[net-gold] Secrecy News -- 04/06/12
- From: "David P. Dillard" <jwne@xxxxxxxxxx>
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- Date: Fri, 6 Apr 2012 18:48:00 -0400 (EDT)
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Date: Fri, 6 Apr 2012 09:09:51 -0400
From: Steven Aftergood <saftergood@xxxxxxx>
To: saftergood@xxxxxxx
Subject: Secrecy News -- 04/06/12
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SECRECY NEWS
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from the FAS Project on Government Secrecy Volume 2012, Issue No. 30
April 6, 2012
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Secrecy News Blog:
http://www.fas.org/blog/secrecy/
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** PROSECUTION OF ACCUSED CIA LEAKER WILL FACE LEGAL HURDLES
** DALE CORSON AND SCIENTIFIC FREEDOM
** THE U.S. INFANT MORTALITY RATE, AND MORE FROM CRS
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PROSECUTION OF ACCUSED CIA LEAKER WILL FACE LEGAL HURDLES
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Former CIA officer John C. Kiriakou was indicted yesterday on charges of
leaking classified information to the press in violation of the Espionage
Act and the Intelligence Identities Protection Act. He had been charged on
January 23 but the indictment was not filed and unsealed until yesterday.
http://www.fas.org/sgp/news/2012/04/kiriakou.html
Kiriakou is accused of violating the Intelligence Identities Protection Act
for allegedly disclosing the identity of a covert CIA officer, and of
violating the Espionage Act for allegedly disclosing national defense
information to persons not authorized to receive it. He is further accused
of making false statements to the CIA Publications Review Board in
connection with a manuscript he intended to publish.
While the indictment is a daunting blow to Mr. Kiriakou, who must mobilize
an expensive and burdensome defense, it is challenging in a different way
for the prosecution, which will face a variety of substantive and procedural
hurdles.
For one thing, it remains to be shown that the "covert officer" whose
identity was allegedly disclosed to a reporter by Kiriakou actually falls
within the ambit of the Intelligence Identities Protection Act. To be
subject to the Act's penalties, the covert officer in question -- whose
identity has not been publicly revealed -- must not only be under cover but
must also have served abroad within the past 5 years.
But the prosecution's biggest challenge, which may well be insurmountable,
will be to demonstrate to a jury that Mr. Kiriakou actually intended to harm
the United States or to assist a foreign nation by committing an
unauthorized disclosure.
The new indictment asserts generally that Kiriakou "had reason to believe
[the information] could be used to the injury of the United States and to
the advantage of any foreign nation," which is an element of the crime set
forth in the Espionage Act (18 USC 793).
Yet the meaning of this provision was construed by Judge T.S. Ellis III in a
2006 opinion in a way that would seem to make the prosecution of Mr.
Kiriakou particularly difficult. In light of that opinion, the government
will have to prove not merely that Kiriakou "had reason to believe" some
harm to the United States could possibly result from his action, but that he
deliberately intended to cause such harm.
This follows from the (alleged) fact that Kiriakou disclosed classified
"information" rather than classified "documents," as well as from the
seemingly duplicative Espionage Act use of the terms willfulness and reason
to believe, which Judge Ellis interpreted thus:
"If a person transmitted classified *documents* relating to the national
defense to a member of the media despite knowing that such an act was a
violation of the statute, he could be convicted for 'willfully' committing
the prohibited acts even if he viewed the disclosure as an act of
patriotism," Judge Ellis wrote. "By contrast, the 'reason to believe'
scienter requirement that accompanies disclosures of *information* requires
the government to demonstrate the likelihood of defendant's bad faith
purpose to either harm the United States or to aid a foreign government."
(see pp. 33-34).
http://www.fas.org/sgp/jud/rosen080906.pdf
But there is no known indication that Mr. Kiriakou, a former CIA
counterterrorism operations officer, had a bad faith purpose to harm the
United States, and every indication of the opposite.
