[Intelforum] Secrecy News -- 08/14/06 (IF)
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from the FAS Project on Government Secrecy
Volume 2006, Issue No. 90
August 14, 2006
Secrecy News Blog: http://www.fas.org/blog/secrecy/
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** AIPAC DEFENDANTS DID NOT SEEK CLASSIFIED DOCUMENT, COURT RULES
** MANPADS REPORT WITHDRAWN FROM FAS WEB SITE
** A POSTSCRIPT ON MOBILE IRAQI BW LABS
** NASRALLAH: A SELF-PORTRAIT
** ARMY ISSUES NEW REGS FOR UNMANNED AERIAL SYSTEMS
** TIME OUT
AIPAC DEFENDANTS DID NOT SEEK CLASSIFIED DOCUMENT, COURT RULES
In a favorable decision for two former officials of the American
Israel Public Affairs Committee who are charged with conspiracy to
unlawfully gather national defense information, a federal court ruled
late last week that they did not solicit actual classified documents
and that the government cannot now claim that they did.
The latest decision follows an earlier ruling last week that denied
the defendants' motion to dismiss the case altogether.
The only document that was solicited by the defendants was described
in their August 2005 indictment as "not classified."
"Significantly, this is the only overt act in which one of the
defendants is alleged to have requested a document from a government
official," the court noted in the new ruling.
"While defendants are alleged to have discussed classified information
with government officials, including information contained in
classified documents, the superseding indictment does not allege that
either [defendants] Rosen or Weissman ever sought an actual copy of
any classified document from a government official," the court noted.
But lately, the prosecution has changed its position and now wants to
argue that the requested document was in fact classified after all.
The court said no. To make such a claim at this stage is not
permissible since it "alters an essential fact alleged in the
superseding indictment" and would therefore be unconstitutional.
The August 11 ruling by Judge T.S. Ellis, III, was first reported
today by the New York Sun. See a copy of the decision here:
While advantageous to the defendants, the new ruling underscores the
radical implications of this unprecedented case.
The upshot of the court's interpretation is that the defendants (or
anyone else) may be guilty of violating the Espionage Act even if
they did not solicit classified "documents," but only "information."
And not only that, the "information" they gather need not be
classified, as long as it is "related to the national defense" and
closely held by the government.
"Although not strictly necessary, nor always sufficient, the
classification of information is highly probative of whether it is,
in fact, 'information related to the national defense' such that a
defendant could be prosecuted for its unauthorized disclosure," the
latest ruling said.
This is a crucial observation.
Classification may "not [be] strictly necessary" to justify
prosecution of unauthorized disclosures (including disclosures by
non-governmental persons such as the defendants) since, the Court
affirmed, there are various kinds of unclassified, national
defense-related information that are protected by the Espionage Act.
(On the other hand, mere classification may not be "sufficient" to
render information protected by the specific terms of the Espionage
Act because there are some kinds of classified information, e.g. some
diplomatic or intelligence information, that are plainly not related
to "national defense.")
I discussed some of the implications of the AIPAC case on the NPR
program On the Media this week ("No Secrets Allowed"):
Although Lebanon has one or two other things to worry about these
days, word of last week's decision in the AIPAC case was even
featured in the Lebanese news outlet Ya Libnan, datelined "Beirut and
Washington" (based on a Washington Post story by Jerry Markon):
MANPADS REPORT WITHDRAWN FROM FAS WEB SITE
A July 31 Department of Homeland Security report to Congress on the
status of defenses against shoulder-fired anti-aircraft missiles
was removed from the Federation of American Scientists web site
after DHS objected to its publication.
DHS urged that the unclassified report, marked "For Official Use
Only," be taken offline and, upon consideration, we agreed to do so.
"The Report has never been released by DHS to the public because it
contains sensitive information such as the transition of military
technology for potential civil use, systems performance of the
prototype systems being developed by DHS and its partners, and the
reliability of such prototype systems," wrote DHS deputy associate
general counsel William H. Anderson.
"Due to the sensitive nature of the Report, I request that your
organization immediately remove the Report from its website."
"If the Report is not removed from your website within 2 business
days, we will consider further appropriate actions necessary to
protect the information contained in the Report," Mr. Anderson wrote.
See his August 9 letter here:
"You took it offline? I'm surprised," said one Congressional staffer
who obtained the DHS report to Congress via FAS.
He said that executive branch restrictions on unclassified information
had become a growing hindrance to Congressional oversight. If the
document is really sensitive, he suggested, "it should be
Our intention is to review the document in light of the concerns
expressed by DHS. Following such review, the document or portions of
it may be restored to our web site.
A POSTSCRIPT ON MOBILE IRAQI BW LABS
Did U.S. intelligence analysts actually "replicate" the mobile
biological weapons laboratories that were supposedly deployed by
Saddam Hussein, as stated in the Silberman-Robb Commission report?
Arms control expert Milton Leitenberg of the University of Maryland
posed this question earlier this year (Secrecy News, 06/29/06).
Based on his own investigations, he has now concluded that there was
no such replication of the supposed mobile BW labs.
"No mock-up containing the pieces of equipment shown in the drawings
appears to have been produced, and no biological agent or simulant
"Apparently the drawings [used in Secretary Powell's 2003 UN
presentation] were all that was ever prepared."
"These self-conceived and self-imagined illustrations were all the
'evidence' that the United States government had to give to Secretary
of State Powell to place before the United Nations and the world to
support the claim that Iraq had mobile biological weapon production
platforms...," Dr. Leitenberg wrote.
See "Further Information Regarding US Government Attribution of a
Mobile Biological Production Capacity by Iraq" by Milton Leitenberg,
NASRALLAH: A SELF-PORTRAIT
"I have been reading [former Israeli Prime Minister Ariel] Sharon's
biography for a while now, and I am going to read the book again."
So said Hizbollah leader Hasan Nasrallah in an autobiographical note
published last week in a Tehran magazine.
In a discussion of his political objectives, he seemed to exclude the
possibility of establishing an Islamic Republic in Lebanon.
"Establishing an Islamic Republic is not possible with force and
resistance. It requires a national referendum. A referendum that wins
51 percent of the vote is still not the solution. What it needs is a
referendum for which 90 percent of the people vote."
But about 40% of the Lebanese population is Christian.
"Hence, with this assumption, and in view of the status quo,
establishing an Islamic Republic system in Lebanon is not possible at
the present time," he said.
See "Seyyed Hasan Nasrallah's Autobiography," Ya Lesarat Ol-Hoseyn
(Tehran), translated by the DNI Open Source Center, August 10:
In a recent U.S. Treasury Department tabulation of hundreds of
terrorist and criminal organizations and individuals, Nasrallah is
listed with his passport number and date of birth -- August 31. But
for some reason his year of birth is given variously as 1953, 1955,
1958 or 1960 (noticed by Amir Oren of Haaretz):
Most news accounts indicate that his year of birth is 1960, though
some suggest, probably incorrectly, that he has already turned 46.
ARMY ISSUES NEW REGS FOR UNMANNED AERIAL SYSTEMS
The U.S. Army has updated its regulations governing unmanned aircraft
See "Unmanned Aircraft System Flight Regulations," U.S. Army
Regulation 95-23, 7 August 2006:
Secrecy News will resume publication the week of August 28.
Secrecy News is written by Steven Aftergood and published by the
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