Posts from May, 2012

Congress Will Allow Energy Dept to Reclassify Nuke Info

Congress is poised to amend the Atomic Energy Act to allow certain nuclear weapons-related information that is classified as Formerly Restricted Data (FRD) to be restored to the Restricted Data (RD) category.

FRD and RD are both classified under the Atomic Energy Act, but FRD generally pertains to the utilization of nuclear weapons, whereas RD mostly deals with nuclear weapons design information.

Last year, Secretary of Energy Steven Chu wrote to Congress to propose legislation that would permit moving FRD back into the RD category, something that is currently not permitted by the Atomic Energy Act, in order to provide improved security.  (Dept of Energy Wants to Reclassify Some Info as ‘Restricted Data’, Secrecy News, January 17, 2012.)

“There is sensitive nuclear weapons design information embodied in some FRD… that should be subject to the more stringent security protections afforded RD,” Secretary Chu wrote.

The requested legislative language was approved by the House in its version of the FY2013 National Defense Authorization Act (HR 4310, section 3153), and was also incorporated in the Senate Armed Services Committee markup of the bill (S. 2467, the full text of which is not yet available).

The legislation would also permit information about foreign atomic energy programs known as Transclassified Foreign Nuclear Information (TFNI) to be transferred to the RD category, with the consent of the Director of National Intelligence.

The immediate public impact of the policy change would be negligible, since both FRD and RD are classified and in practice are equally inaccessible to the public.

But in the longer term, the move could have positive implications.  It would facilitate the elimination of the cumbersome and superfluous Formerly Restricted Data (FRD) category, a move that has been favored by critics for years. Doing so would both streamline the unworkably complicated classification apparatus and help to expedite the declassification process.

The entire FRD category could in principle be depopulated if the most sensitive information were restored to RD, as Congress will soon permit; if the least sensitive information (e.g. information about historical nuclear depot sites that no longer exist) were declassified; and if the rest were “transclassified” to national security information, i.e. the “regular” (non-Atomic Energy Act) classification system.

Eliminating FRD would in turn reduce one of the most vexing barriers to declassification of historical government records, which by law must be surveyed for the presence of FRD (and RD) before they can be publicly released.

However, the removal of information from the FRD category (either to declassify or transclassify it) requires the consent of both the Department of Energy and the Department of Defense.  To gain the cooperation of both agencies, it is likely that White House leadership would be needed.

Congress’s Contempt Power, and More from CRS

Newly updated reports from the Congressional Research Service include the following.

Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, May 8, 2012

The Financial Action Task Force: An Overview, May 9, 2012

Reauthorization of the Export-Import Bank: Issues and Policy Options for Congress, May 7, 2012

The National Nanotechnology Initiative: Overview, Reauthorization, and Appropriations Issues, May 22, 2012

U.S.-EU Cooperation Against Terrorism, May 21, 2012

Declassification of the Historical Backlog – A Correction

Secrecy News stated yesterday that the decline in the number of pages reviewed for declassification last year (as reported by the Information Security Oversight Office) means that the goal set by President Obama of reviewing the entire backlog of 25 year old historical records by December 2013 will not be achieved.

But that is not correct, an Archives official said.  Progress in reducing the backlog is independent of progress in conducting declassification review since only a fraction of the hundreds of millions of pages of backlogged records require formal declassification “review.”  (In theory, at least, most of them have already been “reviewed,” and reported as such in previous ISOO reports).

Instead of being “reviewed” for declassification, the official said, the backlogged records are being “assessed” for the presence of exempted information (such as RD or FRD), in which case they will not be released.  The records are also undergoing “declassification processing” for public access.  But not “declassification review.” Only in a minority of cases are backlogged records being referred for “declassification review.”

We regret adding confusion to an already confusing situation.

In contrast to our somber view of the contents of the new ISOO annual report, the National Archives issued a rather upbeat press release on the report.

But the Archives press release does not mention that total declassification activity declined in 2011 from the year before, which seems like a significant omission.

As to whether the President’s December 2013 deadline for elimination of the backlog of historical records will be met, with or without “review,” it is hard to be optimistic.

The National Declassification Center stated in its last semi-annual report that the diversion of resources necessary to screen for Restricted Data and Formerly Restricted Data in the backlogged records “will certainly impact our ability to complete all declassification processing by the deadline.”

But it would be a mistake to anticipate failure, the Archives official said, adding “It’s not over until it’s over.”

