Posts from October, 2011

Ruling Implies That Espionage Act Could Cover Unclassified Info

Updated below

A court ruling that interpreted the term “national defense information” expansively to include unclassified, non-governmental information could open the door to a new series of anti-leak prosecutions under the Espionage Act, warned a petition that was filed in the Ninth Circuit Court of Appeals this week.

There is no statute that outlaws the mishandling of “classified information” generally.  That term is not used in the Espionage Act (18 USC793), which instead prohibits the unauthorized disclosure and transmission of information “relating to the national defense.”  To fall within the scope of the Espionage Act, information must pertain to the national defense and, previous court rulings have explained, it must also have been “closely held by the United States government.”  In practice, this limitation has almost always meant that only classified U.S. government information can be subject to the Espionage Act.

But in the case of Dongfan Greg Chung, who was convicted on charges of economic espionage, a court ruled (and an appeals court last month upheld) that Chung would be sentenced under the guideline for “gathering national defense information” even though none of the information he handled was classified or even held by the government.

“For the first time in any reported case, the panel decision construes the phrase ‘national defense information’ [in the sentencing guideline] to include unclassified material produced by, and in the possession of, a nongovernmental entity,” wrote attorney John D. Cline in an October 10 petition for rehearing.  “If permitted to stand, the panel decision will dramatically expand the scope [of this sentencing guideline].”

Furthermore, “The decision logically extends to the parallel language (‘relating to the national defense’) of [18 USC 793] as well, and it thus invites prosecutions under the Espionage Act for mishandling unclassified, nongovernment information, as long as that information has some bearing on the national defense and has not been made public,” wrote Mr. Cline, an experienced litigator of national security cases.

In affirming Mr. Chung’s conviction, an appeals court last month said the National Defense Information guideline was applicable in this case.  “Defendant [Chung] gathered and gave to Chinese officials nonpublic information related to the X-37 space vehicle, the Delta IV Rocket, the F-15 Fighter, and the Chinook Helicopter.  When transmitting that secret information, which related to the national defense, Defendant had the intention to advantage China,” said the September 26 appeals court ruling (appended to the Petition).

But that description “is wrong in two crucial respects,” Mr. Cline argued.  “First, most of the material to which the panel refers was not ‘secret’ in any respect, and none of it constituted a government secret.  None of the material was classified at the Secret (or any other) level, nor was there evidence that it was otherwise ‘closely held by the United States government’.”  (Moreover, “the record contains no evidence that Chung ‘transmitted’ any ’secret’ material to China,” he wrote.)

“Every reported decision applying [the national defense information sentencing guideline] has involved classified information, as has virtually every § 793 [Espionage Act] prosecution for the last sixty years,” the petition said.  “The panel decision marks a sharp and unjustified departure from this unbroken line of authority interpreting [the sentencing guideline] and § 793.”

The court’s expanded interpretation of “national defense” information “requires correction by the en banc Court, before the government seizes on it as a basis to expand the scope of the Espionage Act and the harsh sentencing guidelines that accompany it.”

“The issue has particular significance now,” the petition stated.  “The government has recently launched a spate of § 793 prosecutions against persons inside government who allegedly leaked classified information to reporters.  That use of the Espionage Act is itself controversial.  Armed with the panel decision, however, the government can now use § 793 and its accompanying sentencing guidelines to prosecute nongovernment persons who disclose (or even have unauthorized possession of) nongovernmentunclassified material, as long as a grand jury concludes that the person acted ‘willfully,’ the material is nonpublic, and it has some relationship to the national defense.”

“If such a dangerous and unprecedented expansion of the Espionage Act… is to be undertaken, Congress and the Sentencing Commission should do so — not the courts,” the petition concluded.

Update: The government filed its opposition on November 22, and on December 16 the Court of Appeals denied the petition.

Open Source Center Views China’s Huawei Technologies

The DNI Open Source Center produced a report this month profiling Huawei Technologies Co. Ltd., China’s largest telecommunications company.  See “Huawei Annual Report Details Directors, Supervisory Board for First Time,” October 5, 2011.

