Reducing Government Secrecy: Finding What Works

Although people have been complaining about abuse of the national security classification system for decades, such complaints have rarely been translated into real policy changes.

More than half a century ago, a Defense Department advisory committee warned that “Overclassification has reached serious proportions.”  But despite innumerable attempts at corrective action over the years by official commissions, legislators, public interest groups and others, similar or identical complaints echo today.  What is even more interesting and instructive, however, is that a few of those attempts did not fail.  Instead, they led to specific, identifiable reductions in official secrecy, at least on a limited scale.

For example, the Interagency Security Classification Appeals Panel (ISCAP) that was created in 1995 has consistently overturned the classification of information in the majority of documents presented for its review.  And the Fundamental Classification Policy Review that was performed by the Department of Energy in 1995 eliminated dozens of obsolete classification categories following a detailed review of agency classification guides.  These and just a few other exceptional efforts demonstrate that even deeply entrenched secrecy practices can be overcome under certain conditions.

In an effort to identify some of those conditions, I wrote a paper entitled “Reducing Government Secrecy: Finding What Works” (pdf). It has just been published in the Yale Law and Policy Review, volume 27, no. 2, Spring 2009.

Among other things, the experience of the ISCAP underscores the importance of extending declassification authority beyond the agency that imposed the classification in the first place.  It would be useless to restore “the presumption against classification” in cases of “significant doubt,” as President Obama suggested on May 29, if that presumption applied only when such doubt arose in the mind of the classifier.  But if classification were to be overruled by doubt in the minds of other persons — ISOO overseers, Inspector General auditors, judges in FOIA proceedings, and others — significant changes would be enabled.

However, systemic classification reform simply will not happen without careful independent review of agency classification guides, which specify exactly what information is to be classified.  The DoE Fundamental Classification Policy Review proves that such a review, including public participation and input, is both possible and highly effective. It needs to be replicated at other classifying agencies.

The White House has announced an online process for receiving public comments and recommendations for changes to classification and declassification policies.  Discussion of declassification policy begins today here.

House Report on Intelligence Authorization 2010

The House Intelligence Committee last week filed its report on the FY 2010 intelligence authorization act, including many interesting and potentially important intelligence policy provisions.

Perhaps the most significant measure is the proposed creation of a statutory inspector general for the intelligence community.  Other steps include a requirement to report on the number of Federal Government employees who hold security clearances (remarkably, a number that is not readily available today, even within the government); cautious endorsement of a limited role for the Government Accountability Office in intelligence oversight (a move favored by FAS [pdf]); expanded review and notification requirements concerning covert action; a proposed study on the possibility of revoking the pensions of persons who commit unauthorized disclosures of classified information; and quite a bit more.

See “Intelligence Authorization Act for Fiscal Year 2010,” House Permanent Select Committee on Intelligence, H.Rept. 111-186, June 26, 2009.

Other Resources

Bill Leonard, the esteemed former director of the Information Security Oversight Office and the principal overseer of the government secrecy system, now has his own blog where readers may look for his views and his insights on secrecy policy as the process of classification reform gets underway in earnest.

The House Judiciary Committee rebuffed a Republican proposal for a “resolution of inquiry” to require the Administration to produce documents concerning the use of Miranda warnings given to detainees captured in Afghanistan.  The Committee’s adverse report, dated June 26, is available here.

The Defense Department has issued a newly updated policy statement (pdf) on reporting “questionable” intelligence activities.  “It is DoD policy that senior leaders and policymakers within the Government be made aware of events that may erode the public trust in the conduct of DoD intelligence operations,” the June 17, 2009 memorandum states.  Some such questionable activities are to be reported to the Intelligence Oversight Board, a component of the President’s Intelligence Advisory Board. However, the efficacy of any such reporting is limited by the fact that that Board currently has no sitting members. (“White House Intel Advisory Board Has No Members,” Secrecy News, June 15, 2009).

Judge Sotomayor: A CRS Analysis of Selected Opinions

More than anything else, Judge Sonia Sotomayor is a judicial conservative who has hewed closely to established precedent, according to a new analysis by the Congressional Research Service of appellate court decisions authored by President Obama’s nominee to the Supreme Court.

“Perhaps the most consistent characteristic of Judge Sotomayor’s approach as an appellate judge has been an adherence to the doctrine of stare decisis, i.e., the upholding of past judicial precedents,” the 59-page CRS report (pdf) stated.

In several important areas, however, the Judge’s conception of the law remains opaque.  For example, “An examination of Judge Sotomayor’s opinions provides little guidance as to her judicial philosophy regarding executive authority in the realm of national security,” the report said.