Instead of Ramping Up, Declassification Activity Slowed in 2011

The total number of pages of government records that were reviewed for declassification last year, as well as the number that were actually declassified, declined slightly from the year before, according to the 2011 annual report from the Information Security Oversight Office (ISOO) that was published today.

Not only is this trend line unfavorable in itself, it also means that the goal set by President Obama of reviewing the entire backlog of 25 year old historical records awaiting declassification by December 2013 is out of reach and will not be achieved. [Update: This is not quite correct, since most of the backlog that needs to be processed for release does not require "review." Only a subset of the backlog is being referred to agencies for review.]

The latest ISOO annual report, like its predecessors, is a sometimes bewildering of collection of raw statistics about government classification and declassification activity, some of which have little or no meaning or are actually misleading.

So, for example, ISOO reports that there were precisely 127,072 original classification decisions to create new secrets throughout the government in 2011.  But upon close inspection this combined total of all agency classification actions conveys no meaningful information since the individual agencies exercise their classification authority in different and incommensurate ways.  Thus, CIA and ODNI each generated only four original classification decisions — 0.003% of the total — though they are among the most secrecy-intensive agencies in government.  Meanwhile, the much less secretive Department of State supposedly accounted for 48,968 original classification decisions last year, or 38% of all new secrets.  These figures are simply not an accurate representation of executive branch classification activity as it exists in practice, and adding them together does not improve their quality.

The ISOO report also indicates that derivative classification activity — that is, the restatement in new form of information that was previously classified — increased sharply by 20% over the previous year.  But the report warns that the new data reflects revised reporting requirements, so that it cannot be properly compared to previous years’ numbers.  In other words, it has no particular significance or utility.

To its credit, ISOO seems cognizant that the current reporting format is not very useful or informative.  The report states that ISOO “has begun to re-evaluate the elements of information that the executive branch agencies are asked to provide for this annual report” and that the “re-evaluation covers most aspects of the reporting process.”

Still, some of the data presented by ISOO are striking, though their actual meaning needs to be teased out by the reader.

So, for example, a total of 52,760,524 pages were reviewed for declassification in 2011, and 26,720,121 of those pages were declassified.  These are not trivial numbers, but they are a reduction from the 2010 total of 53,087,345 pages reviewed and 29,050,290 pages declassified.  More significantly, the reported level of activity means that the President’s 2009 goal of reviewing 400 million pages of classified records of historical importance by December 2013 cannot and will not be achieved.  Instead of ramping up to meet the presidentially-mandated requirement — to review an average of 100 million pages per year for four years — declassification activity last year actually leveled off and declined. Curiously, the new ISOO report to the President made no mention of this disappointing fact. [Update 2: As noted above, this is not correct, since most of the 400 million pages awaiting processing for public release do not require additional declassification review. Even so, the December 2013 deadline is not likely to be met.]

The ISOO report does make the important observation that, as in past years, the majority of agency classification determinations that were appealed by requesters to the Interagency Security Classification Appeals Panel were overturned by the Panel in whole or in part, resulting in the declassification and release of records that agencies had wanted to withhold as classified.

Because this pattern has persisted for 15 years (since the Panel was established), it represents empirical proof that overclassification has been and still remains pervasive, even by internal executive branch standards.  In fact, there are indications that the Panel itself is too conservative in its handling of classification disputes.  Recently, even the hyper-retentive National Security Agency decided to fully release a document despite a Panel finding that it should remain partly classified.

The radical implications of ISCAP’s unbroken record of overturning a majority of the agency classification positions it reviews — which suggest that agencies are consistently misclassifying and failing to properly declassify information — are not examined in the ISOO report.

However, ISOO Director John P. Fitzpatrick noted in his transmittal letter to the President that an initiative known as the Fundamental Classification Guidance Review holds promise for improving the integrity of classification practice.  The Review, which is now drawing to a conclusion, is an effort to update agency classification guidance and to identify currently classified information that no longer should be classified.  “We believe that significant results will be obtained from this program,” Mr. Fitzpatrick wrote.

Move to Declassify FISA Court Rulings Yields No Results

An initiative that was started two years ago to declassify significant rulings of the Foreign Intelligence Surveillance Court regarding domestic intelligence surveillance has produced no declassified records, a Justice Department official confirmed last week.

In response to complaints about the rise of “secret law,” the Justice Department and the Office of the Director of National Intelligence established a new process in 2010 to declassify opinions of the FISA Courts (including the Foreign Intelligence Surveillance Court as well as the FIS Court of Review) that contained “important rulings of law.”