The report is based primarily on Huawei’s own website, which released new details earlier this year about the company’s management team.  “The release of this information may be intended to counter media accusations that the company lacks transparency,” the OSC said.

The OSC profile of Huawei was reported in “Chinese Telecom Firm Tied to Spy Ministry” by Bill Gertz, Washington Times, October 11.

The Open Source Center is a component of the Office of the Director of National Intelligence and is managed by the Central Intelligence Agency.  Although the Huawei report is unclassified and derived exclusively from public sources, the CIA does not permit public access to this report or similar OSC products on an authorized basis.

Presidential Directives Withheld From White House Website

Last Friday, White House officials made at least two public references to Presidential Policy Directives (PPDs).  PPD 1 was cited in a new executive order on computer security and PPD 8 was cited in a White House blog posting on disaster preparedness.  Each Directive is a significant expression of national policy.  Neither one is classified.  And yet neither of them — nor any other Obama Presidential Policy Directive — can be found on the White House website.

The White House decision not to make these documents available is a stark reminder of the incoherence of the Obama Administration’s transparency policy, and its inconsistent implementation.

“Information maintained by the Federal Government is a national asset,” President Obama wrote in his January 21, 2009 memo on transparency and open government. “My Administration will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use. Executive departments and agencies should harness new technologies to put information about their operations and decisions online and readily available to the public.”

But as the withholding of the presidential directives illustrates, not even the Obama White House itself complies with this policy, and so its impact in the farther reaches of the executive branch has been muted.  Those who seek access to Presidential Policy Directives must look elsewhere.

“I think it’s general policy that we can release a detailed summary of [PPDs],” said deputy national security adviser Michael Froman at a September 22, 2010 White House press briefing, “but as I understand the policy, [it is] not to release the PPDs themselves.”

In accordance with this PPD non-disclosure policy, the Department of State last month denied a FOIA request from Gavin Baker of OMB Watch for a copy of PPD 6 on global development policy.  The document was exempt from release, the State Department said, based on “the Presidential communication privilege.”

On the other hand, the full text of PPD 8 on national preparedness has been made available online by the Department of Homeland Security, despite the White House refusal to release it directly and notwithstanding any “Presidential communication privilege.”

Where secrecy has prevailed, unauthorized disclosures have also helped to fill the void in public access.  PPD 1 on the Organization of the National Security Council System was obtained from a confidential source shortly after its issuance in February 2009.  (The National Security Staff did release a copy of the directive after it was made available online.)  PPD 2 on Implementation of the National Strategy for Countering Biological Threats was obtained by the website Public Intelligence through an inadvertent disclosure on a server for U.S. military personnel.

Although no Presidential Policy Directives have been published on the White House website, one Obama Presidential Study Directive — PSD 10 on preventing mass atrocities — was in fact published by the White House last August.  This otherwise unremarkable step tends to confirm that there is no serious question of principle or privilege at stake in the decision to publish such directives.  Instead, the Obama Administration’s broader anti-transparency policy on presidential directives appears to be driven by an old-fashioned imperative of secrecy for its own sake.

WikiLeaks Prompts Stronger Safeguards for Classified Info

Inevitably and predictably, the U.S. Government has moved to systematically increase the monitoring of classified computer networks and to tighten the safeguarding of classified information in response to the indiscriminate publication of classified records by WikiLeaks.

An executive order issued on October 7 does not define the new security policies.  Instead, it establishes new mechanisms for monitoring, developing and implementing information system security policies, including a newly established Insider Threat Task Force.

In a gesture directed at whistleblowers, the new executive order states (sect. 7e) that “the entities created and the activities directed by this order shall not seek to deter, detect, or mitigate disclosures of information by Government employees or contractors that are lawful under and protected by” whistleblower protection statutes.

But while the systematic tracking of online behavior may not deliberately “seek” to deter or detect whistleblowers, it’s hard to see how it could fail to produce such effects.

NRC Cancels Three Classification Guides

The Nuclear Regulatory Commission reported in July that it is “retiring” classification guides on three topical areas as a result of the ongoing Fundamental Classification Guidance Review.