"For more than 14 years, John worked in the field and at home, under
conditions of great peril and stress and at great personal sacrifice,
dedicating himself to protecting America and Americans from harm at home and
abroad," states a new website devoted to his cause.
http://www.defendjohnk.com/
DALE CORSON AND SCIENTIFIC FREEDOM
Dale R. Corson, a nuclear physicist who died last week, is best remembered
as the Cornell University President who peacefully led his campus through
the turmoil and upheaval of the Vietnam era. But he also played an
influential role in deliberations over the role of secrecy in scientific
research.
Dr. Corson chaired a 1982 committee of the National Academy of Sciences that
produced a landmark study entitled "Scientific Communication and National
Security," which became known as the Corson Report.
http://www.nap.edu/openbook.php?isbn=0309033322
In sober and measured tones, the Corson Report pushed back against calls for
increased secrecy in government-funded science:
"Current proponents of stricter controls advocate a strategy of security
through secrecy. In the view of the Panel security by accomplishment may
have more to offer as a general national strategy. The long-term security of
the United States depends in large part on its economic, technical,
scientific, and intellectual vitality, which in turn depends on the vigorous
research and development effort that openness helps to nurture... Controls
on scientific communication could adversely affect U.S. research
institutions and could be inconsistent with both the utilitarian and
philosophical values of an open society."
President Reagan cited Dr. Corson in National Security Decision Directive
189, "National Policy on the Transfer of Scientific, Technical and
Engineering Information," which seemed to affirm that fundamental research
should remain unrestricted to the maximum extent possible. In fact,
however, that directive imperfectly reflected the input of the Corson
Report, noted Harold C. Relyea in his book "Silencing Science: National
Security Controls and Scientific Communication."
http://www.fas.org/irp/offdocs/nsdd/nsdd-189.htm
Still, many of the issues identified by Dr. Corson and his colleagues, and
the concerns they expressed, remain current today and have not reached an
unequivocal resolution, as evidenced most recently by the latest U.S.
government policy on dual use biological research.
THE U.S. INFANT MORTALITY RATE, AND MORE FROM CRS
New or newly updated reports from the Congressional Research Service that
have not been made readily available to the public include the following.
The U.S. Infant Mortality Rate: International Comparisons, Underlying
Factors, and Federal Programs, April 4, 2012:
http://www.fas.org/sgp/crs/misc/R41378.pdf
The Peace Corps: Current Issues, April 4, 2012:
http://www.fas.org/sgp/crs/misc/RS21168.pdf
Women in Combat: Issues for Congress, April 5, 2012:
http://www.fas.org/sgp/crs/natsec/R42075.pdf
Navy Ford (CVN-78) Class Aircraft Carrier Program: Background and Issues for
Congress, April 4, 2012:
http://www.fas.org/sgp/crs/weapons/RS20643.pdf
Navy Ohio Replacement (SSBN[X]) Ballistic Missile Submarine Program:
Background and Issues for Congress, April 5, 2012:
http://www.fas.org/sgp/crs/weapons/R41129.pdf
Afghanistan: Post-Taliban Governance, Security, and U.S. Policy, April 4,
2012:
http://www.fas.org/sgp/crs/row/RL30588.pdf
National Science Foundation: Major Research Equipment and Facility
Construction, April 4, 2012:
http://www.fas.org/sgp/crs/misc/RS21267.pdf
The Strategic Petroleum Reserve: Authorization, Operation, and Drawdown
Policy, April 2, 2012:
http://www.fas.org/sgp/crs/misc/R42460.pdf
The Emergency Planning and Community Right-to-Know Act (EPCRA): A Summary,
April 5, 2012:
http://www.fas.org/sgp/crs/misc/RL32683.pdf
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_______________________________________________
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Secrecy News is written by Steven Aftergood and published by the Federation
of American Scientists.
The Secrecy News Blog is at:
http://www.fas.org/blog/secrecy/
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Support the FAS Project on Government Secrecy with a donation:
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_______________________
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Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: www.fas.org/sgp/index.html
email: saftergood@xxxxxxx
voice: (202) 454-4691
twitter: @saftergood
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