Prior to her confirmation hearing in May 2011, DoJ National Security Division (NSD) director Lisa Monaco told the Senate Intelligence Committee that “all of the opinions and orders… issued by the FISA Courts that include significant constructions or interpretations of FISA” would be reviewed for declassification.

“If confirmed,” she told the Senate Committee, “I will work to ensure that the Department continues to work with the ODNI to make this important body of law as accessible as possible, consistent with national security, and in a manner that protects intelligence sources and methods, and other properly classified and sensitive information.”  See her response to question 9 in these pre-confirmation hearing questions.

But despite these assurances, and two years after that declassification review process began, nothing has been declassified.  A Freedom of Information Act request for the newly declassified FISA Court opinions turned up no records.  A Senate Intelligence Committee official said the Committee was still awaiting the declassified release as well.  (Classified versions of “significant” opinions are already provided to the intelligence committees, DoJ says.)

Dean Boyd of the DOJ National Security Division confirmed that the current review process had produced no new declassified opinions since 2010.  He said that there were several factors that complicated the declassification of the FISA Court opinions.  According to Mr. Boyd:

  •     The documents at issue do not belong exclusively to the Justice Department, or indeed to the Executive Branch.  These legal opinions are judicial documents subject to the jurisdiction of the courts that issue them.
  •     These documents are classified because they meet the criteria for classification set forth in Executive Order 12958 [should be: 13526] and are subject to the statutory responsibility of the Director of National Intelligence (DNI) to protect sources and methods.
  •     Further, any contemplated public disclosure of such FISA Court opinions  must take account of legitimate concerns that public availability of FISA Court opinions, even in redacted form, may enable a sophisticated adversary to deduce particular sources and methods or take effective countermeasures that deprive the United States of intelligence.

There have been three cases in the past when FISA Court opinions were made public, including a FISC opinion dated May 17, 2002, a FISCR opinion dated November 18, 2002, and a FISCR opinion dated August 22, 2008.

But Mr. Boyd told Secrecy News that “All three of these opinions represented comparatively rare instances in which a FISA Court produced substantial legal opinions that could be severed from the sensitive facts of the underlying applications.”  So those prior releases are not necessarily precedents for any future releases, in the Department’s view.

Still, the current declassification review process continues, Mr. Boyd said.  But it is unclear how the factors that have prevented declassification for the last two years would change to permit disclosure in the foreseeable future.

Former Secrecy Czar Asks Court to Release NSA Document

The former director of the Information Security Oversight Office (ISOO) asked a federal court yesterday for permission to disclose a National Security Agency document that he said represented an egregious example of overclassification.

J. William Leonard was the ISOO director, or what is sometimes called the “classification czar,” from 2002-2008.  In that role, he was responsible to the President of the United States for oversight of classification policy and enforcement of classification standards throughout the executive branch.

In 2010, Mr. Leonard became an expert consultant for the defense of Thomas A. Drake, the former NSA official who was charged with ten felony counts alleging unlawful retention of classified information.  But the government’s case collapsed and all of the felony counts against Mr. Drake were dismissed last year.  In Count One of the indictment against Mr. Drake, he was charged with unauthorized retention of a classified NSA email message entitled “What A Success,” and it is that document which Mr. Leonard is now seeking to make public.

“Mr. Leonard seeks the Court’s permission to publicly discuss the ‘What a Success’ document and the government’s rationale for classifying the document, which, in his opinion, contained absolutely no classified information,” wrote James Wyda and Deborah L. Boardman, Mr. Drake’s public defenders, in their May 22 motion to the Maryland district court.

“It is Mr. Leonard’s firm belief that an open discussion about the government’s actions in this important case is essential to protect the integrity of the Executive Branch’s national security information classification system,” they wrote.

“I strongly believe that classification is a critical national security tool and that the responsibilities of cleared individuals to properly protect classified information are profound,” Mr. Leonard said in an affidavit appended to the motion.

But “when deciding to apply the controls of the classification system to information, government officials are in turn obligated to follow the standards set forth by the President in the governing executive order and not exceed its prohibitions and limitations. Failure to do so undermines the very integrity of the classification system and can be just as harmful, if not more so, than unauthorized disclosures of appropriately classified information,” he wrote.

“It is for that reason that the President’s Executive order governing classification treats unauthorized disclosures of classified information and inappropriate classification of information as equal violations subjecting perpetrators to comparable sanctions, to include ‘reprimand, suspension without pay, removal, termination of classification authority, loss or denial of access to classified information, or other sanctions in accordance with applicable law and agency regulation’.”

But the equal weight given to the prohibitions against unauthorized disclosure and inappropriate classification is not reflected in actual practice, Mr. Leonard said.

