Tuesday, March 28, 2006

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from the FAS Project on Government Secrecy
Volume 2006, Issue No. 40
March 28, 2006

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

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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

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:


"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

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:



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:


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


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


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


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


"Lebanon," updated March 16, 2006:


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


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


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

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Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: www.fas.org/sgp/index.html
email: saftergood@fas.org
voice: (202) 454-4691


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