[net-gold] Secrecy News -- 08/25/11

  • From: "David P. Dillard" <jwne@xxxxxxxxxx>
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  • Date: Thu, 25 Aug 2011 11:28:09 -0400 (EDT)


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Date: Thu, 25 Aug 2011 09:57:33 -0400
From: Steven Aftergood <saftergood@xxxxxxx>
To: Steven Aftergood <saftergood@xxxxxxx>
Subject: Secrecy News -- 08/25/11

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SECRECY NEWS

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from the FAS Project on Government Secrecy
Volume 2011, Issue No. 81
August 25, 2011

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Secrecy News Blog:

http://www.fas.org/blog/secrecy/

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**     COURT DENIES MOTIONS TO DISMISS KIM LEAK CASE

**     A CORRECTION ON NUCLEAR SECRECY

**     NRO HAS "MOST AGGRESSIVE" LAUNCH RECORD IN 25 YEARS

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COURT DENIES MOTIONS TO DISMISS KIM LEAK CASE

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A federal court yesterday rejected multiple defense motions to dismiss
Espionage Act charges against former State Department contractor Stephen
Kim, who is accused of leaking classified information to a Fox News
reporter.

Mr. Kim's defense team had marshalled a series of seemingly ingenious
arguments for dismissal.  The use of the Espionage Act to punish "political
crimes" such as leaking is prohibited by the Constitution's Treason Clause,
one defense motion said.  Further, the language of the statute appears to
prohibit unauthorized disclosure of tangible items, such as documents, not
"information" which cannot be surrendered on demand.  Also, the defense
argued, the Espionage Act is impermissibly vague and ambiguous with respect
to oral disclosures.  Finally, prohibitions against leaks are enforced and
prosecuted rarely and unpredictably, rendering those rare cases
intrinsically unfair.

None of these arguments gained any traction with the court, though the
defense discussion of the Treason Clause was deemed "compelling and
eloquent." Judge Colleen Kollar-Kotelly dismissed all of the defendant's
objections in a memorandum opinion on August 24.

        http://www.fas.org/sgp/jud/kim/082411-order.pdf

"To the extent that Defendant intends to argue that the information he is
charged with leaking was previously disclosed or was not properly
classified, he may do so as part of his defense," Judge Kollar-Kotelly
wrote, "but such arguments do not render the statute vague" or otherwise
invalid.

The new ruling probably does not come as a big surprise to any of the
parties.  The surprise would have been if the court had overturned or
reinterpreted the Espionage Act.  Instead, the ruling leaves the existing
legal apparatus in place, and clears the path for trial.

The Kim case is one of five Espionage Act prosecutions undertaken by the
Obama Administration due to alleged unauthorized disclosures of classified
information.  A New York Times editorial today scolded the Administration
for what it called the "misguided" use of the Act.

        http://www.nytimes.com/2011/08/25/opinion/why-is-that-a-secret.html

"With no allegation of a motive or intended harm to the US, the government's
use of Stephen as an example to deter the leaking of information is
inappropriate," according to a statement on Mr. Kim's own web site.

        http://www.stephenkim.org/


A CORRECTION ON NUCLEAR SECRECY

On August 22 ("Some New Wrinkles in Nuclear Weapons Secrecy"), Secrecy News
mistakenly wrote that the SILEX uranium enrichment process is "a unique case
in which information that was privately generated was nevertheless
classified by the government.  As far as could be determined, the decision
to classify this non-governmental information under the Atomic Energy Act is
the first and only time that such authority has been exercised."  That was
inaccurate.

Dr. Andrew Weston-Dawkes, the director of the Department of Energy Office of
Classification, said that offhand he was aware of at least one other such
case of classification of privately-generated information.  It involved "an
AVLIS-like technology," he said, referring to "atomic vapor laser isotope
separation."

Bryan Siebert, the former director of the DOE Office of Classification, said
his recollection was that some of the laser fusion technology developed by
the private company KMS Fusion in the early 1970s was also considered to be
classified, "a long time before SILEX."  An account of the KMS Fusion case
--  which, he said, is "inaccurate in many ways" -- is available from
Wikipedia here:

        http://en.wikipedia.org/wiki/Kip_Siegel

Beyond that, said Dr. Weston-Dawkes, "there's a long history of us going out
to people [in the private sector] saying 'you're doing stuff' [that needs to
be reviewed for classification]."

He pointed to a 1972 public notice issued by the Atomic Energy Commission.
It instructed "any person" working on isotope separation techniques to
notify the Commission whenever a separation process has been demonstrated
"so the Commission can give him appropriate classification and reporting
guidance."

        http://www.fas.org/sgp/othergov/doe/aec1972.pdf

There are many other instances in which individual authors have tangled with
Department of Energy classification officials concerning the publication of
information that DOE believed to be classified, such as Howard Morland's
article on the H-Bomb that was the subject of The Progressive case in 1979.
But those disputes involved previously generated and previously classified
information, not qualitatively new inventions or developments.


NRO HAS "MOST AGGRESSIVE" LAUNCH RECORD IN 25 YEARS

The National Reconnaissance Office (NRO), which builds, launches and
operates the nation's intelligence satellites, has been unusually active
over the past year.

"We are nearly through the most aggressive launch campaign in over 25
years," said Betty J. Sapp, the NRO Principal Deputy Director, at a March
15, 2011 hearing of the House Armed Services Committee.  The record of that
hearing was published last month.

"We have successfully launched five satellites into orbit in the last six
months, with one more launch planned next month," she said in March.  "These
successful launches have been a very important and visible reminder of the
space reconnaissance mission NRO started 50 years ago, and continues with
such great success today."

The full record of the March 15 hearing provides an unclassified overview of
national security space programs.  See "Budget Request for National Security
Space Activities," House Armed Services Committee.

        http://www.fas.org/irp/congress/2011_hr/space.pdf

Among other interesting points raised at the hearing, Gen. William L.
Shelton of Air Force Space Command discussed the Air Force's reliance on
NOAA's aging Advanced Composition Explorer (ACE) satellite to detect
disruptive solar activity.

"Located at a stationary point approximately 1 million miles between the
Earth and the Sun, it gives us 30-90 minutes warning before the detected
solar disturbance reaches the Earth and our space assets," Gen. Shelton said
in response to a question for the record.  "This enables us to implement
measures to protect our space systems and services."

This year's 50th anniversary of the NRO (established in 1961) will be
accompanied by some new declassification activity.  "Almost all" of the
historical intelligence imagery from the KH-9 satellite (1971-1986) will be
declassified within a few months, said Douglas G. Richards of the Joint
Staff at an August 23 forum sponsored by the National Declassification
Center.

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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/

To SUBSCRIBE to Secrecy News, go to:
     http://www.fas.org/sgp/news/secrecy/subscribe.html

To UNSUBSCRIBE, go to
     http://www.fas.org/sgp/news/secrecy/unsubscribe.html

OR email your request to saftergood@xxxxxxx

Secrecy News is archived at:
     http://www.fas.org/sgp/news/secrecy/index.html

Support the FAS Project on Government Secrecy with a donation:
     http://www.fas.org/member/donate_today.html

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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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