Posts from March, 2006

The Law, The Constitution and Warrantless Surveillance

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.

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).

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.

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).

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 (pdf) 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).

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.

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.

“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.

“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.

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.

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

“Iraq: Elections, Government, and Constitution,” updated March 13, 2006.

“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.

National Security Letters and Administrative Subpoenas (CRS)

National security letters are investigative tools used in foreign intelligence investigations to compel the disclosure of certain transactional information such as financial records and communications data.

NSLs have become controversial due to their increasing use by government agencies (primarily the FBI), and because of the non-disclosure requirements and the limited judicial oversight involved in their use.

A new report (pdf) from the Congressional Research Service sorts through the five statutes that authorize the use of National Security Letters, including the latest amendments which provide for a measure of judicial review.

See “National Security Letters in Foreign Intelligence Investigations: Legal Background and Recent Amendments,” March 17, 2006.

An abbreviated version of the same report, without footnotes or appendices, is “National Security Letters in Foreign Intelligence Investigations: A Glimpse of the Legal Background and Recent Amendments” (pdf), March 21, 2006.

Administrative subpoenas used in criminal investigations are approximately analogous to national security letters used in foreign intelligence investigations. They are the subject of another new report from the Congressional Research Service.

For extended background on administrative subpoenas, see “Administrative Subpoenas in Criminal Investigations: A Brief Legal Analysis” (pdf), March 17, 2006.

An abbreviated version of that report is “Administrative Subpoenas in Criminal Investigations: A Sketch” (pdf), March 17, 2006.

CRS does not make its publications directly available to the public. Copies of these reports were obtained by Secrecy News.

Some More New CRS Reports

Some more notable new reports from the Congressional Research Service are the following.

“Material Support of Terrorists and Foreign Terrorist Organizations: Sunset Amendments in Brief,” updated March 17, 2006.

“Tactical Aircraft Modernization: Issues for Congress,” updated March 16, 2006.

“Syria: U.S. Relations and Bilateral Issues,” updated March 13, 2006.

“AIDS in Africa,” updated March 9, 2006.

“Internet Development and Information Control in the People’s Republic of China,” February 10, 2006.

Army Issues New Manual on Unmanned Aerial Systems

The U.S. Army has issued a new manual (large pdf) on unmanned aerial systems (UAS), which are increasingly used in a wide spectrum of reconnaissance, surveillance and targeting missions.

UAS include what were formerly referred to as unmanned aerial vehicles (UAVs), plus their payloads and support systems.

The new Army manual includes fresh information on Army UAS programs and operations.

A copy of the unclassified manual was obtained by Secrecy News.

See “Army Unmanned Aircraft System Operations,” Field Manual Interim FMI 3-04.155, dated 4 April 2006 (183 pages in a large 9 MB PDF file).

The Thomas Butler Affair

Dr. Thomas C. Butler is one of the rather few people in the history of humanity of whom it can be truly said that he helped to save millions of lives. A specialist in the plague and other infectious diseases, his research helped lead to the adoption of oral hydration as a standard treatment for diarrhea in the Third World and elsewhere.

But in post-9/11 America, Dr. Butler is also a convicted criminal.

Because he apparently committed certain violations of the laws governing the transport of toxic materials used in his medical research, he was investigated and prosecuted as if he were a potential terrorist. In 2004, he was sentenced to a term of two years in prison, which he recently completed.

The strange tale of Dr. Butler is explored this week in an exhaustive seven-part series in the Cleveland Plain Dealer beginning March 26.

See “Plagued by Fear” reported by John Mangels.

Some related material in support of Dr. Butler is available from the Federation of American Scientists.