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1) IMPROVED INFO SHARING: A PATH FORWARD.  2) CRS ON TERRORIST FINANCING, ARMY OFFICER SHORTAGE.  3) CBO ON IRAQ SPENDING.  4) THE TRACKING OF DONALD KEYSER.  SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 79
July 14, 2006

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

Support Secrecy News:     http://www.fas.org/static/contrib_sec.jsp

• IMPROVED INFO SHARING: A PATH FORWARD
• CRS ON TERRORIST FINANCING, ARMY OFFICER SHORTAGE
• CBO ON IRAQ SPENDING
• THE TRACKING OF DONALD KEYSER

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IMPROVED INFO SHARING: A PATH FORWARD

The need to improve the dissemination of terrorism-related information was among the preeminent policy lessons of September 11.

Yet five years later, "systematic, trusted information sharing remains more of an aspiration than a reality," according to a new task force report from the Markle Foundation.

The report proposes a new conceptual framework for authorizing and promoting information sharing, based on the information's intended uses rather than its bureaucratic origin or other incidental characteristics.

This would permit each agency to get the information it needs to perform its mission, the authors say, while allowing auditing to ensure proper use and instill public confidence.

The Markle task force report also calls for a new approach to national security classification policy that is more tolerant of potential disclosure risks so as to permit more effective sharing.

"Current classification procedures and practices... overemphasize the risks of inadvertent disclosure over those from failing to share."

"We recommend a new risk management approach to handling classified and other sensitive information that gives adequate weight to the risks of not sharing, and provides greater flexibility and more emphasis on mitigating the risks of disclosure."

The authors stress the need for a transparent policy development process.

"In the absence of public confidence that personal information is being used effectively, appropriately, and consistently with both applicable laws and shared expectations of privacy, the necessary public support will not be forthcoming, and even the most promising intelligence systems will fail."

The task force does not envision the general public as a consumer of terrorism-related information and so it does not contemplate measures to improve public disclosure of such information, whether classified or unclassified.

And in an overview of information sharing policy development, the report neglects a few recent innovations that are at least modestly consistent with its recommendations, such as the 2003 executive order provision that permits emergency disclosure of classified information to non-cleared persons, and the "RELIDO" marking that delegates disclosure authority for intelligence information beyond the originator.

Overall, however, the Markle task force report provides an intelligent account of a vexing set of issues. And it has the great virtue of going beyond critique to propose potentially workable solutions as well as a process for implementing and refining them.

See "Mobilizing Information to Prevent Terrorism: Accelerating Development of a Trusted Information Sharing Environment," Third Report of the Markle Foundation Task Force chaired by Zoe Baird and James Barksdale, July 13:

    http://www.markle.org/

As if to validate the most pessimistic view of the state of information sharing, the Baltimore Sun reported that a White House initiative to strengthen sharing by standardizing the use of "sensitive but unclassified" markings is off track and behind schedule.

See "Turf war hampers war on terror" by Siobhan Gorman, Baltimore Sun, July 13:

    http://tinyurl.com/fzf63

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CRS ON TERRORIST FINANCING, ARMY OFFICER SHORTAGE

A new Congressional Research Service report provides a resume of the Terrorist Finance Tracking Program that was recently described in news stories.

See "Treasury's Terrorist Finance Program's Access to Information Held by the Society for Worldwide Interbank Financial Telecommunication (SWIFT)," July 7, 2006:

    http://www.fas.org/sgp/crs/natsec/RS22469.pdf

News reports on the program elicited furious criticism of the New York Times and other publications from those who believed classified information had been improperly and damagingly disclosed.

But "closely similar" accounts were publicly presented years ago in open congressional hearings, the Washington Post reported today.

See "Watching Finances Of Terror Suspects Discussed in 2002" by Walter Pincus, Washington Post, July 14:

    http://tinyurl.com/fldw8

Another new CRS report describes the erosion of the U.S. Army officer corps.

"The Army currently projects an officer shortage of nearly 3,000 in FY2007, with the most acute shortfalls in 'senior' captains and majors with 11 to 17 years of experience."

See "Army Officer Shortages: Background and Issues for Congress," July 5, 2006:

    http://www.fas.org/sgp/crs/natsec/RL33518.pdf

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CBO ON IRAQ SPENDING

The Congressional Budget Office has prepared a new account of U.S. spending in Iraq in response to a request from Rep. John Spratt (D-SC).

"The Congress has appropriated $432 billion for military operations and other activities related to the war on terrorism since September 2001. According to CBO's estimates, from the time U.S. forces invaded Iraq in March 2003, $290 billion has been allocated for activities in Iraq."

For reasons explained in the report, the estimates are slightly lower than those prepared recently by the Congressional Research Service.

See "Estimated Costs of U.S. Operations in Iraq Under Two Specified Scenarios," Congressional Budget Office, July 13:

    http://www.fas.org/irp/congress/2006_rpt/iraqcosts.pdf

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THE TRACKING OF DONALD KEYSER

Donald Keyser, who had been a respected State Department expert on China, pled guilty last year to illegally removing classified documents from the State Department, making false statements to the FBI, and concealing his relationship with a Taiwanese intelligence officer.

Now the government says that he is failing to fulfill the terms of his plea agreement, and it told a court that the agreement should therefore be revoked, the New York Sun reported today.

In support of its position, the Justice Department filed a detailed and occasionally sordid account of Keyser's alleged entanglement with Taiwanese intelligence.

"The unusual filing opens a window onto the FBI's counterintelligence tradecraft," wrote reporter Josh Gerstein in the Sun. He also noted that Keyser's attorney denies the allegations and says the new Justice Department memo is unfair and inaccurate.

See "A Novel-Like Tale Of Cloak, Dagger Unfolds in Court" by Josh Gerstein, New York Sun, July 14:

    http://www.nysun.com/article/36073

The government memorandum places the worst possible construction on Keyser's activities, including many that seem easily susceptible to benign explanations. In any case it remains true that he conducted an improper relationship with a foreign intelligence officer and violated classification procedures.

A copy of the July 5 government memorandum in support of its motion to find Keyser in breach of his plea agreement is posted here:

    http://www.fas.org/irp/ops/ci/keyser070506.pdf

________________

SECRECY NEWS is a email publication of the FAS Project on Government Secrecy. It provides informal coverage of new developments in secrecy, security and intelligence policies, as well as links to new acquisitions on our web site. It is published 2 to 3 times a week, or as events warrant.

Subscribe to SECRECY NEWS:

To subscribe or unsubscribe to Secrecy News, send an email message to saftergood@fas.org with your request.

Secrecy News is archived at:

      http://www.fas.org/sgp/news/secrecy/index.html

1) A NEW IRAQ CULTURE SMART CARD.  2) DOD ON GENEVA CONVENTIONS, CRS ON MILITARY COMMISSIONS, ETC..  3) FOREIGN INFLUENCE AND SECURITY CLEARANCE DETERMINATIONS.  4) THE CIA'S ANTI-BUSH CABAL.  SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 78
July 11, 2006

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

Support Secrecy News:     http://www.fas.org/static/contrib_sec.jsp

• A NEW IRAQ CULTURE SMART CARD
• DOD ON GENEVA CONVENTIONS, CRS ON MILITARY COMMISSIONS, ETC.
• FOREIGN INFLUENCE AND SECURITY CLEARANCE DETERMINATIONS
• THE CIA'S ANTI-BUSH CABAL

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A NEW IRAQ CULTURE SMART CARD

"Don't use your left hand for contact with others," advises the U.S. Marine Corps in a new edition of the Iraq Culture Smart Card which is distributed to military personnel in Iraq. "It is considered unclean."

It seems late in the day for such niceties. Amid the daily brutality of the Iraq war, there is probably little to be gained by courtesy or to be lost by mere rudeness.

But the Marine Corps Intelligence Activity evidently thinks otherwise.

The MCIA has produced an updated Iraq Culture Smart Card, which features rudimentary information on Iraqi customs, religion and language. A copy was obtained by Secrecy News and is available here (in a very large 22 MB PDF file):

    http://www.fas.org/irp/doddir/usmc/iraqsmart-0506.pdf

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DOD ON GENEVA CONVENTIONS, CRS ON MILITARY COMMISSIONS, ETC.

