Posts from April, 2011

Grand Jury May Be Investigating WikiLeaks

A grand jury has been empaneled in the Eastern District of Virginia to investigate a possible violation of the Espionage Act involving the computer-based acquisition of protected government information concerning national defense or foreign relations.  In other words, the Grand Jury seems to be investigating WikiLeaks.

Glenn Greenwald of reported that a summons to appear before the Grand Jury on May 11 was served on an unidentified recipient in Cambridge, MA. He also posted a copy of the document.  See “FBI serves Grand Jury subpoena likely relating to WikiLeaks,” April 27.

The initial hurdle to any possible prosecution of WikiLeaks is to identify a specific crime that it may have committed.

The subpoena suggests that the path chosen by prosecutors (as predicted) is to allege a conspiracy to violate the Espionage Act under 18 USC 793(g).  But like much of the Espionage Act, the practical meaning of this statute is quite unclear.  So is its application here, beyond the bare implication that WikiLeaks instigated the unlawful transfer of information in a manner that is not protected by freedom of the press.

As things stand, everyone agrees that information gained by committing a crime is not protected by the First Amendment.  One cannot expect to break into a building to steal documents and publish them, and then invoke freedom of the press.

But what constitutes a crime?  Is it asking a question about a topic that one knows to be classified?  Buying someone lunch in the hope that he may divulge closely held information?  Indicating a willingness and a capacity to receive unauthorized disclosures confidentially?  These would hardly seem to qualify as criminal acts since they are ordinary conventions of national security reporting.

What makes this case both important and dangerous is that by pursuing this line of attack, the reported Grand Jury investigation of WikiLeaks may “clarify” such speculative matters, thereby generating new limitations on freedom of the press.

Attorney Challenges “Gag Order” on WikiLeaks Docs

The ongoing release of another large collection of classified documents by WikiLeaks concerning Guatanamo detainees creates a new set of challenges and opportunities for the detainees’ attorneys.  But the government says the attorneys cannot discuss those matters in the public domain, even though anyone else can.

Attorney David Remes petitioned a court yesterday to release him from all such restrictions regarding publicly available WikiLeaks documents.  His petition (pdf) was posted by Ben Wittes of Lawfare blog.

It was also reported by Scott Shane in the New York Times today, and discussed by Marcy Wheeler at EmptyWheel.

The petition argues that not only are continuing controls on publicly available information futile, they are unjust.  That is, they inhibit the attorney’s ability to act in the best interests of his clients by correcting errors or identifying exculpatory factors.

A response by the government will follow.

Restrictions on Use of WikiLeaks Hamper CRS

Restrictions on the use of published WikiLeaks material remain in effect in much of the government, the New York Times reported yesterday, causing considerable confusion and frustration.  See “Detainees’ Lawyers Can’t Click on Leaked Documents” by Scott Shane, April 27.

“Add me to the list of grumblers,” said a respected national security analyst at the Congressional Research Service, where employees have been prohibited from accessing WikiLeaks documents online.

“This whole thing is so [expletive] stupid,” he said yesterday. “Even staff with clearances can’t read the cables, let alone quote them. One reason is that we can’t read classified materials on unclassified computers and we have no classified computers.”

“We can now quote news stories which cite the cables, but we have no way of verifying whether the article correctly quotes the cables.”

“This is hampering CRS work and management knows it,” the analyst said.  “There’s just no leadership on this issue.”

The Costs of War, and More from CRS

As of March 2011, Congress had approved a total of more than $1.2 trillion dollars for costs associated with the wars in Iraq, Afghanistan and other post-9/11 “war on terror” operations, the Congressional Research Service said in its most recent update on the subject.  See “The Cost of Iraq, Afghanistan, and Other Global War on Terror Operations Since 9/11,” March 29, 2011.

Other new or newly updated CRS reports include the following (all pdf).

“Afghanistan Casualties: Military Forces and Civilians,” April 6, 2011.

“The Federal Bureau of Investigation and Terrorism Investigations,” April 27, 2011.

