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Bernice Moore
03-21-2011, 04:16 PM
Secrecy News Blog: http://www.fas.org/blog/secrecy/


** COURT SEALS UNCLASSIFIED DOCS IN DRAKE "LEAK" CASE
** COMMENTS INVITED ON "TRANSFORMING CLASSIFICATION"
** IS THE SECRECY SYSTEM AN AUTONOMOUS ENTITY?


COURT SEALS UNCLASSIFIED DOCS IN DRAKE "LEAK" CASE

Prosecutors in the case of the former National Security Agency official Thomas A. Drake, who is suspected of leaking classified information to a reporter, last week asked the court to block public access to two letters that were introduced as exhibits by the defense earlier this month. Late Friday, the court agreed to seal the two exhibits in the court docket. But they remain publicly accessible anyway.

The exhibits (http://www.fas.org/sgp/jud/drake/031111-defresponse71exh.pdf) (pdf) describe the classification status of several NSA records that were found in the home of Mr. Drake, explaining why the prosecution considers each of the records classified. The defense disputes their classification and denies that Mr. Drake ever retained any classified records at his home.

Mr. Drake's defense said (http://www.fas.org/sgp/jud/drake/031111-defresponse71.pdf) (pdf) that it intends to introduce testimony at trial "which will include a discussion of the appropriate assignment of classification controls under the Executive Order and the consequences and pervasiveness of inappropriately assigning classification controls." To document the classification judgments that it disputes, the defense also filed two letters from the Justice Department as exhibits (http://www.fas.org/sgp/jud/drake/031111-defresponse71exh.pdf) on March 11.

On March 16, prosecutors asked the court (http://www.fas.org/sgp/jud/drake/031611-motion-seal.pdf) (pdf) to seal those two records. "As grounds [for sealing the records], the information contained within the exhibits derives from NSA. As the holder of the privilege for this information, NSA has classified the documents as 'FOUO', which means 'For Official Use Only.' This means that the information is not for public dissemination. Until such time as NSA downgrades the information to 'Unclassified,' the exhibits should not be publicly filed," prosecutors wrote.

Ironically, this prosecution argument illustrates the confusion about classification policy that prevails at NSA, in the Justice Department and in much of the government.

The NSA could not have "classified" the records as FOUO and cannot "downgrade" them to "unclassified" because they are already unclassified. "Information cannot be classified and FOUO at the same time," according to the governing DoD regulation 5200.1-R (http://www.dtic.mil/whs/directives/corres/pdf/520001r.pdf). "By definition, information must be unclassified in order to be designated FOUO."

Without waiting for a response from the defense or from other interested parties, Judge Richard D. Bennett of the Maryland District Court granted the prosecution motion and sealed the records. His March 18 decision on the matter, which was first reported (http://www.politico.com/blogs/joshgerstein/0311/Judge_seals_official_use_only_filing_in_NSA_leak_c ase.html) by Josh Gerstein of Politico, was also sealed. The newly-sealed records remain available, however, on the Federation of American Scientists web site here (http://www.fas.org/sgp/jud/drake/031111-defresponse71exh.pdf).


COMMENTS INVITED ON "TRANSFORMING CLASSIFICATION"

The Public Interest Declassification Board (http://www.archives.gov/pidb/), an advisory committee appointed by the President and Congressional leaders, is developing recommendations on how to transform the national security classification system. It has invited interested members of the public to comment on its emerging recommendations (http://blogs.archives.gov/transformingclassification/) over the next several weeks on a new blog here (http://blogs.archives.gov/transformingclassification/).

The Board itself has no power to effect any transformation; it is purely advisory. However, it has also been fairly influential. Its advocacy of a National Declassification Center (first proposed by the Moynihan Commission in 1997) probably helped bring that concept to fruition. In any case, even if the Board has little direct leverage of its own, "we do have access" to senior policy makers, said Board Chair Martin Faga, a former National Reconnaissance Office director, last week.

The initial recommendations of the Board stop well short of anything that we would call transformation. Most fundamentally, the Board does not propose any reductions in the scope of what is classified. It also does not inquire whether today's hierarchical classification system is appropriate to a networked world, much less what could be devised to replace it.

But the very fact of a public conversation (http://blogs.archives.gov/transformingclassification/) on the purpose and character of national security secrecy may have transformative implications. So interested persons are encouraged to participate.

Board member Sanford J. Ungar wrote about "Unnecessary Secrets" (http://www.cjr.org/feature/unnecessary_secrets.php) in the March/April 2011 issue of Columbia Journalism Review.


IS THE SECRECY SYSTEM AN AUTONOMOUS ENTITY?

Does the secrecy system function according to its own autonomous principles? Is it beyond the rule of law and outside of presidential control?

Not exactly. If that were true, then there would never be involuntary changes to classification policy and there would be no compulsory declassification of classified information. Fortunately, that is not consistently the case.

And yet there is a disturbing pattern of evidence to show that the secrecy system resists external control, and that it will not reliably fulfill even the most explicit presidential commands or the clearest requirements of law. For example:

* On December 29, 2009 President Obama ordered (http://www.fas.org/sgp/obama/wh122909.html) all agencies that classify information to issue final implementing regulations for his new executive order on classification policy by the end of December 2010. The Department of Defense, the largest classifying agency, did not comply. It did not request a waiver or an extension, it simply did not comply. As a result, the most important classification reforms advanced by the President have not taken hold at the Department of Defense. ("Secrecy Reform Stymied by the Pentagon," (http://www.fas.org/blog/secrecy/2011/02/reform_stymied.html) Secrecy News, February 24, 2011).

* Presidents Clinton (http://www.fas.org/sgp/clinton/eo12958.html), Bush (http://www.fas.org/sgp/bush/eoamend.html) and Obama (http://www.fas.org/irp/offdocs/eo/eo-13526.htm) each ordered that all 25 year old classified records, unless they were specifically exempted, "shall be automatically declassified whether or not the records have been reviewed." But agencies have refused to implement this provision or to permit automatic declassification without review, thereby crippling the presidential initiative for streamlining the declassification process. (Under the 1999 Kyl-Lott Amendment (http://www.fas.org/sgp/congress/hr3616am.html), Congress also complicated this provision by prohibiting public release of declassified records without a separate review for nuclear weapons-related information.)

* The Secretary of State is in standing violation of the Foreign Relations Act of 1991 (http://www.fas.org/sgp/advisory/state/pl102138.html), which requires her to ensure the publication of a "thorough, accurate, and reliable" documentary record of U.S. foreign policy "not more than 30 years after the events recorded." But that is not happening. And things are getting worse, not better. As a result of the non-compliance by several agencies with timely declassification requirements, there "appears to be a growing distance between the statutory obligation to reach a 30-year line... and the actual length of time it has been taking to compile, review, revise, declassify, and publish those volumes," according to the most recent report to the Secretary (http://www.fas.org/sgp/advisory/state/hac2009.pdf) (pdf) from the State Department Historical Advisory Committee.

The failure of law and policy to gain purchase on classification practice is alarming on several levels. Among other things, it means that would-be reformers cannot be satisfied with the "mere" passage of a new law or the adoption of a new executive order, since the practical effect of these steps may turn out to be illusory. And it casts a different, more positive light on the role of unauthorized disclosures, which in some cases can compensate for the inability or refusal of government agencies to implement binding declassification and disclosure requirements.

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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/