In a significant policy reversal, the Department of Defense last week formally directed that the humane treatment requirements of Common Article 3 of the Geneva Conventions shall henceforth be applied to all prisoners and detainees in DoD custody (as first reported by the Financial Times). See this July 7 memorandum from Deputy Secretary of Defense Gordon England:

    http://www.fas.org/sgp/othergov/dod/geneva070606.pdf

The procedures for trying enemy prisoners and detainees in the war on terror are again a subject of deliberation (and of a hearing before the Senate Judiciary Committee today) in the wake of the Supreme Court's ruling that the tribunals established by the Bush Administration are unlawful.

A 2005 report of the Congressional Research Service provides some background on the development of this issue. Though now out of date in certain respects, it includes useful tables comparing the various features and procedural safeguards of general courts-martial with those of military commissions and tribunals.

See "The Department of Defense Rules for Military Commissions: Analysis of Procedural Rules and Comparison with Proposed Legislation and the Uniform Code of Military Justice," updated August 4, 2005:

    http://www.fas.org/sgp/crs/natsec/RL31600.pdf

Other notable new CRS reports not readily available in the public domain include the following.

"National Emergency Powers," updated June 20, 2006:

    http://www.fas.org/sgp/crs/natsec/98-505.pdf

"Nuclear Weapons: Comprehensive Test Ban Treaty," updated June 21, 2006:

    http://www.fas.org/sgp/crs/nuke/IB92099.pdf

"Combat Aircraft Sales to South Asia: Potential Implications," July 6, 2006:

    http://www.fas.org/sgp/crs/weapons/RL33515.pdf

"Restructuring U.S. Foreign Aid: The Role of the Director of Foreign Assistance," June 16, 2006:

    http://www.fas.org/sgp/crs/row/RL33491.pdf

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FOREIGN INFLUENCE AND SECURITY CLEARANCE DETERMINATIONS

The House Government Reform Committee will hold a hearing July 13 on the role that considerations of foreign influence play in decisions to grant or deny security clearances for access to classified information.

One of the principal considerations leading to denial of a security clearance is when the applicant has relatives or relationships or other ties abroad in countries of concern, and particularly in the Middle East and the Far East.

This approach, if applied too rigidly, can be counter-productive since the best linguists and the most accomplished area experts will almost invariably have "relationships" of one kind or another with persons in their region of expertise.

But the process for adjudicating disputes over clearances seems distinctly skewed against the applicant.

In a new report, attorney Sheldon Cohen identified a peculiar anomaly in the performance of the Defense Office of Hearings and Appeals (DOHA), which rules on disputed clearance matters for the Defense Department. In the large majority of disputes presented to it, he found, DOHA has consistently ruled against the applicant.

"If Department Counsel appeals a decision granting a clearance, it is virtually assured that the Appeal Board will reverse. Yet, if an applicant appeals a decision involving a foreign connection denying a clearance, the Appeal Board will assuredly affirm the denial," found Cohen, who specializes in security clearance cases.

See "Appeal Board Decisions of the Defense Office of Hearings and Appeals: Are They Arbitrary and Capricious?" by Sheldon I. Cohen, July 10, 2006, linked from here:

    http://www.sheldoncohen.com/publications/

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THE CIA'S ANTI-BUSH CABAL

A May 18 letter sent to President Bush by House Intelligence Committee chairman Rep. Pete Hoekstra criticizing Administration policy on intelligence (first reported July 9 by Eric Lichtblau and Scott Shane of the New York Times) has already earned an enduring place in the annals of congressional oversight of intelligence.

    http://www.fas.org/irp/congress/2006_cr/hoekstra051806.html

While it has been welcomed by some as a sign of congressional vigor and independence, the letter from Chairman Hoekstra also features a weird admixture of paranoia and pique.

"I have been long concerned that a strong and well-positioned group within the Agency intentionally undermined the Administration and its policies," he wrote.

This conspiracy theory, previously alleged mainly by some conservative bloggers and editorial writers, "is supported by the Ambassador Wilson/Valerie Plame events" -- despite the fact that Valerie Plame, whose CIA career was destroyed, would appear to be a victim rather than a perpetrator -- "as well as by the string of unauthorized disclosures."

"I have come to the belief that, despite his service to the [Directorate of Operations], Mr. Kappes [the new CIA Deputy Director] may have been part of this group."

Kappes must be viewed with suspicion, Hoekstra explained, since his appointment was not opposed by House Democrats!

"I must take note when my Democratic colleagues - those who so vehemently denounced and publicly attacked the strong choice of Porter Goss as Director - now publicly support Mr. Kappes's return," Chairman Hoekstra observed acutely.

"Further, the details surrounding Mr. Kappes's [2004] departure from the CIA give me great pause. Mr. Kappes was not fired, but, as I understand it, summarily resigned his position shortly after Director Goss responded to his demonstrated contempt for Congress and the Intelligence Committees' oversight responsibilities."

This is an idiosyncratic description of a dispute that arose between senior DO officials and the former congressional staff members who accompanied Director Goss to CIA, which led to the resignations of several officials.

"The fact is, Mr. Kappes and his Deputy, Mr. Sulick, were developing a communications offensive to bypass the Intelligence Committees and the CIA's own Office of Congressional Affairs. One can only speculate on the motives but it clearly indicates a willingness to promote a personal agenda," Rep. Hoekstra wrote.

As David Corn wrote in The Nation, "It's hard to know who to root for" in this strange clash of personalities and institutions.

Maybe the answer is that the conflict itself is the good news, since it restores a healthy tension to the oversight process and drives the disclosure of new information into the public domain.

Coincidentally, Michael Sulick, one of the members of the supposed anti-Bush "cabal" at CIA named by Rep. Hoekstra, is the author of a colorful new first-person account of a CIA initiative to establish relations with Lithuania in 1991 when the Soviet Union fell.

See "As the USSR Collapsed: A CIA Officer in Lithuania" by Michael J. Sulick, Studies in Intelligence, vol. 50, no. 2, 2006:

    http://www.cia.gov/csi/studies/vol50no2/html_files/CIA_Lithuania_1.htm

________________

SECRECY NEWS is a email publication of the FAS Project on Government Secrecy. It provides informal coverage of new developments in secrecy, security and intelligence policies, as well as links to new acquisitions on our web site. It is published 2 to 3 times a week, or as events warrant.

Subscribe to SECRECY NEWS:

To subscribe or unsubscribe to Secrecy News, send an email message to saftergood@fas.org with your request.

Secrecy News is archived at:

      http://www.fas.org/sgp/news/secrecy/index.html

1) "CONGRESSIONAL OVERSIGHT OF INTELLIGENCE IS BROKEN".  2) AIR FORCE SPACE COMMAND ON SATELLITE OPERATIONS.  3) IN OTHER NEWS.  4) SOME MORE CRS REPORTS.  SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 70
June 15, 2006

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

Support Secrecy News:     http://www.fas.org/static/contrib_sec.jsp

• "CONGRESSIONAL OVERSIGHT OF INTELLIGENCE IS BROKEN"
• AIR FORCE SPACE COMMAND ON SATELLITE OPERATIONS
• IN OTHER NEWS
• SOME MORE CRS REPORTS

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"CONGRESSIONAL OVERSIGHT OF INTELLIGENCE IS BROKEN"

Congressional oversight of intelligence is "dysfunctional," according to a new report from the liberal Center for American Progress.

Some of the most urgent and fundamental policy issues facing the nation are matters of intelligence policy: What are the proper boundaries of domestic intelligence surveillance? What is the legal framework for interrogation of enemy detainees? Why haven't the recommendations of the 9/11 Commission been effectively implemented?

But at a moment when intelligence policy is relatively high on the public agenda, the intelligence oversight committees in Congress seem to have little to contribute.

Even on specific intelligence questions such as the conduct of warrantless domestic surveillance by the National Security Agency, the public can gain more insight from the Senate Judiciary Committee, which has held several public hearings on the subject, than from the Senate Intelligence Committee, which has held none.

The new Center for American Progress report provides a useful survey of the history of intelligence oversight and its current failings, along with a prescription for improvement.

"Correcting the problems that plague congressional oversight of intelligence will not require dramatic changes in the existing oversight structure. Congress has all the tools it needs to conduct its oversight responsibilities effectively....it is simply not using them. It must."

See "No Mere Oversight: Congressional Oversight of Intelligence is Broken," June 13, 2006:

    http://www.americanprogress.org/site/pp.asp?c=biJRJ8OVF&b=1761097

Some of the limitations of intelligence oversight are implicit in the structure of the process.