The cancelled classification guides pertain to “national security information concerning nuclear materials and facilities”; “assessing nuclear threat messages”; and “information dealing with the release and dispersion of radioactive material.” To the extent that information on these topics may still require classification, the NRC report said there are other authorities that the Commission can rely on, including joint classification guides with the Department of Energy that remain in effect.

But the retired guides will no longer be available for use in classifying NRC information.

A similar report from the Department of Defense noted that 82 DoD classification guides had been eliminated under the Fundamental Classification Guidance Review as of last July.

The potential efficacy of a broad-based review of agency classification guidance in reducing excessive secrecy was demonstrated in practice by the Department of Energy in the mid-1990s.  (The Department would “classify less, and enjoy it more,” a spokesman told Science Magazine in 1993.)  Building on that example, I presented an argument for a government-wide review of classification guidance in “Reducing Government Secrecy: Finding What Works,” Yale Law & Policy Review, vol. 27, no. 2, spring 2009.

Reducing Overclassification Through Accountability

Reporting on intelligence can be a challenge even for an experienced national security reporter, observed Dana Priest in her book “Top Secret America” (co-authored with William Arkin).

“Having traveled the world with the military, I just didn’t understand why I was failing to progress with [reporting on] the CIA,” she wrote (p. 19).  “Maybe I wasn’t using the right terminology or phrases, or hadn’t found the right people to ask.  But the obvious answer was made clear to me one day when [CIA spokesman William] Harlow finally got tired of the badgering and let me have it, explaining in a very loud voice why, for the umpteenth time, he had no comment to my questions.  ‘This is a goddamn secret organization!  That’s why!’”

The notion that “it’s secret because it’s secret” actually goes a long way towards explaining the often reflexive and indiscriminate practice of national security classification.

It therefore stands to reason, says a new report from the Brennan Center for Justice, that if classifiers were obliged to justify their classification actions with more clarity and precision, they would classify less.  Among other steps, the report recommends that each classification action be accompanied by a concise written explanation.  This would be one way of shifting incentives and burdens in favor of more thoughtful and more limited classification, the authors say.  They sensibly call for a pilot project to test and refine their proposal on a limited scale.  See “Reducing Overclassification Through Accountability” by Elizabeth Goitein and David M. Shapiro, Brennan Center for Justice, October 5.

However, it is not self-evident that this recommendation would have the desired effect.  There are probably very few classifiers who consciously abuse classification authority to withhold information that they know should not be classified.  Nor is it insurmountably difficult for a government official to devise a rationale even for a questionable classification decision, as many FOIA litigators can attest.  If classifiers are required to provide a written justification for their view, no matter how eccentric or ill-considered it may be, they will find a way to do so.

A better approach would seem to be to diminish the effect of individual and agency biases towards secrecy by submitting classification decisions to a broad consensual review.  (Since there are no purely objective standards to guide classification policy, a consensus of independent views may be the best one can hope for.)  A procedure of this sort is supposed to be followed in the ongoing Fundamental Classification Guidance Review, though it is unclear how broad a range of perspectives is actually being brought to bear.

Besides their several proposals for change, the Brennan Center authors present a lucid recapitulation of the case against unfettered secrecy that anyone can read with benefit.  Their report contributes another voice of urgency to the mounting demand for reform of national security secrecy.

The need for secrecy reform was also vividly illustrated by the Obama Administration’s unwillingness to candidly discuss the killing of Anwar al-Awlaki in Yemen last week, or even to present the legal justification for it.  See “A Closed-Mouth Policy Even on Open Secrets” by Scott Shane, New York Times, October 5.

Clearance Lost Due to Anti-Islamic Prejudice, Lawsuit Says

Mahmoud M. Hegab was a well-regarded budget analyst at the National Geospatial-Intelligence Agency (NGA) until last year when his Top Secret/SCI security clearance was abruptly revoked.

Among the issues precipitating his loss of clearance were the fact that his newlywed wife had graduated from an Islamic school, that she had participated in an anti-war protest, and that she had engaged in pro-Palestinian political activity while a student at George Mason University.

This week Mr. Hegab filed a lawsuit against the NGA seeking reinstatement of his clearance.