Judge Sotomayor authored two opinions involving the Freedom of Information Act.  But “because the opinions are few and relied on relevant Supreme Court precedent, it is difficult to draw conclusions from them regarding her overall approach to FOIA or to related matters such as individual privacy or transparency in government,” the CRS concluded.  See “Judge Sonia Sotomayor: Analysis of Selected Opinions,” June 19, 2009.

Other noteworthy new CRS reports obtained by Secrecy News include the following (all pdf):

“Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2009,” updated June 5, 2009.

“Inherently Governmental Functions and Department of Defense Operations: Background, Issues, and Options for Congress,” June 22, 2009.

“Federal Rulemaking: The Role of the Office of Information and Regulatory Affairs,” June 9, 2009.

“Homeland Security Department: FY2010 Request for Appropriations,” June 15, 2009.

“Iran’s 2009 Presidential Elections,” June 22, 2009.

Public Input Sought on Classification Reform

At the request of the National Security Advisor, a public meeting has been scheduled for July 8 to solicit public comments and recommendations concerning proposed revisions to executive branch classification and declassification policies.  The meeting was announced in a June 23 Federal Register notice.

The Public Interest Declassification Board, which is hosting the July 8 meeting, will also launch a new blog next week to solicit public recommendations online.  The blog will sequentially consider four areas: declassification policy, creation of a National Declassification Center, classification policy, and technology challenges and opportunities.  Discussion of each topic will continue for three days, before moving to the next topic.

Meanwhile, an experimental and somewhat erratic White House process for gathering public input on transparency and openness has entered its third phase, intended to draft “constructive proposals” for advancing open government.

2006 Satellite Failure Remains a Mystery, NRO Says

In February 2008, the U.S. fired a missile at an inoperable U.S. intelligence satellite that had failed shortly after launch in December 2006. The satellite was destroyed reportedly in order to prevent an intact reentry of its toxic hydrazine fuel tank.  But do we know why or how it failed in the first place?

“No,” the director of the National Reconnaissance Office told Congress last year, in newly disclosed responses (pdf) to questions for the record (p.89).

“After an exhaustive formal failure investigation, and three different independent review team investigations, the cause of the failure and what failed was not determined,” said Scott Large, then-director of the NRO.  “Our exhaustive analysis of the spacecraft design and test program did not identify the root cause of the failure,” Mr. Large said.  His remarks appeared in the record of a March 5, 2008 hearing before the House Armed Services Committee that was published this month.

“The era of Acquisition Reform is over,” Mr. Large also told Congress.  “It has left the NRO in a fragile state with a poor history of performance.”

On June 12, Secretary of Defense Robert Gates, with concurrence of the DNI, appointed retired Air Force Gen. Bruce Carlson as the 17th director of the National Reconnaissance Office.

Various Resources

A new U.S. Marine Corps Order establishes Corps policy governing the disclosure of U.S. classified military information and controlled unclassified information to foreign governments.  See “Disclosure of Military Information to Foreign Governments and Interests” (pdf), MCO 5510.20A, May 15, 2009.

The Joint Chiefs of Staff issued new doctrinal guidance on combating weapons of mass destruction, including the three pillars of nonproliferation, counterproliferations, and WMD consequence management.  See “Combating Weapons of Mass Destruction” (pdf), Joint Publication 3-40, June 10, 2009.

The Merit Systems Protection Board upheld the firing of federal air marshal Robert MacLean for allegedly disclosing “sensitive security information,” even though the information in question had not been marked as “sensitive” at the time, reports Nick Schwellenbach of the Center for Public Integrity. But then the Board published its ruling online even though the document (pdf) was marked “sensitive security information.” No word yet on whether the Board will fire itself. See “Transparency: A Shrill Message for Whistleblowers,” June 25.

2010 Intelligence Authorization Pending

Last month the Director of National Intelligence transmitted to Congress the Obama Administration’s proposed language for next year’s Intelligence Authorization Act.  This week, the Administration forwarded several additional proposals.  To its credit, the Senate Intelligence Committee has made this material available for public review on its web site.

Unsurprisingly, the proposed language would generally tend to expand intelligence agency authority while relaxing existing controls.

For example, the draft bill (pdf) would grant the DNI a new exemption under the Freedom of Information Act for “operational files.”  Under this provision, if an intelligence agency that has its own operational file exemption transfers an operational file to the ODNI, the transferred information would retain its exempt status.  (Normally, operational file information that is disseminated beyond the originating agency would lose its exemption from review under FOIA.)