For an earlier (1992) self-critical account by a staff member of the Senate Intelligence Committee, see "Congressional Oversight of Intelligence: One Perspective" by Mary K. Sturtevant, American Intelligence Journal, Summer 1992:

    http://www.fas.org/irp/eprint/sturtevant.html

A recent study of Romania's intelligence apparatus finds that "legislative control of intelligence in Romania can be estimated on a low-medium-high scale as 'medium to high'."

Furthermore, in Romania "the budgets of the intelligence agencies are transparent," which is more than can be said about U.S. intelligence.

See "The Intelligence Phenomenon in a New Democratic Milieu: Romania -- A Case Study" by Valentin Fernand Filip, Naval Postgraduate School, March 2006:

    http://www.fas.org/irp/world/romania/filip.pdf

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IN OTHER NEWS

The National Security Archive filed suit against the Central Intelligence Agency after the CIA began imposing costs to process Freedom of Information Act requests that it said were not "newsworthy" and therefore not entitled to a fee waiver.

By interposing its own editorial judgment in the FOIA process, the CIA in effect is "trying to close off use of the FOIA by journalists," said Archive General Counsel Meredith Fuchs.

See "CIA Claims the Right to Decide What is News," June 14:

    http://www.gwu.edu/~nsarchiv/news/20060614/index.htm

The ACLU filed suit against the Pentagon seeking disclosure of information about the TALON (Threat and Local Observation Notice) database, which has been used improperly to store information on domestic political activities.

See "ACLU tries to force Pentagon to turn over records on peace groups" by Drew Brown, Knight Ridder Newspapers, June 14:

    http://www.realcities.com/mld/krwashington/14818782.htm

In almost every lawsuit against the government in which an agency invokes the "state secrets" privilege, the courts end up dismissing the entire case.

"But that's not the way it has to be," wrote constitutional scholar Louis Fisher of the Law Library of Congress in a new op-ed. "Judges have a constitutional duty to function as neutral referees to allow each side to present its case fairly."

See "Give judges a peek at secrets" by Louis Fisher, Los Angeles Times, June 14:

    http://tinyurl.com/qovb5

"The Pentagon has stopped releasing its assessment of the number of Iraqi army units deemed capable of battling insurgents without U.S. military help," in what appears to be a clear instance of politically-motivated secrecy.

"The decision to stop making the information public came after reports showed a steady decline in the number of qualified Iraqi units."

See "U.S. mum on strength of Iraqi troops" by Eric Rosenberg, Hearst Newspapers, June 12:

    http://tinyurl.com/rsxbv

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AIR FORCE SPACE COMMAND ON SATELLITE OPERATIONS

The organization and management of U.S. Air Force space activities from pre-launch to post-operational disposal are described in a new AF Space Command Instruction on "satellite operations."

"The objective of satellite disposal is to reduce the potential for spacecraft collisions and frequency interference, to mitigate the creation of additional space debris and to open orbital slots to newer SVs [satellite vehicles]."

"Therefore, de-orbiting or removing a non-mission capable satellite from its operational orbit and placing it into an established disposal region is of paramount importance."

See "Satellite Operations," U.S. Air Force Space Command Instruction 10-1204, 1 June 2006:

    http://www.fas.org/irp/doddir/usaf/afspci10-1204.pdf

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SOME MORE CRS REPORTS

Some random reports of the Congressional Research Service that are not otherwise readily available in the public domain include the following:

"Science, Technology, Engineering, and Mathematics (STEM) Education Issues and Legislative Options," May 22, 2006:

    http://www.fas.org/sgp/crs/misc/RL33434.pdf

"Australia: Background and U.S. Relations," April 20, 2006:

    http://www.fas.org/sgp/crs/row/RL33010.pdf

"China's Impact on the U.S. Automotive Industry," April 4, 2006:

    http://www.fas.org/sgp/crs/misc/RL33317.pdf

"The Congressional Charter of the American National Red Cross: Overview, History, and Analysis," March 15, 2006:

    http://www.fas.org/sgp/crs/misc/RL33314.pdf

________________

SECRECY NEWS is a email publication of the FAS Project on Government Secrecy. It provides informal coverage of new developments in secrecy, security and intelligence policies, as well as links to new acquisitions on our web site. It is published 2 to 3 times a week, or as events warrant.

Subscribe to SECRECY NEWS:

To subscribe or unsubscribe to Secrecy News, send an email message to saftergood@fas.org with your request.

Secrecy News is archived at:

      http://www.fas.org/sgp/news/secrecy/index.html

1) WAITING FOR A RULING IN THE AIPAC CASE.  2) MANAGING WMD CIVIL SUPPORT TEAMS.  3) DISPOSAL OF CHEMICAL WEAPONS IN THE OCEAN, AND MORE (CRS).  SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 66
June 5, 2006

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

Support Secrecy News:     http://www.fas.org/static/contrib_sec.jsp

• WAITING FOR A RULING IN THE AIPAC CASE
• MANAGING WMD CIVIL SUPPORT TEAMS
• DISPOSAL OF CHEMICAL WEAPONS IN THE OCEAN, AND MORE (CRS)

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WAITING FOR A RULING IN THE AIPAC CASE

In the near future a federal court will decide whether the prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC) for allegedly mishandling classified information can proceed, or whether it must be dismissed on First Amendment grounds.

It will be a fateful decision either way.

If the prosecution is permitted to proceed, it would reflect an unprecedented determination that private individuals who are not engaged in espionage can be punished for receiving and transmitting national defense information. Such a finding would instantly transform many national security reporters, researchers and others into potential criminals.

If the case is dismissed, it would imply a bold affirmation of First Amendment values against the encroachment of a Justice Department that keeps testing its ever-expanding boundaries.

In their latest pleading, the defendants called the attention of Judge T.S. Ellis, III, to a new decision of the U.S. Supreme Court which they said supports their argument for dismissal of the AIPAC case.

The Supreme Court decision last week, in a case called Garcetti v. Ceballos, held that when a government employee makes a statement as part of his official duties, he does not enjoy First Amendment protections against retaliation by his employer. The decision was widely viewed as a defeat for whistleblower rights.

But attorneys for the former AIPAC defendants pointed to the sharp distinction made by the Supreme Court between the speech of a government official, which the Court said is not protected by the First Amendment, and the speech of a member of the public, who still possesses First Amendment rights.

"Ceballos confirms the defendants' argument that while it may be proper to sanction a government employee for certain types of speech, the First Amendment does not allow the government to punish subsequent oral transmissions by non-government individuals" like those in the AIPAC case, the defense attorneys wrote.

"The Motion to Dismiss should be granted."

See "Defendants' Notice of Supreme Court Decision Relevant to Defendants' Joint Motion to Dismiss the Superseding Indictment," filed June 2, 2006 in USA v. Rosen, Weissman:

    http://www.fas.org/sgp/jud/rosen060206.pdf

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MANAGING WMD CIVIL SUPPORT TEAMS

In the event of an attack against the United States involving weapons of mass destruction, National Guard units known as WMD civil support teams (CST) would be called upon to respond.

"The mission of the WMD CST is to support civil authorities at a domestic CBRNE [chemical, biological, radiological, nuclear or high-yield explosive] incident site by identifying CBRNE agents/substances, assessing current and projected consequences, advising on response measures, and assisting with requests for additional support."

The operation of WMD civil support teams was described in a recent National Guard publication on "Weapons of Mass Destruction Civil Support Team Management," January 12, 2006 (1.2 MB PDF):

    http://www.fas.org/irp/doddir/army/ngr-cst.pdf

Further detail is presented in "Weapons of Mass Destruction Civil Support Team Tactics, Techniques, and Procedures," U.S. Army Field Manual FM 3-11.22, June 2003 (233 pages, 6 MB PDF):

    http://www.fas.org/irp/doddir/army/fm3-11-22.pdf

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DISPOSAL OF CHEMICAL WEAPONS IN THE OCEAN, AND MORE (CRS)

"The U.S. Armed Forces disposed of chemical weapons in the ocean from World War I through 1970," the Congressional Research Service recalled in a valuable new report.

"At that time, it was thought that the vastness of ocean waters would absorb chemical agents that may leak from these weapons. However, public concerns about human health and environmental risks, and the economic effects of potential damage to marine resources, led to a statutory prohibition on the disposal of chemical weapons in the ocean in 1972."

"For many years, there was little attention to weapons that had been dumped offshore prior to this prohibition. However, the U.S. Army completed a report in 2001 indicating that the past disposal of chemical weapons in the ocean had been more common and widespread geographically than previously acknowledged."