“U.S. Special Operations Forces (SOF): Background and Issues for Congress,” March 28, 2011.

“Sensitive Covert Action Notifications: Oversight Options for Congress,” April 6, 2011.

“Covert Action: Legislative Background and Possible Policy Questions,” April 6, 2011.

Most Agencies Are Out of Compliance with Secrecy Policy

Most executive branch agencies failed to meet a December 2010 deadline set by President Obama to issue implementing regulations for his December 2009 executive order on national security classification policy, dealing a setback to the Administration’s classification reform agenda.

Despite last year’s presidential deadline, “As of March 15, 2011, only 19 of 41 agencies have issued their implementing regulations in final form,” according to the latest Annual Report to the President (pdf) from the Information Security Oversight Office (ISOO), made public today.

“Given that less than half of agencies have issued implementing regulations in the 15 months since the President issued the order and the 9 months since ISOO revised the government-wide implementing regulations for the order, it is clear that the means by which agencies modify and issue implementing regulations are not sufficient to accommodate changes in national security policy,” the ISOO Report said.

“ISOO sees this as the biggest impediment to implementing the reforms called for by the President and as a real threat to the efficient and effective implementation of the overall classification system.”

Among other things, the delayed implementation of the executive order means that many agencies have still not begun to perform the Fundamental Classification Guidance Review that requires them to seek out and eliminate obsolete classification requirements.

ISOO Acting Director William A. Cira said that even with the lag in implementation, many agencies were actually moving faster to adopt the new classification order than they had done in the past.  For example, after President Clinton issued executive order 12958 in April 1995, the Department of Defense did not issue an implementing regulation for nearly two years.  Following President Bush’s 2003 executive order 13292, the Department of Defense never got around to issuing an updated regulation at all!

On the other hand, no previous President had personally set a deadline for agencies to adopt implementing regulations, as President Obama did in a December 29, 2009 memorandum.  This creates the awkward and disturbing circumstance that most affected agencies are now out of compliance with a direct presidential order.

That’s true, said Mr. Cira of ISOO, but it should be understood as a reflection of antiquated bureaucratic procedures, not as deliberate agency defiance of the President.

“In a lot of agencies, especially the larger ones, the bureaucratic processes for publishing formal regulations tend to be quite difficult and time consuming,” he said. “This can be just as frustrating for those people in the agency that have drafted the regulation and are trying to get it through the approval process as it is for anyone outside the agency.”

The ISOO annual report is one of very few published sources of official data on classification and declassification activity in the government.  This year, for example, the report said that agencies generated 224,734 original classification decisions in FY2010, a hefty 22.6 percent increase from the year before.

But the impact of the annual reports is hard to establish.  In recent years, the President has not even acknowledged receipt of the report, much less engaged with its findings.

Court Rejects Agency’s National Security Claim

In Freedom of Information Act litigation, courts will almost always defer to a government agency when it asserts that national security requires that certain information remain classified.  Judges say they are reluctant to “second guess” agency national security experts, and there is a substantial body of case law that discourages them from doing so.

But earlier this month, Judge Richard W. Roberts of the DC District Court considered an agency’s national security claim, found it unpersuasive, and rejected it (pdf).

In that FOIA case, Center for International Environmental Law vs. the Office of the United States Trade Representative, the plaintiff sought a USTR document concerning the U.S. negotiating position on the Free Trade Agreement of the Americas.  USTR said the document was classified because the international negotiations were confidential and the document’s disclosure would result in damage to U.S. foreign relations.

“USTR argues that release of document 1 would constitute a breach of its agreement with the other nations participating in the FTAA negotiations. [USTR] states that [t]here is an understanding among the 34 participating governments, consistent with longstanding practice in multiparty trade negotiations, that they will not release to the public any negotiating documents they produce or receive in confidence in the course of the negotiations unless there is a consensus among the 34 governments to do so.”

But remarkably, the judge didn’t buy it, particularly since it was a question of releasing a U.S. document, not a foreign document.

