[NYTr] fas Secrecy News -- 11/07/2007

Thu Nov 8 12:03:26 EST 2007

SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2007, Issue No. 111
November 7, 2007

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

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

**	AIPAC COURT ADOPTS SILENT WITNESS RULE
**	DOD REGULATION ON FORMULATING THE INTELLIGENCE BUDGET
**	RENDITIONS, AND MORE FROM CRS
**	SUPPORT SECRECY NEWS

AIPAC COURT ADOPTS SILENT WITNESS RULE

Prosecutors will be permitted to secretly present certain recorded
surveillance data to a jury in the forthcoming trial of two former
officials of the American Israel Public Affairs Committee (AIPAC) who
are accused of unauthorized receipt and disclosure of classified
information, a federal judge ruled last week.

Although the closely watched AIPAC case will not go to trial until
January, it has already left a distinct imprint on national security
law and litigation.

In eleven memorandum opinions issued to date, Judge T.S. Ellis, III has
significantly reinterpreted the Espionage Act of 1917, broken new legal
ground in implementing the Classified Information Procedures Act (which
regulates the use of classified information in criminal trials), and set
other precedents.

Last week, Judge Ellis approved limited use at trial of the so-called
"silent witness rule," an unconventional tactic that permits
prosecutors to withhold evidence from the public and to disclose it
only to the parties, the witnesses and the jury.  Because this amounts
to closing the trial, it runs the risk of infringing on constitutional
guarantees that trials will be public.

The silent witness rule "is a novel evidence presentation technique
that has received little judicial attention is the context of the use
of classified information in trials," Judge Ellis noted.  "No published
decision has explicitly approved or endorsed use of the rule in this
context."

But that has now changed.  Judge Ellis approved limited use of the rule
to secretly introduce evidence -- more evidence than the defense wanted,
but less than the prosecution asked for.

Prosecutors had initially sought to introduce 18 minutes and 24 seconds
of recorded surveillance conversations along with 36 documents under the
silent witness rule.  But Judge Ellis only approved "silent"
introduction of 4 minutes and 6 seconds of recorded conversation (and
apparently no documents).

See Judge Ellis' November 1 Memorandum Opinion here (pp. 10-20):

     http://www.fas.org/sgp/jud/aipac/memop110107.pdf

In the same Opinion, Judge Ellis restated the stringent standard that
he has set for the prosecution to win a conviction on charges of
conspiracy to violate the Espionage Act by oral disclosure of national
defense information (NDI):

"The government must prove beyond a reasonable doubt that... the
defendants (i) knew that the information ... was NDI, i.e. knew that
the information was closely held by the government and that the
disclosure of the information would be damaging to the national
security, (ii) knew the persons to whom the disclosures would be made
were not authorized to receive the information, (iii) knew the
disclosures the conspiracy contemplated making were unlawful, (iv) had
reason to believe the information disclosed could be used to the injury
of the United States or to the aid of a foreign nation, and (v) intended
that such injury to the United States or aid to a foreign nation result
from the disclosures."

"The conspiracy charge fails absent proof of these mental state
elements," Judge Ellis wrote (pp. 9-10).

Also last week, Judge Ellis issued another Opinion approving a defense
request for authorization to subpoena testimony from fifteen current
and former officials, including Secretary of State Condoleezza Rice
(Secrecy News, 11/02/07).

"The government's refusal to comply with a subpoena in these
circumstances may result in dismissal or a lesser sanction," Judge
Ellis warned in that November 2 Opinion.

DOD REGULATION ON FORMULATING THE INTELLIGENCE BUDGET

A recently revised Defense Department regulation provides new detail on
the preparation of the annual intelligence budget request, and on the
documentation needed to support it.

The U.S. intelligence budget is comprised of two spending
"aggregations": the National Intelligence Program (NIP) and the
Military Intelligence Program (MIP).  (This configuration replaced the
former National Foreign Intelligence Program, Joint Military
Intelligence Program, and Tactical Intelligence and Related
Activities.)

The NIP budget, which totaled $43.5 billion in 2007 according to last
week's official disclosure, funds intelligence to support national
policy makers.  The MIP budget, which probably amounts to at least
another $10 billion, supports the Secretary of Defense, the military
services, and military commanders in the field.

In practice, the distinction between the NIP and the MIP is not crystal
clear, and several large "national" intelligence agencies -- including
NSA, DIA, NGA, NRO -- also receive funding through the MIP.

A Defense Department Financial Management Regulation on "Intelligence
Programs/Activities," dated June 2007, presents the definitions of the
intelligence budget aggregations, explains their classification levels,
and describes the documentation that must be submitted to Congress to
justify their appropriations.

     http://www.fas.org/irp/agency/dod/finman.pdf

RENDITIONS, AND MORE FROM CRS

Notable new reports from the Congressional Research Service include the
following.

"Renditions: Constraints Imposed by Laws on Torture," updated October
12, 2007:

     http://www.fas.org/sgp/crs/natsec/RL32890.pdf

"Director of National Intelligence Statutory Authorities: Status and
Proposals," November 2, 2007:

     http://www.fas.org/sgp/crs/intel/RL34231.pdf

"Burma and Transnational Crime," October 25, 2007:

     http://www.fas.org/sgp/crs/row/RL34225.pdf

"The Army's Future Combat System (FCS): Background and Issues for
Congress," updated October 11, 2007:

     http://www.fas.org/sgp/crs/weapons/RL32888.pdf

"Coast Guard Deepwater Program: Background, Oversight Issues, and
Options for Congress," updated October 10, 2007:

     http://www.fas.org/sgp/crs/weapons/RL33753.pdf

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_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
1725 DeSales St NW, 6th floor
Washington, DC  20036

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