"The Army cataloged 74 instances of disposal through 1970, including 32 instances off U.S. shores and 42 instances off foreign shores. The disclosure of these records has renewed public concern about lingering risks from chemical weapons still in the ocean today."

See "U.S. Disposal of Chemical Weapons in the Ocean: Background and Issues for Congress," May 24, 2006:

    http://www.fas.org/sgp/crs/natsec/RL33432.pdf

Some other recent CRS reports obtained by Secrecy News that are not readily available in the public domain include:

"Defense: FY2007 Authorization and Appropriations," updated May 31, 2006:

    http://www.fas.org/sgp/crs/natsec/RL33405.pdf

"The Changing Demographic Profile of the United States," updated May 5, 2006:

    http://www.fas.org/sgp/crs/misc/RL32701.pdf

________________

SECRECY NEWS is a email publication of the FAS Project on Government Secrecy. It provides informal coverage of new developments in secrecy, security and intelligence policies, as well as links to new acquisitions on our web site. It is published 2 to 3 times a week, or as events warrant.

Subscribe to SECRECY NEWS:

To subscribe or unsubscribe to Secrecy News, send an email message to saftergood@fas.org with your request.

Secrecy News is archived at:

      http://www.fas.org/sgp/news/secrecy/index.html

1) THE CASE OF THOMAS BUTLER: THE LAST CHAPTER.  2) SELECTED AGENCY DECLASSIFICATION PLANS.  3) JAG HANDBOOK ON NATIONAL SECURITY LITIGATION.  SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 65
June 2, 2006

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

Support Secrecy News:     http://www.fas.org/static/contrib_sec.jsp

• THE CASE OF THOMAS BUTLER: THE LAST CHAPTER
• SELECTED AGENCY DECLASSIFICATION PLANS
• JAG HANDBOOK ON NATIONAL SECURITY LITIGATION

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THE CASE OF THOMAS BUTLER: THE LAST CHAPTER

The prosecution of Thomas C. Butler, the distinguished scientist who was convicted in 2004 of exporting plague bacteria to Tanzania without proper authorization and of various contract violations, came to a final conclusion last month when the U.S. Supreme Court denied his petition to review the matter.

Yet the Butler case may endure as a parable of our times, since Dr. Butler, a specialist in plague and other infectious diseases, is such an unlikely criminal and the government's pursuit of him seems so heavy-handed.

By all accounts, Butler is a person of extraordinary stature and achievement.

"The defendant's research and discoveries have led to the salvage of millions (!) of lives throughout the world," Judge Sam R. Cummings of the Northern District of Texas admitted in March 2004, before sentencing him to two years in jail.

A terrorist is one who destroys life indiscriminately. We lack a word for someone who *saves* millions of lives indiscriminately. If there were such a word, it could be applied without exaggeration to Thomas Butler.

But incredibly, his expertise in infectious diseases was invoked against him by the post-9/11 prosecution.

"From the outset of the trial, the government openly sought to use the specter of plague to convince the jury that Dr. Butler was a 'bad person'," wrote Butler's defense attorney, George Washington University professor Jonathan Turley.

"The government analogized the actions of Dr. Butler to the practice in the Middle Ages of catapulting plague-infested human cadavers into walled cities to cause panic and death, bringing widespread panic to the quiet town of Lubbock," Turley recalled.

See the Butler's petition for certiorari, filed at the U.S. Supreme Court on April 11, 2006:

    http://www.fas.org/butler/cert.pdf

The petition was denied without comment by the Court in a May 15, 2006 order.

Science Magazine (26 May 2006, p. 1120) reported that "His supporters, including chemistry Nobelist Peter Agre... are hoping against hope for a presidential pardon, if not from George W. Bush then possibly from his successor."

Selected case files, statements of support and other background materials on the Butler case are available from the Federation of American Scientists here:

    http://www.fas.org/butler/index.html

Dr. Butler completed his prison term and returned home in December 2005.

---

SELECTED AGENCY DECLASSIFICATION PLANS

In his 1995 executive order 12958, President Clinton directed that most historically valuable classified records be automatically declassified as they become 25 years old. The onset of this automatic declassification process was deferred repeatedly, but it was affirmed in principle by President Bush in his 2003 executive order 13292, and the initial phase of the process is now scheduled to begin at the end of December 2006.

"It is one thing to conceive such a concept and quite another to implement it," wrote William Leonard, director of the Information Security Oversight Office, in the latest ISOO annual report to the President.

"As of September 21, 2005, ISOO estimate[d] that 155 million pages of classified national security information must be declassified, exempted, or referred to other agencies by December 31, 2006."

"ISOO believes, for the most part, that the Executive branch is progressing toward fulfilling its responsibilities for these records by the deadline," Mr. Leonard wrote.

A selection of agency declassification plans presented to ISOO detailing plans for compliance with the automatic declassification deadline, obtained under the FOIA by Michael Ravnitzky, is posted here:

    http://www.fas.org/sgp/isoo/declass/index.html

For related background, see "Progress Toward the Automatic Declassification Deadline of December 31, 2006" in the 2005 ISOO Annual Report to the President (at page 19):

    http://www.fas.org/sgp/isoo/2005rpt.pdf

---

JAG HANDBOOK ON NATIONAL SECURITY LITIGATION

The legal issues and security procedures involved in litigating national security cases are introduced in a handbook published by the Navy Judge Advocate General.

"National Security Cases and cases involving classified information are inherently complex because they impose strict security, reporting, coordination, and approval requirements on top of the necessities of investigating, trying, defending, or adjudicating charges."

"Some offenses are capital and often are 'high visibility' cases overseen by the media, senior government officials, and Congress."

The JAG handbook "contains information and guidance on the preparation, prosecution, defense, and adjudication of such cases."

See "The Judge Advocate's Handbook For Litigating National Security Cases," Office of the Judge Advocate General, Department of the Navy, n.d. (2002):

    http://www.fas.org/sgp/library/jag.pdf

________________

SECRECY NEWS is a email publication of the FAS Project on Government Secrecy. It provides informal coverage of new developments in secrecy, security and intelligence policies, as well as links to new acquisitions on our web site. It is published 2 to 3 times a week, or as events warrant.

Subscribe to SECRECY NEWS:

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Secrecy News is archived at:

      http://www.fas.org/sgp/news/secrecy/index.html

1) NRC RECONSIDERS SECRECY OF NUCLEAR FUEL EXPORTS.  2) "UNPRECEDENTED" AIPAC PROSECUTION DRAWS GROWING ATTENTION.  3) IN PRINT.  4) DNI REPORT VIEWS PROLIFERATION, CIRCA 2004.  SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 56
May 10, 2006

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

Support Secrecy News:     http://www.fas.org/static/contrib_sec.jsp

• NRC RECONSIDERS SECRECY OF NUCLEAR FUEL EXPORTS
• "UNPRECEDENTED" AIPAC PROSECUTION DRAWS GROWING ATTENTION
• IN PRINT
• DNI REPORT VIEWS PROLIFERATION, CIRCA 2004

---

NRC RECONSIDERS SECRECY OF NUCLEAR FUEL EXPORTS

In response to a request from a public interest group, the Nuclear Regulatory Commission (NRC) agreed to disclose the amounts of highly enriched uranium (HEU) fuel sought for export by two foreign countries. But the NRC said it reserved the right to withhold similar information in the future.

The Nuclear Control Institute (NCI) had argued last February that NRC secrecy regarding HEU exports was impeding public deliberation on the subject, and that such deliberation had in the past contributed to a reduction in international traffic in the weapons-grade material (SN, 02/15/06).

NRC chairman Nils J. Diaz agreed in part.

"With respect to the two pending applications for export of HEU, the NRC has decided that the total quantity of material requested in the particular export applications may be released," he wrote to NCI President Paul Leventhal and analyst Alan Kuperman in a letter dated April 26 and disclosed this week.

Chairman Diaz revealed that Belgium had applied for export of 85.5 kilograms of HEU reactor fuel, and that Canada was seeking 15.5 kilograms of HEU.

    http://www.fas.org/sgp/news/2006/05/nrc042606.pdf

Unfortunately, the utility of the new disclosures for public deliberation over nuclear exports was undercut by the fact that Belgium's application has already been approved. A copy of the May 3 export license, with the amount of fuel to be sent to Belgium still blacked out, is here:

    http://www.fas.org/sgp/news/2006/05/nrc-belg.pdf

"This new NRC policy of considering disclosure of requested export amounts upon request is an improvement over the blanket redaction policy," said NCI's Alan Kuperman, who is also an assistant professor at the University of Texas at Austin.