“While government workers, members of the military and government contractors are routinely disciplined or prosecuted for unauthorized disclosures, I know of no case in which an official was sanctioned for inappropriately classifying information.”

That needs to change, according to Mr. Leonard, and the NSA’s wrongful classification of the “What A Success” document provides an opportunity to rectify the situation, he said.

“I believe the Government’s actions in the Drake case served to undermine the integrity of the classification system and as such, have placed information that genuinely requires protection in the interest of national security at increased risk,” he wrote.

In July 2011, Mr. Leonard filed a formal complaint about the NSA document with the current ISOO Director, John P. Fitzpatrick, in which he urged that the officials responsible for its classification be subjected to appropriate sanctions.  See “Complaint Seeks Punishment for Classification of Documents” by Scott Shane, New York Times, August 1, 2011.

But the issue has still not been resolved through that approach, Mr. Leonard noted.

Mr. Fitzpatrick told Secrecy News that “I am awaiting final responses from NSA and DoJ to inquiries I made of them on the Leonard complaint.  I anticipate their responses very soon and then expect to draw that matter to conclusion.”

Mr. Drake’s attorneys indicated that the government did not consent to their motion for disclosure of the “What A Success” document, which has been declassified, and of Mr. Leonard’s ISOO complaint, which remains under seal.  So it will be up to the Court to decide whether those materials may be released.

Restrictions on WikiLeaks Documents Challenged in Court

The publication of leaked classified documents by WikiLeaks continues to confound government officials and to generate some unusual legal tangles.  Last month, attorneys for a Guantanamo prisoner asked a federal court to nullify the restrictions that the government has imposed on access to and dissemination of the leaked records, so that the prisoner can prepare a response to the disclosures contained in them.

Hundreds of files pertaining to prisoners at Guantanamo have been posted online by WikiLeaks.  In a December 2010 notice, the government advised the security-cleared attorneys who were representing detainees in their habeas corpus petitions that the WikiLeaks materials retained their classification status, despite the fact that they had been globally distributed, and that they must be treated like any other classified document.  In June 2011, the government modified its position to authorize attorneys to view the WikiLeaks documents on a non-government computer, but not to download, save, print, disseminate or transport them.

The government policy on this matter is unworkable and incoherent, argued attorneys for detainee Abdulhadi Omer Mahmoud Faraj in an April 18 motion in DC district court.  Worse, they said, it is damaging and unfair to their client.

“WikiLeaks has made available to the world Mr. Faraj’s Detainee Assessment Brief (DAB) [which] is based in significant part on unreliable claims made by individuals under conditions that amount to coercion, if not torture.”  But due to the government’s restrictions, “Mr. Faraj cannot review with his attorneys any of the pertinent documents published by WikiLeaks nor can he meaningfully consult with his attorneys to develop a response to the one-sided and negative narrative that the materials reflect,” the motion stated.

Attorneys argued that the portrayal of Mr. Faraj in the leaked Brief, which presents him as a violent Islamist extremist, places him and his family in jeopardy.

“The relief Mr. Faraj seeks here is necessary to protect his family in Syria, to the extent possible, and to preserve his prospects for resettlement or repatriation without risk of torture should he be finally set free by the Court or the government…. The false allegations in the leaked DAB, especially if left unrebutted, jeopardize Mr. Faraj’s safety upon repatriation and that of his family.”

“Because the DAB from WikiLeaks is among the top-recalled items when using a search engine such as Google to find news of Mr. Faraj, it is especially important for the Court to grant the relief sought herein so counsel and Petitioner can develop a public response to the DAB allegations,” the motion stated.

The motion presents several cogent criticisms of the government’s restrictions on use of the WikiLeaks documents.  For example, Mr. Faraj’s attorneys wrote, it makes no sense to permit “viewing” a document while prohibiting “downloading” it.

“When the security-cleared attorney views a WikiLeaks document on her personal computer, that page is stored in the computer’s memory despite the attorney’s lack of intent to download the document,” the motion noted.

Likewise, though the government “purports to prohibit transportation of WikiLeaks materials, it permits counsel to view these materials on their personal computers, leaving open the question whether counsel may access these materials on a personal laptop computer or tablet device, which by their nature are transportable.”

In a particularly interesting line of argument, the motion disputed the government’s legal right to regulate the attorneys’ access to the WikiLeaks documents in the first place, because they said the nondisclosure agreements signed by the attorneys and the protective order issued by the court apply only to information that was provided by the government.

