The U.S. Defense Department is so far refusing to produce a report that discusses nuclear technology issues in Israel, in response to a researcher's request for information.
The report at issue is called "Critical Technology Issues in Israel and NATO Countries," written nearly three decades ago. It is not classified.
Grant Smith, founder of the Washington-based Institute for Research: Middle Eastern Policy, Inc., filed a request for the report under the Freedom of Information Act three years ago. When the government failed to produce the document, he followed up with a pro se complaint in September.
In a November answer, government lawyers argued simply that Smith had "failed to state a claim."
U.S. District Judge Tanya Chutkan is presiding over the matter and has expressed concern about the pace at which this case is proceeding.
"I'd like to know what is taking so long for a 386-page document," she said at a Nov.
21st hearing in federal court in Washington. "The document was located some time ago."
"It certainly wasn't our intention to circumvent the procedures in this case," said Special Asst. U.S. Attorney Laura Jennings. "Our thought was that it would, in fact, expedite the process."
The report "Critical Technology Issues in Israel and NATO Countries" appears to involve super computers and nuclear capability. It was cited but not identified by title in The Jerusalem Post in a 1990 article, "Supercomputers Slow in Coming."
Similarly, it was referred to in general terms in a 1995 issue of a publication called The Risk Report that discussed a dispute among U.S. federal agencies over whether to sell a powerful computer from Cray Research to a group of Israeli universities.
"The United States approved the sale of powerful computers that could boost Israel's well-known but officially secret A-bomb and missile programs," said the Risk Report article.
"A 1987 Pentagon-sponsored study found that Technion University, one of the schools in the network, was helping design Israel's nuclear re-entry vehicle. U.S. officials say Technion's physicists also worked in Israel's secret weapon complex at Dimona."
The article also said Hebrew University and the Weizmann Institute, two other Israeli institutions which, as members of the Inter-University Computation Center, would have access to the Cray supercomputer, had been cited in the same Pentagon study.
The push to get hold of the Pentagon report is set against the backdrop of the Nuclear Non-Proliferation Treaty.
Israel has not signed the treaty.
Iran, on the other hand, has signed the treaty.
In his complaint, Smith noted that the Weizmann Institute, Technion, and Hebrew University raise large sums of tax-exempt donations through affiliates in the United States.
The American Society for Technion-Israel Institute for Technology Inc., for example, reported raising more than $65 million in tax-exempt contributions in 2011.
According to publicly available tax filings by non-profits, the American Committee for the Weizmann Institute of Science reported $59 million in tax-exempt contributions in 2012, and American Friends of Hebrew University raised nearly $48 million in that same year.
Smith's complaint noted that those substantial sums are sent to Israel in addition to the $86 billion in direct foreign aid Israel has received from U.S. taxpayers since 1987 when the Pentagon report was written.
"The Symington Amendment to the Foreign Assistance Act of 1961 prohibits most U.S. foreign aid to any country found trafficking in nuclear enrichment equipment or technology outside international safeguards," said Smith's complaint. "The Glenn Amendment of 1977 to the Foreign Assistance Act of 1961 calls for an end to U.S. foreign aid to countries that import nuclear reprocessing technology."
On the same day as the Nov. 21st court hearing over the government's delay in producing the report, government lawyer Jennings filed a motion saying that "non-disclosure" agreements applied to the report. "We've become aware of these non-disclosure agreements that apply," she said at the hearing. "We'll now need to do a line by line review."
Smith, representing himself, said:
"So what we've seen most recently is that the government is now coming up with novel ways to try and delay this by talking about mandatory disclosure reviews. We don't think it's meaningful that their captive think tank may have signed NDAs. Perhaps they even have a sock puppet in the Pentagon that signs NDAs on their behalf. It would be the same from our perspective."
Judge Chutkan answered, "I'm not willing to characterize the government responses as necessarily trying to be evasive or deceptive."
During the Nov. 21st hearing, Judge Chutkan asked DOD counsel Mark Herrington how long ago the document had been located.
"Quite a while ago," he answered.
"But Mr. Herrington, this case was filed on September 23," the judge continued. "We are talking about one document that's 386 pages long. I've reviewed my share of documents in my career. It should not take that long to review that document and decide what needs to be redacted."
Describing the Defense Department as "a gigantic bureaucratic machine," Herrington reiterated the government position that it was in fact trying to eliminate delays in producing the report. He said he thought the government could meet a deadline imposed by the judge for responding to Smith's complaint.
"We were hoping to have had a decision two days ago," he explained. "Came close, didn't quite get there."
"Didn't quite get where?" asked Chutkan.
"Making a determination to release the document," replied Herrington, who proceeded to cite Thanksgiving week as an additional complication.
"What we'd like the Court to do," Smith answered, "is to realize that the Department of Defense has failed to respond. If it's necessary that we file an additional motion requesting your personal in-camera review of the document in question, that's what we'd like to do."
Chutkan concluded the hearing by granting a short extension of time to the government. "And I want to caution the government that I'm going to be looking with disfavor on further motions for extensions of time," she warned.
In a late December filing, the government against asked for more time, calling their motion a request for a schedule "modification."
The motion also changed the government's explanation for the ongoing delay, saying the government was checking with Israel to see if its government had any objections to the report's release. There was no further mention of any non-disclosure agreement.
In his response, Smith said: "Given the Defendant's overall bad faith approach to the Plaintiff's public interest FOIA, in camera review by this Court would now be the most efficient and fair way to determine their release status."
A ruling on Smith's request for release of the report "Critical Technology Issues in Israel and NATO Countries" could come as soon as Friday.
By JANET MCMAHON
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