"But it will not restore a meaningful opportunity for public comment unless in each case the public promptly requests and the NRC promptly grants disclosure of the amount of the export license request, well in advance of the commission's decision on that license request," he told Secrecy News.

Kuperman praised outgoing NRC chairman Diaz for his constructive response, but he said that "we'll be appealing for the routine release of these numbers."

---

"UNPRECEDENTED" AIPAC PROSECUTION DRAWS GROWING ATTENTION

The prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC) for allegedly mishandling classified information is attracting growing attention as the momentous character of the case and its implications for American civil liberties become clear. (AIPAC itself is not a defendant and is not accused of wrongdoing.)

"When we say that this is an unprecedented case, we're not saying it hyperbolically the way people use 'unprecedented'," said defense attorney Abbe Lowell, according to the newly disclosed transcript of an April 21 court hearing. "We literally mean it's unprecedented. There is not a case like it."

Never before has the Espionage Act of 1917 been used to prosecute uncleared, non-governmental persons who are engaged in protected First Amendment activities (not espionage) for receiving and transmitting national defense information.

If these defendants are guilty of a crime, then so are many other advocates, reporters, congressional staff and so forth.

"I think Mr. Lowell is absolutely right," Judge T.S. Ellis, III said at the April 21 hearing. "It is an unprecedented, it's a novel case."

Prosecuting attorney Kevin DiGregory argued that the defendants had conspired to improperly gather and disseminate classified information and therefore "they stand in the shoes of a thief."

But the court rejected that assertion.

"You're not going to attempt to prove, and it isn't alleged in the indictment, that these defendants in some way conspired to steal [the information]," said Judge Ellis. "I don't think you gain much from an analogy that doesn't fit."

"I find this a very, very hard problem," he said. "I'm exquisitely sensitive to the [defendants'] motion to dismiss that I'm continuing to consider," he said.

Assuming the case is not dismissed, the trial will begin August 7.

A copy of the transcript of the April 21 hearing on the matter was obtained by Secrecy News and is available here:

    http://www.fas.org/sgp/jud/rosen042106.html

The AIPAC case may be a prelude to the establishment of an American version of the British Official Secrets Act, wrote civil libertarian Nat Hentoff. See "Chilling Free Speech" by Nat Hentoff, Washington Times, May 8:

    http://washingtontimes.com/op-ed/20060507-094116-3382r.htm

The case could "change the nature of how news is gathered in Washington and how lobbyists and academics interact with the government," wrote author David Wise. See "Read the News, Go to Jail," by David Wise, Los Angeles Times, April 30:

    http://tinyurl.com/lgl8o

Both articles were entered into the Congressional Record yesterday by Rep. Jim McDermott (D-WA). See "The Big Chill in Washington, DC," May 9:

    http://www.fas.org/sgp/congress/2006/bigchill.html

---

IN PRINT

The new Journal of National Security Law & Policy has recently published its second issue featuring several meaty articles on interrogation, torture and the rule of law. The full contents of the issue, along with subscription information, are available online here:

    http://www.mcgeorge.edu/jnslp/

The case of Sam Adams, the intelligence analyst who challenged official assessments of the size of Viet Cong forces during the Vietnam War, is revisited in a new book.

"It's the first complete narrative of the intelligence war at the heart of what went wrong in Vietnam, and it also happens to be highly relevant to what's happening today in Iraq," suggests the publisher.

See "Who the Hell Are We Fighting? The Story of Sam Adams and the Vietnam Intelligence Wars," by C. Michael Hiam, Steerforth Press, published April 25, 2006:

    http://www.steerforth.com/books/display.pperl?isbn=9781586421045

---

DNI REPORT VIEWS PROLIFERATION, CIRCA 2004

"We remain concerned that Tehran may have a clandestine nuclear weapons program," according to a new but rather anticlimactic U.S. intelligence report to Congress.

The new report on foreign acquisition of weapons of mass destruction during 2004 was released by the Deputy Director of National Intelligence this week.

Such a report is required by statute to be prepared and delivered every six months. The last report, for the second half of 2003, was released in November 2004.

See "Acquisition of Technology Relating to Weapons of Mass Destruction and Advanced Conventional Munitions, 1 January Through 31 December 2004," Unclassified DDNI Report to Congress, May 2006:

    http://www.fas.org/irp/threat/wmd-acq.pdf

________________

SECRECY NEWS is a email publication of the FAS Project on Government Secrecy. It provides informal coverage of new developments in secrecy, security and intelligence policies, as well as links to new acquisitions on our web site. It is published 2 to 3 times a week, or as events warrant.

Subscribe to SECRECY NEWS:

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1) GOVT DEFENDS CONSTITUTIONALITY OF CHARGES IN AIPAC CASE.  2) A LEGAL ANALYSIS OF THE REAUTHORIZED PATRIOT ACT (CRS).  3) TRANSNATIONAL ORGANIZED CRIME (CRS).  4) U.S. ASSISTANCE TO IRAQ, POST-WAR GERMANY, JAPAN COMPAR SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 43
April 5, 2006

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

Support Secrecy News:     http://www.fas.org/static/contrib_sec.jsp

• GOVT DEFENDS CONSTITUTIONALITY OF CHARGES IN AIPAC CASE
• A LEGAL ANALYSIS OF THE REAUTHORIZED PATRIOT ACT (CRS)
• TRANSNATIONAL ORGANIZED CRIME (CRS)
• U.S. ASSISTANCE TO IRAQ, POST-WAR GERMANY, JAPAN COMPARED (CRS)

---

GOVT DEFENDS CONSTITUTIONALITY OF CHARGES IN AIPAC CASE

Government attorneys presented a robust justification of their decision to prosecute two former officials of the American Israel Public Affairs Committee (AIPAC) for mishandling classified information in a supplemental brief filed in the case last week.

"In the final analysis, this case is not about free speech, foreign policy lobbying, or petitioning the government," the Government brief stated.

"This case is about the willful conduct of two defendants; two defendants who conspired to obtain national defense information, knew they had in fact obtained national defense information, knew that communicating that information to foreign agents and members of the press was illegal, and yet chose to do so anyway. The First Amendment offers no sanctuary for their criminal conduct," the brief declared.

At a March 24 hearing, government attorneys had seemed tongue-tied and barely responsive to the probing questions of Judge T.S. Ellis III. Their March 31 brief, in contrast, is tightly argued.

Prosecutors even identified, at long last, what they said was a precedent for this unusual case. In a 1941 ruling in Gorin v. United States, the Supreme Court upheld the constitutionality of the espionage statutes in a case that, like the present one, involved "oral disclosures of national defense information to a person who was not a government employee."

Attorneys for the defense also filed their own brief on First Amendment-related issues on March 31, but it was filed under seal and is not publicly available.

The defense had previously argued that it would be unconstitutional to criminalize oral communications involving national defense information because -- unlike documents that are marked classified -- oral conversations do not provide the listener any way to know which information is restricted from disclosure. Prosecutors disputed that argument.

"If oral communications of national defense information to non-government employees were to render the espionage statutes unconstitutional, this country would face a new era in which unconstrained espionage would flourish. Foreign agents and other individuals intent on obtaining the nation's most secret information would merely need to engage in verbal discussions with their sources in order to thwart law enforcement. It is obvious that in passing the espionage statutes, Congress never intended such an absurd result."

The Government also disputed the defense claim that the espionage statutes are impermissibly vague, and said that there are "extremely rigorous evidentiary hurdles" that protect against prosecutorial abuse.

"The willful intent requirement is a particularly strong guarantee against the unconstitutional application of Section 793 [of the Espionage Act]... By requiring the government to prove that the defendants knew their conduct was illegal, Section 793 insures that an 'entrapped innocent' will not fall within the statute's confines. Section 793 is not unconstitutionally vague."

A copy of the Government's brief was obtained by Secrecy News.

See "Government's Supplemental Response to Defendants' Motion to Dismiss the Superseding Indictment," filed March 31:

    http://www.fas.org/sgp/jud/rosen033106govt.pdf

The Government's newfound clarity about its argument hardly mitigates the First Amendment concerns raised by the case.

To the contrary, the prosecution's theory implies that once a reporter becomes aware that the subject of a story is "national defense information," he or she is legally obliged to desist from gathering any more information about it. To do otherwise could constitute evidence of "willful intent" to violate the Espionage Act.

As then-U.S. Attorney (now Deputy Attorney General) Paul McNulty put it last year, "Those not authorized to receive classified information must resist the temptation to acquire it, no matter what their motivation may be."

