatively, a Court Order requiring that he testify," wrote Mr. Zaid, who frequently litigates national security and classification-related cases. "Without one or the other action, Mr. Leonard will be forced to reconsider whether he can testify for the Defendants."

The August 28 motion to quash is posted here:

Selected other case files from the controversial proceeding are available here:

THE CONSTITUTION AND 9/11

The presidential campaigns have been largely silent so far regarding the post-9/11 changes in the character of American government. But those changes, documented by constitutional scholar Louis Fisher in a new book, have been profound and far-reaching, and they remain to be addressed.

"Following the terrorist attacks of September 11, 2001, the United States abandoned many of its rights and privileges for the accused, both citizens and non-citizens," Mr. Fisher writes.

"With political power concentrated in the President, executive branch officials met in secret to draft policies that supported the arrest and detention of suspected terrorists. They saw no need to make specific charges, provide counsel, or allow the accused an opportunity to examine evidence."

"Military commissions became a substitute for civil courts and courts-martial. Suspects were flown to foreign prisons for interrogation and torture. Some of the administration initiatives violated existing statutes and treaties. Once again in America, emergency powers were invoked to disregard individual rights and weaken national security," writes Mr. Fisher, a specialist at the Law Library of Congress.

For those who have not been paying attention, Mr. Fisher recounts the major departures from legal norms that have unfolded in recent years, with chapters on Guantanamo, domestic surveillance, military tribunals and state secrets. And for those who have been paying attention, the book adds a new dimension of historical understanding, tracing the precursors to current policies and their eventual repudiation. (I contributed a blurb for the book jacket.)

See "The Constitution and 9/11: Recurring Threats to America's Freedoms" by Louis Fisher, University of Kansas Press, 2008:

SOME NEW DEFENSE DEPARTMENT DOCTRINE

Noteworthy new doctrinal publications from the Department of Defense include the following.

"Operations in Chemical, Biological, Radiological, and Nuclear (CBRN) Environments," Joint Publication 3-11, August 26, 2008:

"Homeland Defense Activities Conducted by the National Guard," DoD Directive 3160.01, August 25, 2008:

"Clearance of DoD Information for Public Release," DoD Directive 5230.09, August 22, 2008:

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

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