USTR “has not shown it likely that disclosing document 1 would discourage foreign officials from providing information to the United States in the future because those officials would have no basis for concluding that the United States would dishonor its commitments to keep foreign information confidential,” he concluded.

“Although a court must defer to agency affidavits predicting harm to the national security, ‘[d]eference… does not mean acquiescence’,” Judge Roberts wrote.  See the April 12, 2011 Memorandum Opinion here.

The ruling that international negotiations cannot necessarily be used as a pretext for classifying U.S. government information may have important ramifications in other policy areas.

So, for example, the U.S. government currently makes less information about the makeup of the U.S. nuclear arsenal under the New START Treaty than it previously did under the START regime, observed Hans Kristensen of FAS last month.

Although such stockpile information is generated and is regularly exchanged with the government of Russia under the provisions of New START, it is currently classified and has still not been made publicly available.  If it became necessary to challenge the classification of this information in court, then Judge Robert’s new ruling might offer an apt precedent.

“Although the Constitution permits the judiciary to play a role in judging government secrecy claims and Congress has repeatedly endorsed that role, most prominently in the Freedom of Information Act, judges have been reluctant to question Executive Branch secrecy,” observed Meredith Fuchs in a 2006 law review article that argued for a more active judicial role in reviewing classification decisions. “Without judicial intervention…, the incentives on the Executive Branch to overreach far outweigh any checks on excessive secrecy.”

R.I.P. — Jeanne Schauble, Michael Resnick

We were sad to learn, belatedly, of the recent deaths of two familiar figures in the rather small world of government secrecy policy.

Jeanne Schauble, the longtime director of declassification at the National Archives, died last October.  She helped oversee and implement the declassification of more than a billion pages of historical records since 1995.  Her NARA colleague Michael Kurtz said last year that “she set a high standard for government service.”

Michael Resnick was Senior Director of Information Sharing Policy at the White House until his death from cancer in February.  If the current policy on Controlled Unclassified Information is not a disaster — and so far, it’s not — that is largely because Mr. Resnick was willing to engage in sometimes heated discussions with public interest groups and to reconsider his own position.

As far as we could tell, no obituaries for Ms. Schauble or Mr. Resnick appeared in any national newspaper.  They weren’t famous.  But they were honest, honorable and skilled public servants.  Anyone who crossed their paths will remember them.

Various New Items from CRS

New reports from the Congressional Research Service on various topics include these (all pdf):

“Non-Governmental Organizations’ Activities in North Korea,” March 25, 2011.

“Turkey-U.S. Defense Cooperation: Prospects and Challenges,” April 8, 2011.

“FY2011 Appropriations in Budgetary Context,” April 14, 2011.

“Judicial Discipline Process: An Overview,” April 7, 2011.

“Effects of Radiation from Fukushima Daiichi on the U.S. Marine Environment,” April 15, 2011.

CIA Declassifies Documents from World War I

The Central Intelligence Agency announced yesterday that it had declassified six World War I-era documents describing the use of “invisible ink” to convey secret messages.  The CIA presented the new disclosure as an indication that the declassification process was functioning properly, not that it was dysfunctional.

“These documents remained classified for nearly a century until recent advancements in technology made it possible to release them,” CIA Director Leon E. Panetta said in a news release. “When historical information is no longer sensitive, we take seriously our responsibility to share it with the American people.”

“The CIA recognizes the importance of opening these historical documents to the public,” added Joseph Lambert, the Agency’s Director of Information Management Services. “In fiscal year 2010 alone, the Agency declassified and released over 1.1 million pages of documents.”

But there are a few things the CIA news release did not say.

These World War I documents remained classified not because they were forgotten or overlooked, but because the CIA had vigorously opposed their release.  In response to a 1998 FOIA lawsuit brought by the James Madison Project, the CIA argued that “some of the methods described in the documents in question are still used by the CIA, and that third parties inimical to the interests of the United States may not know which of the [invisible ink] formulas are still considered reliable by the CIA and approved for use by its agents.”  In 2002, a federal court accepted that argument and ruled (pdf) in favor of the CIA, affirming the secrecy of the documents.