But according to case law, "national defense information" means defense-related information that the Government has taken steps to withhold from official disclosure, even if it is not classified.

So the press and the public are free to investigate anything defense-related unless the Government has decided it should be withheld. This might work very well. In some other country.

---

A LEGAL ANALYSIS OF THE REAUTHORIZED PATRIOT ACT (CRS)

On March 9, the President signed into law the USA Patriot Improvement and Reauthorization Act, which made permanent 14 of the 16 sections of the Patriot Act that were set to expire.

A new report from the Congressional Research Service provides a detailed, 74 page analysis of the Act, including the various modifications made in the reauthorization process.

See "USA PATRIOT Improvement and Reauthorization Act of 2005: A Legal Analysis," March 24, 2006:

    http://www.fas.org/sgp/crs/intel/RL33332.pdf

---

TRANSNATIONAL ORGANIZED CRIME (CRS)

The threat posed by organized crime networks to national security and international stability, and U.S. policy responses to the threat, are examined by the Congressional Research Service in a new report obtained by Secrecy News.

"Starting in the 1990s with the end of the Cold War and the advent of globalization, many criminal organizations ramped up their operations and expanded them worldwide."

"Crime networks have exploited expanding trade and financial markets, while benefitting from rapidly advancing technology, broadened international travel, and improved global communications."

"Mainly due to its clandestine nature, international crime is hard to measure. By the most conservative estimates, criminal proceeds comprise between two and five percent of global gross domestic product (GDP)."

See "Transnational Organized Crime: Principal Threats and U.S. Responses," March 20, 2006:

    http://www.fas.org/sgp/crs/natsec/RL33335.pdf

---

U.S. ASSISTANCE TO IRAQ, POST-WAR GERMANY, JAPAN COMPARED (CRS)

The total amount of U.S. aid to Iraq since 2003 is already comparable to post-World War II U.S. assistance to Germany and nearly double that provided to Japan, according to a new Congressional Research Service analysis.

"U.S. assistance to Germany totaled some $4.3 billion ($29.6 billion in 2005 dollars) for the years of direct military government (May 1945-May 1949) and the overlapping Marshall Plan years (1948/1949-1952)."

"Total U.S. assistance to Japan for the years of the occupation, from 1946-1952 was roughly $2.2 billion ($15.2 billion in 2005 dollars), of which almost $1.7 billion was grants and $504 million was loans."

By comparison, "U.S. assistance to Iraq appropriated from FY2003 to FY2006 totaled some $28.9 billion."

The CRS report is careful to note the various distinctions between the U.S. occupation of Iraq and the occupations of Germany and Japan.

For one thing, "Unlike the cases of Germany and Japan, there was no massive humanitarian crisis requiring aid in Iraq."

On the other hand, "Iraq also faces an insurgency that deliberately sabotages the economy and reconstruction efforts, whereas there were no resistance movements in either Germany or Japan."

CRS does not permit direct public access to its products. A copy of the new report was obtained by Secrecy News.

See "U.S. Occupation Assistance: Iraq, Germany and Japan Compared," March 23, 2006:

    http://www.fas.org/sgp/crs/natsec/RL33331.pdf

________________

SECRECY NEWS is a email publication of the FAS Project on Government Secrecy. It provides informal coverage of new developments in secrecy, security and intelligence policies, as well as links to new acquisitions on our web site. It is published 2 to 3 times a week, or as events warrant.

Subscribe to SECRECY NEWS:

To subscribe or unsubscribe to Secrecy News, send an email message to saftergood@fas.org with your request.

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      http://www.fas.org/sgp/news/secrecy/index.html

1) AIPAC CASE DRAWS GROWING ATTENTION.  2) SECURITY CLEARANCES PROPOSED FOR SOME HOUSE MEMBERS.  3) ENDING SECRET HOLDS IN THE SENATE.  4) DOD ISSUES NEW ON INFORMATION OPERATIONS.  5) RADIO FREQUENCY BIOEFFECT SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 42
April 3, 2006

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

Support Secrecy News:     http://www.fas.org/static/contrib_sec.jsp

• AIPAC CASE DRAWS GROWING ATTENTION
• SECURITY CLEARANCES PROPOSED FOR SOME HOUSE MEMBERS
• ENDING SECRET HOLDS IN THE SENATE
• DOD ISSUES NEW ON INFORMATION OPERATIONS
• RADIO FREQUENCY BIOEFFECTS VIEWED FOR NON-LETHAL WEAPONS

---

AIPAC CASE DRAWS GROWING ATTENTION

The prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC) for mishandling classified information is attracting growing public attention and concern as the anomalous character of the case becomes increasingly clear.

It bears repeating that the two defendants, Steven Rosen and Keith Weissman, are not accused of being agents of Israel or any other foreign power. The government has stipulated that they are not. Although they are charged under "the Espionage Act," this is not an espionage case.

What makes the whole affair even more peculiar is that the defendants did not even request the disclosure of the information they are accused of mishandling.

"Nowhere is it alleged that Dr. Rosen or Mr. Weissman stole, paid for or even solicited the information that they allegedly received," the defense noted in a January 19 motion to dismiss.

A theory of the law that would penalize such informal transactions between citizens and government officials is obviously susceptible to extreme abuse.

See "First Amendment Issues Raised About Espionage Act" by Walter Pincus, Washington Post, March 31:

    http://tinyurl.com/hwfqq

See also "Judge Calls Speech Rights Central to Espionage Case" by Richard B. Schmitt, Los Angeles Times, April 2:

    http://tinyurl.com/gz24c

Although Judge T.S. Ellis III questioned the government sharply at a March 24 hearing, there is no reason to deduce that he will dismiss the case. Such questioning typically serves to clarify the basis for prosecution and is, as often as not, a prelude to a ruling in favor of the government.

The jury trial in the case that was originally set for April 25 has been rescheduled for May 23, according to a notice in the case docket.

---

SECURITY CLEARANCES PROPOSED FOR SOME HOUSE MEMBERS

Members of the House of Representatives who serve on the Intelligence Committee or the Defense Appropriations Subcommittee should be required to obtain security clearances as a condition of the service, said Rep. Steve Buyer (R-IN), who introduced legislation to that end last week.

"These two Committees have access to the most closely guarded secrets our nation possesses," Rep. Buyer said in March 30 testimony before the House Rules Committee.

"These Committees are positions of the highest level of trust. I do not believe that asking Members to obtain a clearance in exchange for the privilege of serving on these Committees is too much to ask to show the American people that we take this trust seriously," he said.

He cited the case of Rep. Randy "Duke" Cunningham (R-CA), a member of both committees who was recently convicted of accepting bribes and other offenses, as a justification for the move.

Under Rep. Buyer's surprising proposal, merely getting elected to Congress would become subordinate to the vagaries of the security clearance process. And since Congress does not have its own security vetting function, the Buyer proposal would effectively transfer to the executive branch the power to approve or deny membership on the intelligence or defense appropriations committees.

See "Buyer Pushes Higher Standards for Members," news release, March 30:

    http://www.fas.org/sgp/news/2006/03/buyer033006.html

---

ENDING SECRET HOLDS IN THE SENATE

The Senate voted last week to end the practice of secret "holds" by which a Senator may anonymously block the consideration of pending legislation. The proposal, advanced by Sen. Ron Wyden (D-OR) and Sen. Charles Grassley (R-Iowa), would still permit Senators to object to legislation, but they could not do so anonymously.

"What is unjust about the process of secret holds is that it prevents a Senator from being held accountable when it comes to conducting the people's business," said Sen. Wyden. "It's time to force these objections out of the shadows and into the sunshine."

Last year, a secret hold was used to block the FY 2006 Intelligence Authorization Act from coming to the Senate floor, and for the first time in three decades the annual Authorization Act was not passed.

"I will tell the Senator who is holding that important intelligence bill," said Sen. Jeff Sessions (R-AL) in a somewhat bizarre speech on the Senate floor last week. "It is the two Senators from Massachusetts. Senators Kennedy and Kerry have objected to considering the bill because they want to offer amendments."

That's not true, Senators Kennedy and Kerry replied. The Senators noted that their amendments had been cleared for consideration, and that there were no objections on the Democratic side.

"Apparently, to prevent debate on this very important issue, a Republican Senator is willing to let the whole intelligence bill fail," said Sen. Kennedy. "That's an outrage."

The Wyden-Grassley amendment to prohibit secret holds passed the Senate 84-13. All of the 13 no votes were cast by Republicans.

