[NYTr] FAS Secrecy News - 11/26/2007
All the News That Doesn't Fit
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Mon Nov 26 15:54:41 EST 2007
SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2007, Issue No. 114
November 26, 2007
Secrecy News Blog: http://www.fas.org/blog/secrecy/
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** AIPAC COURT RULES ON CLASSIFICATION MARKINGS, JUROR BIAS
** INTELLIGENCE OVERSIGHT DEFLECTED BY APPROPRIATORS
** WEAK AND FAILING STATES, AND MORE FROM CRS
** OPEN SOURCE CENTER VIEWS MAFIA TURMOIL
AIPAC COURT RULES ON CLASSIFICATION MARKINGS, JUROR BIAS
Classification markings will be removed from classified documents that
are admitted into evidence in the upcoming trial of two former
officials of the American Israel Public Affairs Committee (AIPAC), a
court ruled earlier this month. The former AIPAC officials, Steven J.
Rosen and Keith Weissman, are accused of unauthorized receipt and
disclosure of classified information.
"To see this onslaught of documents marked Secret, Top Secret, NOFORN
-- it creates an atmosphere that is just unfair," said Judge T.S.
Ellis, III at a November 8 hearing.
"I find that looking at this mass of documents, as I have, with all of
these prominent inch-and-a-half stamps of Secret, Secret, creates I
think unfair prejudice [and] likelihood of confusion with the jury."
A legal issue arises because such classification markings "have both
[inadmissible] hearsay and [admissible] nonhearsay purposes," he said.
The legitimate nonhearsay purpose is that the markings "show that the
Government intended that this be closely held information."
However, to the extent that the markings indicate the classifier's
"opinion as to whether disclosure of this material would be damaging to
the national interest, that's clearly hearsay" and is impermissible,
particularly since the classifier is not present at trial.
After discussing the issue at length, Judge Ellis ruled that "the bold,
large classified markings for any documents that are admitted will be
removed." Instead, there will be a stipulation by the parties that the
documents were classified and the judge will instruct the jury to
consider classification status only for the purpose of determining
whether the information was closely held or not.
The November 8 hearing also considered the question of juror bias.
"There are very significant problems with selecting a jury in this case
owing to the nature of the case and owing to the publicity that this
case has been accorded," Judge Ellis said, noting "that there may be an
animus in prospective jurors that should not be operating. And of
course, I am referring to anti-Semitism."
He asked the parties to draft a questionnaire for use in the jury
selection process.
"You don't ask people, are you an anti-Semite and expect to get a
straightforward answer. But I leave to you how that can be reasonably
explored," he said.
A related legal question that remains unresolved is whether potential
jurors can be dismissed peremptorily based on their religion or
ethnicity.
"In other words, can the Government strike someone [from the jury] just
because his name ends in Stein or whatever, or can the defense strike
somebody because his name is Mohammed," Judge Ellis said.
The transcript of the November 8 hearing is not in the PACER system of
online federal court records, but a copy was obtained by Secrecy News.
See:
http://www.fas.org/sgp/jud/aipac/hr110807.pdf
The trial, which has been repeatedly postponed, will not take place
before March 2008.
INTELLIGENCE OVERSIGHT DEFLECTED BY APPROPRIATORS
The efficacy of intelligence oversight in the Senate has been
repeatedly undermined by procedural hurdles that enable the Defense
Appropriations Subcommittee to overrule actions taken by the Senate
Intelligence Committee, Senators complained earlier this month. To
remedy this concern, a new bill has been introduced that would transfer
budget appropriations authority to the Intelligence Committee.
This year, the Senate Intelligence Committee presented "four major
oversight initiatives in its [authorization] bill," said Sen.
Christopher S. Bond (R-MO) at a Committee hearing on November 13. But
in each case, "actions by the appropriations committee were completely
dissimilar."
A Memorandum of Agreement between the Committees that was supposed to
improve coordination between the authorizers and the appropriators has
failed in every significant respect, he said.
In a written statement, Sen. Bond referred obliquely to several
attempted actions by the Intelligence Committee that had been
overridden by appropriators to the detriment of national policy.
For example, because of resistance from appropriators, "It took until
recent time to end a program that, at the least, should have been
terminated a few years ago. Unfortunately, all told, the loss to the
taxpayers is astronomical, in the billions of dollars." This appears to
be a reference to the Future Imagery Architecture program.
See Senator Bond's November 13 statement here:
http://www.fas.org/irp/congress/2007_hr/111307bond.pdf
Related statements and testimony from the SSCI hearing on intelligence
oversight are here:
http://www.fas.org/irp/congress/2007_hr/index.html
The proposed Senate Resolution 375 that would grant appropriation
authority to the Intelligence Committee is here:
http://www.fas.org/irp/congress/2007_cr/sres375.html
The recent decision to declassify the annual budget of the National
Intelligence Program now makes it possible to remove the intelligence
budget from concealment in the defense budget and to appropriate it
independently, thereby strengthening oversight and accountability.
For this and other reasons, budget declassification is the most
important involuntary public disclosure of intelligence information at
least since declassification of the August 6, 2001 President's Daily
Brief item "Bin Laden Determined to Strike in U.S."
But significantly, the intelligence oversight committees, which have
been criticized for ineffective leadership on several controversial
policy fronts, did not play a leading role in intelligence budget
disclosure either.
WEAK AND FAILING STATES, AND MORE FROM CRS
Noteworthy new reports from the Congressional Research Service obtained
by Secrecy News include the following.
"Weak and Failing States: Evolving Security Threats and U.S. Policy,"
November 15, 2007:
http://www.fas.org/sgp/crs/row/RL34253.pdf
"Pakistan's Nuclear Weapons: Proliferation and Security Issues,"
updated November 14, 2007:
http://www.fas.org/sgp/crs/nuke/RL34248.pdf
"The Cost of Iraq, Afghanistan, and Other Global War on Terror
Operations Since 9/11," updated November 9, 2007:
http://www.fas.org/sgp/crs/natsec/RL33110.pdf
"Judicial Security: Responsibilities and Current Issues," updated
November 13, 2007:
http://www.fas.org/sgp/crs/misc/RL33464.pdf
"Pandemic Influenza: An Analysis of State Preparedness and Response
Plans," September 24, 2007:
http://www.fas.org/sgp/crs/homesec/RL34190.pdf
"The Public Health and Medical Response to Disasters: Federal Authority
and Funding," September 19, 2007:
http://www.fas.org/sgp/crs/misc/RL33579.pdf
OPEN SOURCE CENTER VIEWS MAFIA TURMOIL
Italian news reports regarding upheaval in the organization of the
Sicilian mafia were synthesized and summarized in a new analysis from
the Open Source Center, a component of the Office of the Director of
National Intelligence.
"The recent arrest of mafia fugitive Salvatore Lo Piccolo and the April
2006 capture of Bernardo Provenzano, the Sicilian mafia's 'boss of
bosses,' have highlighted the succession challenge over the position of
top boss within the organization."
"Open source reporting suggests that the ensuing power struggle,
following Provenzano's arrest, led not only to increased violence in
Sicily but also to likely renewed cooperation between the Sicilian
mafia and the US-based Gambino family. Their growing relationship may
open new possibilities for the Sicilian mafia to launder money through
US institutions."
See "Changes in Mafia Leadership Reveal New Links to US-Based La Cosa
Nostra," DNI Open Source Center, November 19, 2007:
http://www.fas.org/irp/news/2007/11/osc111907.html
_______________________________________________
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
1725 DeSales St NW, 6th floor
Washington, DC 20036
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email: saftergood at fas.org
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