SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2009, Issue No. 19
February 25, 2009

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

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AIPAC APPEALS COURT RULES AGAINST PROSECUTORS

A federal appeals court dealt another setback to prosecutors in the case of two former employees of the American Israel Public Affairs Committee (AIPAC) who are charged under the Espionage Act with improperly receiving and transmitting national defense information. The appeals court rejected a pre-trial appeal by the prosecution and affirmed the lower court rulings of Judge T.S. Ellis, III that define which classified information may be introduced at trial.

The appeals court said that the lower court had correctly assessed the relevance of two documents that the defense wished to introduce, referred to as the "FBI Report" and the "Israeli Briefing Document," and that it had properly devised substitutions for certain classified information in the documents so that they may be presented at trial.

More importantly, the new ruling left undisturbed Judge Ellis' ground-breaking interpretation of the procedural requirements of the Espionage Act. That August 2006 interpretation stated that in order for the Espionage Act to be constitutional, it must require prosecutors to show that the defendants possessed a series of "culpable mental states" and that they knowingly chose to violate the law. (See "Ruling in AIPAC Case Interprets Espionage Act Narrowly," Secrecy News, February 20, 2007.) This imposes a substantial, perhaps insurmountable burden of proof that the prosecutors must meet in order to prevail.

The new ruling counts squarely as a win for the defense. But it also includes a hint of support for the prosecutors' view that the lower court has made the Espionage Act too difficult to prosecute.

"We are ... concerned by the potential that [Judge Ellis' August 2006 ruling] imposes an additional burden on the prosecution not mandated by the governing statute," the appeals court said in a strikingly ambivalent footnote (footnote 8). That concern has no immediate legal consequences, but it suggests that the proper interpretation of the Espionage Act is not yet a settled matter.

Prosecutors have not yet indicated how they will respond to the new ruling. A new trial date may be determined at a status hearing set for February 26.

TWO NEW SERIES OF PRESIDENTIAL DIRECTIVES

The Obama Administration has launched two new series of Presidential directives on national security policy. Presidential Policy Directives (PPD) will define and direct the implementation of new presidential policies. Presidential Study Directives (PSD) will initiate policy review and development procedures.

Presidential Study Directive-1, entitled "Organizing for Homeland Security and Counterterrorism" and dated February 23, 2009, is available here:

The new PPD and PSD documents will succeed and replace directives known as National Security Presidential Directives (NSPDs) in the previous Administration.

PENTAGON OFFICIALS MUST SIGN BUDGET SECRECY PLEDGE

Department of Defense officials who are involved in preparation of the Fiscal Year 2010 budget request are required to sign a non-disclosure agreement pledging not to divulge budget-related information to unauthorized persons.

A copy of the non-disclosure agreement, which was obtained by Defense News, is available here:

In President Obama's January 20, 2009 inaugural address, he promised a new degree of transparency specifically on budget matters: "And those of use who manage the public's dollars will held to account, to spend wisely, reform bad habits and do our business in the light of day, because only then can we restore the vital trust between a people and their government."

But the light of day evidently does not extend to the budget development process, and perhaps it should not.

According to the text of the non-disclosure agreement, "a significant factor in the successful and proper preparation and completion of the President's budget is the strict confidentiality that must be observed by all government participants...[and] a failure to comply with these confidentiality requirements may compromise the Administration's ability to formulate and submit its budget."

The unstated problem is that just as secrecy can be used to conceal a skewed policy agenda, selective disclosure of budget plans can also be abused to disrupt and distort budget development. A controversial budgetary decision -- such as the cancellation of a large, expensive program -- could be undermined by early disclosure to industry lobbyists or others. Preserving a degree of confidentiality around internal budget deliberations should, at least in theory, enable the Defense Department to present its best case, before its budget is subjected to the pressures of congressional and public scrutiny.

Defense Department regulations (such as DoD Directive 7045.14, section 4.7) already prohibit the unauthorized disclosure of budget planning documents, so the policy itself is not new. But the use of non-disclosure agreements to enforce and encourage compliance with the policy appears to be without precedent.

The new non-disclosure agreement was first reported in "DoD Officials Must Vow Secrecy on Budget" by John T. Bennett, Defense News, February 19, 2009.

"We'll eliminate the no-bid contracts that have wasted billions in Iraq, and reform our defense budget so that we're not paying for Cold War-era weapons systems we don't use," President Obama told Congress last night.

"Finally, because we're also suffering from a deficit of trust, I am committed to restoring a sense of honesty and accountability to our budget. That is why this budget looks ahead ten years and accounts for spending that was left out under the old rules - and for the first time, that includes the full cost of fighting in Iraq and Afghanistan. For seven years, we have been a nation at war. No longer will we hide its price," the President said.

OSC VIEWS UPCOMING NORTH KOREA MISSILE TEST

North Korean officials confirmed on February 24 that their country is making preparations to launch a communications satellite, a move that would also constitute a new test of North Korean missile capabilities.

The DNI Open Source Center recently reviewed indications in the North Korean press that preparations for a new missile test might be underway. The OSC analysis (which pre-dated the official government confirmation of the test plans) also ventured an interpretation of the meaning of such a test.

"Almost certainly aware that a launch would be seen by the international community as provocative, Pyongyang appears to be deliberately raising the stakes, possibly the result of a calculus that envisions making headway in bilateral negotiations if it could present itself as an equal partner," the OSC analysis said.

The OSC document has not been approved for public release, but a copy was obtained by Secrecy News. See "Analysis: North Korean Media Campaign Signals Possible Near-Term Launch," February 11, 2009:

USE OF U.S. ARMED FORCES ABROAD, 1798-2008

Hundreds of times in the last 210 years, the United States has deployed its military forces in conflicts abroad, although the U.S. has only formally declared war on eleven occasions.

A newly updated tabulation of those military deployments -- which do not include covert actions, disaster relief, or military training exercises -- has recently been prepared by the Congressional Research Service. A copy of the updated report, which has not otherwise been made readily available to the public, was obtained by Secrecy News.

See "Instances of Use of United States Armed Forces Abroad, 1798-2008," February 2, 2009:

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

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