See the March 28 floor debate here:

    http://www.fas.org/irp/congress/2006_cr/s032806.html

Now that the amendment has passed, will the 2006 Intelligence Authorization Act finally be brought to the Senate floor? Probably not.

"I have little faith in SSCI's [the Senate Intelligence Committee] ability to produce any legislation, regardless of the circumstances," said one Democratic congressional expert. But in any case, work on the 2007 Intelligence Authorization bill has already commenced. And the Wyden-Grassley measure is not yet law, the congressional official noted.

The Wyden-Grassley amendment was offered as part of the Lobbying Reform bill that passed the Senate last week. Some recent Congressional Research Service reports on lobbying reform include the following:

"Lobbying, Ethics and Related Procedural Reforms: Comparison of Current Provisions of S. 2349 and H.R. 4975," March 23, 2006:

    http://www.fas.org/sgp/crs/misc/RL33326.pdf

"Lobbying and Related Reform Proposals: Consideration of Selected Measures," 109th Congress, updated March 23, 2006:

    http://www.fas.org/sgp/crs/misc/RL33293.pdf

"Lobbying Disclosure and Ethics Proposals Related to Lobbying Introduced in the 109th Congress: A Comparative Analysis," updated March 23, 2006:

    http://www.fas.org/sgp/crs/misc/RL33234.pdf

"Lobbying Reform: Background and Legislative Proposals," 109th Congress, updated March 23, 2006:

    http://www.fas.org/sgp/crs/misc/RL33065.pdf

And, for good measure, "Taiwan: Major U.S. Arms Sales Since 1990," updated March 21, 2006:

    http://www.fas.org/sgp/crs/weapons/RL30957.pdf

---

DOD ISSUES NEW DOCTRINE ON INFORMATION OPERATIONS

The Department of Defense recently published new doctrine on the planning and execution of "information operations."

Information operations, including what was formerly known as "information warfare" (a term that has been withdrawn from official doctrine), is comprised of five elements: psychological operations, military deception, operations security, electronic warfare, and computer network operations.

Its overall purpose is "to influence, disrupt, corrupt, or usurp adversarial human and automated decision making while protecting our own."

Information operations programs to influence foreign audiences under the rubric of "strategic communication" have been both controversial and notably ineffective.

"If I were rating, I would say we probably deserve a D or D+ as a country as how well we're doing in the battle of ideas that's taking place," said Secretary of Defense Donald Rumsfeld on March 27. "I'm not going to suggest that it's easy, but we have not found the formula as a country."

The new doctrinal document is Joint Publication 3-13, "Information Operations," dated February 13, 2006 (1.3 MB PDF):

    http://www.fas.org/irp/doddir/dod/jp3_13.pdf

Communications support to military operations through the Global Information Grid is addressed in another new document: Joint Publication 6-0, "Joint Communications System," 20 March 2006 (3 MB PDF):

    http://www.fas.org/irp/doddir/dod/jp6_0.pdf

New Army doctrine on operations -- beginning with "How Army Forces Fight" -- was published last week in U.S. Army Field Manual Interim FMI 5-0.1, "The Operations Process," March 31, 2006 (2.7 MB PDF):

    http://www.fas.org/irp/doddir/army/fmi5-0-1.pdf

---

RADIO FREQUENCY BIOEFFECTS VIEWED FOR NON-LETHAL WEAPONS

The effects of radio frequency (RF) microwave (MW) radiation on the human nervous system and their potential for use in non-lethal weaponry were discussed in a new summary report prepared for the Air Force Office of Scientific Research.

"Although the Department of Defense is one of the world's largest developers and users of RF/MW-emitting systems for radar, communication and anti-electronic weaponry purposes, the use of RF/MW radiation as a non-lethal weapon per se has not yet been realized," according to the authors.

"Most likely this is because the effects of exposure of biological systems to RF/MW fields at levels that do not produce thermal effects are largely unknown," the unclassified report states.

"The overall objective of the research funded by this grant was to begin laying the foundation upon which RF/WM technology can be developed that would have an application for non-lethal weaponry uses, such as stunning/immobilizing the enemy."

See "Interdisciplinary Research Project to Explore the Potential for Developing Non-Lethal Weapons Based on Radiofrequency/Microwave Bioeffects" by Gale L. Craviso and Indira Chatterjee, University of Nevada, January 31, 2006 (1.3 MB PDF):

    http://www.fas.org/man/eprint/nlw-rf.pdf

See, relatedly, "Air Force Plan: Hack Your Nervous System," February 13, 2006:

    http://www.defensetech.org/archives/002152.html

________________

SECRECY NEWS is a email publication of the FAS Project on Government Secrecy. It provides informal coverage of new developments in secrecy, security and intelligence policies, as well as links to new acquisitions on our web site. It is published 2 to 3 times a week, or as events warrant.

Subscribe to SECRECY NEWS:

To subscribe or unsubscribe to Secrecy News, send an email message to saftergood@fas.org with your request.

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      http://www.fas.org/sgp/news/secrecy/index.html

1) THE LAW, THE CONSTITUTION AND WARRANTLESS SURVEILLANCE.  2) THE STRUCTURE OF CHINESE SCIENCE AND TECHNOLOGY.  3) A STUDY OF THE A.Q. KHAN NETWORK.  4) SELECTED CRS REPORTS.  SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 41
March 30, 2006

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

Support Secrecy News:     http://www.fas.org/static/contrib_sec.jsp

• THE LAW, THE CONSTITUTION AND WARRANTLESS SURVEILLANCE
• THE STRUCTURE OF CHINESE SCIENCE AND TECHNOLOGY
• A STUDY OF THE A.Q. KHAN NETWORK
• SELECTED CRS REPORTS

---

FISA AND WARRANTLESS SURVEILLANCE NEWS

Must the President of the United States obey the law? Ordinarily, the answer of course is yes, unless the law itself is unconstitutional.

It is "uncontroversial," wrote then-Assistant Attorney General Walter Dellinger in a 1994 memorandum for the Clinton White House, that "there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional."

See "Presidential Authority to Decline to Execute Unconstitutional Statutes," Office of Legal Counsel, Department of Justice, November 2, 1994:

    http://www.fas.org/irp/agency/doj/olc110294.html

However, the President does not have the last word on what is or is not constitutional. That decision belongs to the Supreme Court.

A new bill introduced by Sen. Charles Schumer (D-NY) yesterday would set the stage for the Supreme Court to consider the legality of the Bush Administration's warrantless surveillance program by granting legal standing to litigants seeking to challenge the program.

"Did the President go outside the ambit of the law about asking for a warrant?" asked Sen. Schumer. "Some think yes, and they are pretty sure of that. Some think no, and they are pretty sure of it. They are pretty sure that he couldn't. Many are not sure at all."

"The most logical place for this to be settled is in the U.S. Supreme Court," he said in his March 29 introductory statement on the new bill (S. 2468). See:

    http://www.fas.org/irp/congress/2006_cr/s2468.html

The Senate Judiciary Committee held a hearing on March 28 featuring four former judges of the Foreign Intelligence Surveillance Court and other expert witnesses who testified on issues surrounding the warrantless surveillance program and Senator Specter's legislative proposal on the subject.

Prepared statements from Sen. Leahy, FISA expert Morton Halperin of the Center for American Progress, and former Justice official David Kris (but not yet the statements of the judges) can be found here:

    http://www.fas.org/irp/congress/2006_hr/index.html#nsa3

A rare interview with FISA Court Judge George Kazen of Laredo, Texas appeared in the Dallas Morning News earlier this week.

See "Judge juggles busy docket, secret duty" by Todd J. Gilman, Dallas Morning News, March 28 (free but intrusive registration required):

    http://tinyurl.com/f4vek

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THE STRUCTURE OF CHINESE SCIENCE AND TECHNOLOGY

The People's Republic of China is making significant strides in science and technology areas related to national security and commercial enterprise, according to a new "bibliometric" study of Chinese scientific publications performed by the U.S. Navy's Office of Naval Research.

"China's output of research articles has expanded dramatically in the last decade. In terms of sheer numbers of research articles, especially in critical technologies (e.g., nanotechnology, energetic materials), it is among the leaders," according to the study.

"In terms of investment strategy relative to that of the USA, China is investing more heavily in the hard science areas that underpin modern defense and commercial activities, whereas the USA is investing more heavily in the medical, psychological, and social problem (e.g., drug use) science areas that underpin improvement of individual health and comfort," the authors said.