“The revocation of plaintiff’s security clearance and access to classified information by NGA was based solely on plaintiff’s wife’s religion, Islam, her constitutionally protected speech, and her association with, and employment by, an Islamic faith-based organization,” wrote Sheldon I. Cohen, Mr. Hegab’s attorney.  None of her actions or affiliations posed any national security concern, the lawsuit said.

There is no constitutional right to be granted a security clearance.  However, Mr. Hegab does have “a property interest in his continued employment in the position he previously held at NGA,” wrote Mr. Cohen.  “NGA by its actions has deprived plaintiff of his property interest in his continued employment with the federal government in violations of plaintiff’s right to due process under the First, Fifth and Ninth amendments to the United States Constitution.”

The new complaint presented an extensive account of Mr. Hegab’s experience along with a detailed rebuttal of the allegations against him and his wife.  The NGA’s response to the complaint will be posted in Secrecy News when it is filed in a month or so.

“Muslims have replaced Jews as targets of discrimination” in the security clearance system, according to a report in Moment magazine, a Jewish monthly.  See “Anti-Muslim Discrimination in Post 9/11 America,” April 2011.

Prosecutors Ask Court to Bar Claim That “Everybody Leaks”

Former CIA officer Jeffrey Sterling, who is accused of leaking classified information to reporter James Risen, should not be permitted to argue at trial later this month that he was unfairly singled out for prosecution, government attorneys urged in an October 4 motion.

“The Court should bar the defendant [Sterling] from presenting any evidence, argument or comments of selective prosecution or that everybody leaks classified information,” the prosecution motion said.

Further, the motion said, Sterling should not be allowed to introduce evidence “that everyone at the CIA or on Capitol Hill leaks information” or evidence “regarding specific examples of the leaking of classified information, whether prosecuted or not.”

If such evidence were to be introduced at trial, prosecutors said, then “Fights over the classification levels of the information, the potential damage caused to the United States, and a host of other issues would consume and overwhelm the real issues in this case.”

Among several other categories of defense evidence or argument that prosecutors asked the Court to rule out of order were claims that the alleged leaks were justified or necessary, unsupported defense allegations of an alternative perpetrator of the leaks, and arguments that CIA has conspired to implicate the defendant.

Prosecutors said that case law does not allow the presentation of “arguments that leaks are good or necessary, or that [Sterling] was a whistleblower, thereby justifying his conduct or negating his criminal intent.”

And they said “There is absolutely no evidence that the CIA was out to get the defendant, or that the CIA orchestrated some grand conspiracy to blame the defendant for the leaks to Risen.”

In a separate motion yesterday, prosecutors petitioned the court to admit into evidence several categories of statements.  These included CIA records of phone calls made by James Risen to CIA public affairs, talking points presented by Condoleezza Rice at a White House meeting with Risen and Jill Abramson of the New York Times, and “excited utterances” made by an individual identified as Human Asset No. 1 who believed his identity might have been compromised by publication of information in Mr. Risen’s book.

The trial of Jeffrey Sterling is scheduled to begin on October 17.

The Soldier’s Guide, and Other Army Guidance

“The Soldier’s Guide,” which is something like the U.S. Army equivalent of the Boy Scout Handbook, was updated last month.  The 436 page Guide is filled with instruction and lore about life in the U.S. Army.  It covers Army history, traditions, and professional development.

In places the text limps.  Thus, “The Army’s core values are loyalty, duty, respect, selfless service, honor, integrity and personal courage. They form the acronym LDRSHIP.”  In other places, it is moving and profound.  The Guide explains that when you are in the Army, your first duty is not to the Army, but to the U.S. Constitution.  “Put [your] obligations in correct order: the Constitution, the Army, the unit, and finally, self.”  See “The Soldier’s Guide,” Field Manual, 7-21.13, February 2004, with Change 1, September 20, 2011.

“Law and Order Operations” is the topic of another recently updated Army manual.  In the past, this term referred primarily to law enforcement activities at military facilities.  But its scope has now expanded.  “The applications of L&O [law and order] operations and the requirements for Army LE [law enforcement] personnel to conduct these operations have grown tremendously as nation building and protracted stability operations have demonstrated the need for civil security and civil control as critical lines of effort within the larger effort to transfer authority to a secure and stable HN [host nation] government.” See “Law and Order Operations,” ATTP 3-39.10, June 20, 2011.