It is unknown what “recent advancements in technology,” if any, might have occurred between 2002 and the present to compel a complete reversal in CIA’s view on declassification of these records.

An alternate explanation for the new release is that the records were subject to a pending mandatory declassification review (MDR) request by attorneys Mark Zaid and Kel McClanahan.  If CIA had continued to deny disclosure of the documents, that request could have been referred to the Interagency Security Classification Appeals Panel, which has been known to view extreme secrecy claims with skepticism, and often to overturn them. [Update: In fact, the request was appealed to the Panel in December 2010, but it had not yet been acted upon when CIA decided to disclose the requested documents.]

Also, if the CIA were to faithfully comply with the President’s executive order on classification — which not all executive agencies do — then it would have been obliged to release these documents (and all other records older than 75 years) by mid-2013 unless it requested and received special permission from the Interagency Panel.

There is no glass that is small enough to be made “half full” by the CIA’s new disclosures.  But the latest release may still be viewed charitably, said William J. Bosanko, executive for agency services at the National Archives and former director of the Information Security Oversight Office.

“I see this as a sign the sick system is starting to get well,” Mr. Bosanko said. He added cheerfully that there are “lots of chances to make things better.”

In the early 1990s, the massive backlog of classified historical attention was just beginning to come to broad public attention.  In those days, the scale and persistence of official secrecy often elicited embarrassment from government officials.

“Obviously it seems absurd on the surface,” said then-ISOO director Steven Garfinkel, referring to the fact that a World War I document had just been discovered to still be classified.  That document, dated April 15, 1917, had been “the oldest classified document” until it was finally declassified and released in 1992 in response to a Freedom of Information Act request from the Federation of American Scientists.  It is a substantive, lively and quite interesting account (pdf) of “the intelligence system necessary in case U.S. troops are ordered to the continent.”

“Within the next decade there’s going to be a need for a complete re-examination of the issue of secrecy,” Mr. Garfinkel told Tim Weiner of Knight-Ridder Newspapers in December 1991. “The secrecy issue is a Cold War issue and the world is changing.”

Secrecy Overwhelms U.S. Historical Record

The Department of State is not fulfilling its obligation to produce a “thorough, reliable, and accurate” account of U.S. foreign policy and there is no foreseeable likelihood that it will do so, an official historical advisory committee told the Secretary of State this month.

The Department’s “Foreign Relations of the United States” (FRUS) series is required to fully document the history of U.S. foreign policy no later than 30 years after the fact, but that’s not happening.

“No progress has been made toward bringing the [FRUS] series into compliance with the statutory requirement that volumes be published 30 years after the events they document,” said the new annual report of the Advisory Committee on Historical Diplomatic Documentation.  “Indeed, the 6 volumes published in 2010 did not even meet the target set by the [State Department Historian's] Office in 2009.”

Among other obstacles, “the CIA’s resistance to declassifying documents that are already in the public domain presents a severe challenge,” the Committee said.

But CIA is not the only obstacle.  “The Departments of Defense, Energy, and Justice (including the FBI) have often been as [culpable] if not more culpable than the CIA for the delays.”

“The HAC [Historical Advisory Committee] is pessimistic about [the Historian's Office's] prospects for meeting its statutory obligations if its current performance continues,” the new annual report concluded.

“The current records management system does not ensure those records of historical significance are identified in such a way as to promote their timely review for declassification and public release,” wrote Adm. William Studeman, former Acting Director of Central Intelligence, in the blog of the Public Interest Declassification Board last week.  “There is a great danger that, unless changes are made, our nation will be unable to document these historical decisions for future generations,” he said.

Last week, the National Security Archive filed a FOIA lawsuit against the Central Intelligence Agency seeking disclosure of an official CIA history of the 1961 Bay of Pigs invasion.  “The CIA is holding history hostage,” said the Archive’s Peter Kornbluh.