The 500 page study proceeds from a series of straightforward observations and analyses to several increasingly dense methodological appendices that are unintelligible to non-specialists.

A copy of the study was obtained by Secrecy News.

See "The Structure and Infrastructure of Chinese Science and Technology" by Ronald N. Kostoff, Office of Naval Research, et al, 2006 (3.9 MB PDF file):

    http://www.fas.org/irp/world/china/docs/science.pdf

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A STUDY OF THE A.Q. KHAN NETWORK

The activities of Pakistan's notorious Abdul Qadeer Khan in proliferating nuclear weapons technology are examined in detail in a recent Master's Thesis, along with an analysis of their enabling conditions and some of their larger implications.

"The A. Q. Khan nuclear supplier network constitutes the most severe loss of control over nuclear technology ever," wrote author Christopher O. Clary.

"For the first time in history all of the keys to a nuclear weapon-- the supplier networks, the material, the enrichment technology, and the warhead designs--were outside of state oversight and control."

"This thesis demonstrates that Khan's nuclear enterprise evolved out of a portion of the Pakistani procurement network of the 1970s and 1980s. It presents new information on how the Pakistani state organized, managed, and oversaw its nuclear weapons laboratories."

See "The A.Q. Khan Network: Causes and Implications" by Christopher O. Clary, Naval Postgraduate School, December 2005:

    http://www.fas.org/irp/eprint/clary.pdf

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SELECTED CRS REPORTS

Some notable new (or newly acquired) publications of the Congressional Research Service include the following.

"North Korean Counterfeiting of U.S. Currency," March 22, 2006:

    http://www.fas.org/sgp/crs/row/RL33324.pdf

"Science and Technology Policy: Issues for the 109th Congress," updated February 3, 2006:

    http://www.fas.org/sgp/crs/misc/RL32837.pdf

"The Jackson-Vanik Amendment: A Survey," updated August 1, 2005:

    http://www.fas.org/sgp/crs/row/98-545.pdf

________________

SECRECY NEWS is a email publication of the FAS Project on Government Secrecy. It provides informal coverage of new developments in secrecy, security and intelligence policies, as well as links to new acquisitions on our web site. It is published 2 to 3 times a week, or as events warrant.

Subscribe to SECRECY NEWS:

To subscribe or unsubscribe to Secrecy News, send an email message to saftergood@fas.org with your request.

Secrecy News is archived at:

      http://www.fas.org/sgp/news/secrecy/index.html

1) THE AIPAC CASE: "UNCHARTED WATERS".  2) SELECTED CRS REPORTS ON THE MIDDLE EAST.  SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 40
March 28, 2006

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

Support Secrecy News:     http://www.fas.org/static/contrib_sec.jsp

• THE AIPAC CASE: "UNCHARTED WATERS"
• SELECTED CRS REPORTS ON THE MIDDLE EAST

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THE AIPAC CASE: "UNCHARTED WATERS"

The prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC) for allegedly receiving and communicating classified information without authorization poses novel legal issues, the presiding judge in the case said last week.

"We are a bit in new, uncharted waters, and that's why I'm going to consider this matter extremely carefully," said Judge T.S. Ellis III at a March 24 hearing on defense motions to dismiss the case.

This is the first case in which the government has sought to criminalize the unauthorized receipt of classified information by non-governmental persons who do not hold security clearances.

Anything other than a dismissal of the charges would mark a dramatic shift in national security law and a significant reduction in First Amendment protections.

At the hearing last week, defense attorneys reiterated their arguments that the underlying statutes are overbroad, unconstitutionally vague, and do not apply to speech but only to the unauthorized transfer of tangible materials such as classified documents.

Unlike documents that bear classification markings, the defense pointed out, oral communications do not provide the recipient with notice that their contents are restricted.

"It's not a coincidence that the words of the statute speak in [terms of] tangible items, and the conduct here is oral," said defense attorney Abbe Lowell.

Under such circumstances, "How can a defendant, a potential defendant, trying to decide whether or not he's stepping across the line, determine when -- what information is national defense information, and when it isn't?" Judge Ellis asked the prosecution.

"It all depends upon the facts, your Honor," replied Assistant U.S. Attorney Kevin DiGregory vaguely.

Furthermore, documents can be returned to their rightful owners. But oral information once received into conscious awareness is difficult not to retain. Yet according to the government, retention of such information by unauthorized recipients is illegal too.

"Well, what are they supposed to do," asked Judge Ellis, "have a lobotomy?"

Prosecutors argued that this is not a First Amendment case involving protected speech.

"What we have alleged in our indictment, your Honor, is not First Amendment protected activity," said Mr. DiGregory.

"What we have alleged is that these two men conspired with persons, known and unknown, they conspired to gather and disseminate national defense information. And we have alleged that they have done so, and communicated that information to persons not entitled to receive it."

"What we're talking about here, your Honor, in the first instance, is conduct. We're not talking about speech," he said.

"Do you think that you can transform speech into conduct?" Judge Ellis replied. "You can't do it just by labeling it conduct."

"All speech is a type of conduct," the Judge continued, "but it's a type of conduct which [defense attorney] Lowell would quickly say falls within the First Amendment. But he would have to be quick to concede that conduct in terms of giving someone a document is not speech, under the First Amendment."

None of these disputed issues were resolved, and the Court's aggressive questioning does not reliably indicate the Judge's own predilections. The parties were ordered to further brief the First Amendment issues by Friday, March 31.

A copy of the transcript of the March 24 hearing in U.S.A. v. Rosen and Weissman was obtained by Secrecy News and may be found here:

    http://www.fas.org/sgp/jud/rosen032406.html

"I am not sure why FAS and other outlets are trying make AIPAC into some kind of martyr of freedom," wrote one commenter on the Secrecy News blog last week. "Its activities were clearly illegal and in violation of US law. Let's be careful not to confound the defense of freedom with a defense of illicit activity."

AIPAC, however, is not on trial and is not accused of wrongdoing. Whether or not the defendants' activities were illegal is the question that is now before the Court.

As for Secrecy News' interest in the case, it stems from the fact that we also gather and disseminate "national defense information," a term that encompasses both classified and unclassified defense information.

We have "unauthorized" conversations with government officials. Sometimes we deliberately pose questions about matters that we know to be classified ("Psst...How big was the total intelligence budget 50 years ago?").

If the government's unbounded new interpretation of the espionage statutes were to prevail, much of our research and publication activity could arguably be considered illegal.

"Under the government's theory, in fact, countless conversations and publications that take place every day are criminal acts," the Washington Post editorialized last week.

See "Dangerous Prosecution," Washington Post, March 23:

    http://tinyurl.com/ggvvm

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SELECTED CRS REPORTS ON THE MIDDLE EAST

Some recent reports of the Congressional Research Service on Middle East-related topics include the following.

"Israel: Background and Relations with the United States," updated March 16, 2006:

    http://www.fas.org/sgp/crs/mideast/IB82008.pdf

"Palestinian President Mahmoud Abbas: Overview of Internal and External Challenges," updated March 9, 2006:

    http://www.fas.org/sgp/crs/mideast/RS22047.pdf

"Iraq: Elections, Government, and Constitution," updated March 13, 2006:

    http://www.fas.org/sgp/crs/mideast/RS21968.pdf

"Iraq: U.S. Regime Change Efforts and Post-Saddam Governance," updated March 7, 2006:

    http://www.fas.org/sgp/crs/mideast/RL31339.pdf

"Women in Iraq: Background and Issues for U.S. Policy," updated March 13, 2006:

    http://www.fas.org/sgp/crs/mideast/RL32376.pdf

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"Lebanon," updated March 16, 2006:

    http://www.fas.org/sgp/crs/mideast/IB89118.pdf

"Saudi Arabia: Current Issues and U.S. Relations," updated February 24, 2006:

    http://www.fas.org/sgp/crs/mideast/IB93113.pdf

"Afghanistan: Post-War Governance, Security, and U.S. Policy," updated March 17, 2006:

    http://www.fas.org/sgp/crs/row/RL30588.pdf

________________

SECRECY NEWS is a email publication of the FAS Project on Government Secrecy. It provides informal coverage of new developments in secrecy, security and intelligence policies, as well as links to new acquisitions on our web site. It is published 2 to 3 times a week, or as events warrant.

Subscribe to SECRECY NEWS:

To subscribe or unsubscribe to Secrecy News, send an email message to saftergood@fas.org with your request.

Secrecy News is archived at:

      http://www.fas.org/sgp/news/secrecy/index.html