In order to preserve the security of intelligence sources and methods and to promote information sharing, DNI Blair testified (pdf) last month, “It is imperative that those [operational] files are accorded the same protections at the ODNI as they are accorded at the CIA [for example].”

Recent experience suggests otherwise, however.  In 2005, FAS sought certain unclassified budget records from the National Reconnaissance Office, which the NRO denied because it said they were “operational files.”  We challenged that position in a FOIA lawsuit and a court ruled (pdf) that the NRO’s claim to an operational file exemption was not valid due in part to the fact that the document had been disseminated outside of the agency to the ODNI.  More than a hundred (pdf) partially redacted pages were found to be releasable.

At least a few lessons emerge from this episode:  First, it appears that intelligence agencies have a tendency to invoke the operational files exemption more broadly than is justified, in an attempt to exclude releasable records from processing under the FOIA.  Second, the loss of the NRO’s operational file exemption in this case had no adverse effect on information sharing within the intelligence community.  The NRO did not and could not have stopped sharing its budget documents with the ODNI.  Third, the processing of these records under FOIA did not result in any uncontrolled release of classified information or of sensitive intelligence sources and methods.  It just didn’t.

Aside from the operational files exemption, the Administration’s draft intelligence authorization bill also would exempt the ODNI from the open meeting requirements of the Federal Advisory Committee Act.  It would cancel several existing reporting requirements.  And so forth.

Here are a few hypothetical secrecy reform provisions that were notincluded in the Administration’s draft bill:

  •   A requirement that intelligence agencies perform a top-to-bottom review of all of their classification guides with the objective of eliminating all obsolete or unnecessary classification requirements.  Modeled on the 1995 Fundamental Classification Policy Review at the Department of Energy, such a process should include appropriate channels for public input and review, along with the participation of subject matter experts other than the original classifier.
  •   A revision of the National Security Act of 1947 to clarify that the requirement to protect intelligence sources and methods is limited only to those sources and methods that would be jeopardized or compromised to the detriment of national security if revealed.
  •   An instruction to the DNI Open Source Center that OSC products that are neither classified nor copyrighted should be made available to the public.

Congressional Action on Secrecy

The Senate on June 17 passed a bill sponsored by Senators Joseph Lieberman and Lindsey Graham that would exempt from the Freedom of Information Act certain photographs documenting the abuse of detainees held in U.S. custody.  Senator Graham said that if the bill was not enacted into law, the Obama Administration had assured him it would classify the photos to prevent their release.  “Rahm Emanuel has indicated to me that the President is committed to not ever letting these photos see the light of day,” he said.

Strictly speaking, however, classification alone is not sufficient to exempt any such record from the FOIA.  It must also be “properly classified,” and that is a determination that is to be made by a court of law.

Senate Jay Rockefeller introduced a bill to limit the abuse of the “sensitive security information” (SSI) marking to withhold certain health and safety information from the public.  “When an industrial emergency happens and threatens the lives of residents, workers and first responders, I absolutely believe the public has the right to receive important information about what it means for them and their health,” he said. “Period.”

Strictly speaking, again, the bill (pdf) does not modify the definition of “sensitive security information” nor does it even place public health and safety considerations on an equal footing with security.  Rather, it simply prohibits the deliberate, witting abuse of the SSI control marking.

The Senate Judiciary Committee again postponed its consideration of the State Secrets Protection Act (S.417) that would limit the ability of the executive branch to terminate litigation by invoking the privilege.  Senator Orrin Hatch outlined his opposition to the bill in a floor statement last week.  “Unless serious changes are made to this legislation and the amendments offered by myself and my Republican colleagues are adopted, I cannot in good conscience vote this bill out of committee,” he warned on June 10.


Resources on Nuclear Policy

The U.S. Air Force last month issued revised doctrine on “nuclear operations,” incorporating the conclusions of the 2001 Nuclear Posture Review. But it is nearly obsolete upon release, since a new Nuclear Posture Review that will presumably lead to a revised policy is already underway.  The new Air Force doctrine may be of interest nevertheless, since it presents an Air Force perspective on enduring issues of nuclear deterrence and nuclear command and control in easily understandable, mostly jargon-free terms.  See “Nuclear Operations” (pdf), Air Force Doctrine Document 2-12, May 7, 2009.

The text of a proposed agreement (pdf) between the United States and the United Arab Emirates concerning cooperation in the peaceful uses of nuclear energy was transmitted by the White House to Congress last month, along with assorted supporting materials.