Those agreements “refer not to all classified information in existence, but rather to the specific classified information the government releases to security-cleared attorneys in connection with habeas litigation.”  Since the WikiLeaks documents were obtained independently, they are beyond the purview of the nondisclosure agreement, the motion said.

The Faraj attorneys expressly acknowledged that they are not allowed to comment on classified information in the public domain in a way that reflects or is derived from their authorized access to non-public sources.  But “in all other regards, when the information is publicly available and neither accessed pursuant to the Nondisclosure Agreement nor the Protective Order, Mr. Faraj’s security-cleared attorneys must be treated no differently from the general public with respect to that information,” they wrote.

“Since Mr. Faraj’s security-cleared habeas counsel did not illegally disclose or come into possession of this information, but rather merely seeks to make use of it in its already-public form, they are no different from the public at large and the government may not restrict their use of WikiLeaks materials,” the motion concluded.

On May 18, government attorneys filed a response in opposition to the the Faraj motion, but that response was classified.

A reply from the petitioners is due July 16.

Another dispute over the use of WikiLeaks documents in habeas proceedings arose last year in the Paracha case, but that dispute was resolved or superseded without a court ruling.  See “Govt Opposes Attorneys’ Free Use of WikiLeaks Documents,” Secrecy News, June 16, 2011.

The Chicken and the Egg, and More from CRS

New and updated reports from the Congressional Research Service that Congress has not made available to the public include the following.

Table Egg Production and Hen Welfare: The UEP-HSUS Agreement and H.R. 3798, May 14, 2012

Intelligence Authorization Legislation: Status and Challenges, May 21, 2012

Central Asia: Regional Developments and Implications for U.S. Interests, May 18, 2012

U.S.-Vietnam Relations in 2011: Current Issues and Implications for U.S. Policy, May 18, 2012

The U.S. Export Control System and the President’s Reform Initiative, May 18, 2012

Army Updates Oversight of “Sensitive Activities”

In a directive issued last week, Secretary of the Army John M. McHugh established a new Army Special Programs Directorate (ASPD) to administer and oversee special access programs and other “sensitive activities” conducted by the Army.

“I expect all Army commands, organizations and personnel to be proactive in affording the ASPD and the other members of my sensitive activities oversight team… unfettered and continuing access to any and all information and operational data they deem necessary to accomplish their oversight missions and functions,” Secretary McHugh wrote in the May 14 Army directive 2012-10.

The new Directorate is the successor organization to the former Technology Management Office, which performed many of the same functions.

The definition of “sensitive activities” in Army Regulation 380-381 includes:  “programs that restrict personnel access [...]; sensitive support to other Federal agencies; clandestine or covert operational or intelligence activities; sensitive research, development, acquisition, or contracting activities; special activities; and other activities excluded from normal staff review and oversight because of restrictions on access to information.”

The Army regulation indicates that special access programs (SAPs), which are a subset of sensitive activities, may be used to restrict access to “a specific technology with potential for weaponization that gives the United States a significant technical lead or tactical advantage over potential adversaries”;  “extremely sensitive activities conducted in support of national foreign policy objectives abroad, which are planned and executed so that the role of the U.S. Government is not apparent or acknowledged publicly”; “methods used to acquire foreign technology or equipment”; among other potential categories.

“SAPs are not programs or activities planned and executed with the intent to influence U.S. political processes, public opinion, policies, or media,” the 2004 Army regulation states.

Secretary McHugh stressed that he retained authority and responsibility for the Army’s special programs.

“I reserve the authority to review and take action on matters relating to our Army’s conduct of, or support of, the most sensitive or unusual activities,” he wrote to Army commanders and senior officials in his directive last week.  “I expect you to exercise your judgment as to those activities that should be forwarded for my approval even when you typically exercise approval authority for sensitive, but otherwise routine activities.”

House Votes to Require Leak Investigation on Israel-Iran Info

The House of Representatives last week adopted an amendment to require the Attorney General to conduct a criminal investigation into “leaks of sensitive information involving the military, intelligence, and operational capabilities of the United States and Israel.”

Rep. Tom Price (R-GA), who sponsored the amendment to the FY2013 defense authorization act, cited stories based on leaks concerning a potential Israeli attack on Iranian nuclear facilities that were published in the New York Times, the Washington Post, and Foreign Policy.

“Our amendment calls for the Attorney General to investigate these leaks and bring those responsible to justice,” Rep. Price said. “Trust and cooperation are vital to securing a strong alliance and a future of peace.”

No one spoke in opposition to the amendment, which was approved May 18 by a vote of 379-38.