This week the Army published an updated regulation on “Military Justice.”  The 176-page regulation presents rules and procedures for administering justice in the military.  It addresses a variety of particular offenses, including “subversion, treason, domestic terrorism, and known or suspected unauthorized disclosure of classified information or material.”  See “Military Justice,” Army Regulation 27-10, October 3, 2011.

Fundamental Review Yields Reduction in Scope of Secrecy

The Department of Defense this year cancelled 82 security classification guides as a result of the ongoing Fundamental Classification Guidance Review, a focused effort to combat overclassification of national security information.  The cancelled guides can no longer be used to authorize classification of DoD information.

The Fundamental Classification Guidance Review, which must be performed by all classifying agencies under President Obama’s executive order 13526 (sect. 1.9), is intended to ensure that classification guidance reflects current circumstances, and is supposed to eliminate obsolete or unnecessary classification requirements.  Remarkably, it seems to be having a measurable effect.

The cancellation of the 82 DoD classification guides, which are compilations of detailed instructions used for classifying information on various topics, will not make a huge dent in Pentagon secrecy.  The defunct guides amount to only a little more than 4% of the total number of DoD classification guides (of which there are 1,878 extant).  But their withdrawal appears to represent a real, non-rhetorical reduction in the permissible scope of national security secrecy.

In fact, the 82 cancelled guides (which are mostly from the Navy) constitute more than 10% of the 648 DoD classification guides that had been reviewed as of last July.  So by the time that a review of all of the guides is completed, which must be done by June 2012, there is reason to expect the elimination of dozens of additional DoD classification guides.

These data were reported by the Department of Defense in a July 29, 2011 Interim Status Report on the Fundamental Classification Guidance Review (FCGR) that was obtained by Secrecy News under the Freedom of Information Act.

The DoD Interim Report sought to downplay expectations about the final outcome of the Review.  DoD said that most of its classification guides had already been reviewed during the past three years “and declared accurate… by the responsible Original Classification Authority.”  Consequently, the Report said, “within the ongoing FCGR, we have seen few changes or developments impacting actual topics meriting classification.”

But this worrisome remark suggests that there has been a misunderstanding of the Review process by some Pentagon officials.  The question posed by the Fundamental Review is not whether the original classifier believes that a prior classification decision is still valid;  if he or she does not, the information should no longer be classified by any account.

Rather, the Review is supposed to reflect a judgment by subject matter experts other than the original classifier (involving “the broadest possible range of perspectives,” as the ISOO implementing directive says) that the classification action makes continued sense — which is a higher, more demanding standard to meet.  It is not clear from the Interim Report whether DoD is incorporating the views of internal or external subject matter experts in its Review.

“It is essential that we fulfill this [Fundamental Review] requirement in a way that shows responsible stewardship of our resources,” wrote Under Secretary of Defense Michael G. Vickers in a May 19 tasking memo.  “We cannot afford to expend resources on protecting information that no longer meets the criteria for classification.”

In a related development of potentially great significance, the DoD Interim Report mentions in passing that “The DoD Inspector General is evaluating the nomination of the [Fundamental Review] to be identified as an IG Special Interest Item (SII).”  Any such involvement by the Inspector General could bring valuable depth and perspective to the Fundamental Review, and add to its effectiveness in stripping away unwarranted secrecy.

Meanwhile, the Office of the Director of National Intelligence reported that it had initiated a Fundamental Review of 8 of its 22 security classification guides so far, and that 1 of them had been eliminated “because the program it supported was terminated.”  The ODNI Interim Report, by Information Management Director John F. Hackett, also described various ODNI classification management initiatives to ensure compliance with the executive order.

The FCGR “is not intended to be a superficial review but a thoughtful, methodical process using the experience and knowledge of a variety of subject matter experts,” wrote Stephanie L. O’Sullivan, Principal Deputy Director of National Intelligence, in a May 26 memo to intelligence agencies.