ODNI Rethinks Secrecy and Openness in Intelligence

By leaking classified intelligence documents, Edward Snowden transformed public awareness of the scale and scope of U.S. intelligence surveillance programs. But his actions are proving to be no less consequential for national security secrecy policy.

“These leaks have forced the Intelligence Community to rethink our approach to transparency and secrecy,” said Robert S. Litt, General Counsel at the Office of the Director of National Intelligence. He spoke at a March 18 Freedom of Information Day program sponsored by the Collaboration on Government Secrecy at American University Washington College of Law.

Mr. Litt made it clear that he did not approve of the Snowden leaks, which he said were unlawful and had “seriously damaged our national security.” Yet he stressed that the leaks have also prompted a reconsideration of previously accepted patterns of secrecy.

“We have had to reassess how we strike the balance between the need to keep secret the sensitive sources, methods and targets of our intelligence activities, and the goal of transparency with the American people about the rules and policies governing those activities.”

“One lesson that I have drawn from the recent events… is that we would likely have suffered less damage from the leaks had we been more forthcoming about some of our activities, and particularly about the policies and decisions behind those activities,” Mr. Litt said.  (Director of National Intelligence James Clapper made the same point to Eli Lake of the Daily Beast last month.)

“Going forward, I believe that the Intelligence Community is going to need to be much more forward-leaning in what we tell the American people about what we do,” Mr. Litt said. “We need to scrutinize more closely what truly needs to be classified in order to protect what needs to be protected. And we need to move beyond the mindset of merely reacting to formal requests that we make information public, to a mindset of proactively making available as much information as we can, consistent with the need to protect sources and methods.”

“Greater disclosure to the public is necessary to restore the American people’s trust that intelligence activities are not only lawful and important to protecting our national security, but that they are appropriate and proportional in light of the privacy interests at stake. In the long run, our ability to protect the public requires that we have the public’s support,” Mr. Litt said.

While Mr. Litt’s remarks conveyed an overall message of beneficence, responsiveness, and good citizenship, they also had some peculiar features.

It is disconcerting to realize that the reassessment of classification policy described by Mr. Litt was not prompted by the diligent exercise of congressional oversight or by judicial review or by ordinary advocacy. Rather it was explicitly inspired by the Snowden leaks, which Mr. Litt described as “criminal.” The upshot is that leaks emerge as a uniquely powerful tool for shaping intelligence classification policy, while conventional checks and balances appear all but irrelevant by comparison.

Moreover, the purpose of the newfound push for greater transparency seems to be instrumental, not principled. In other words, it is driven by tactical considerations, not by statutory requirements or any other objective norm.

“I strongly believe that the best way to prevent the damage that leakers can cause is by increased transparency on our part,” Mr. Litt said. “Transparency can both lessen the incentive for disaffected employees to disclose our activities improperly, and provide the public appropriate context to evaluate leaks when they occur.”

That implies that what is needed is only as much transparency as it takes to achieve these imprecise and transient goals. It is a unilateral move that can be unilaterally reversed.

And then there is the fact that Mr. Litt’s rethinking of classification policy implies no new institutional reforms or externally-imposed constraints. Instead, the very same people who have classified too much up to now are suddenly expected to change course and to disclose more. It is not immediately clear how or why that would happen.

“There is no question that overclassification of information is a genuine problem,” Mr. Litt said. “So how do we deal with the problem of overclassification? I think that there are three principal steps we can take.”

“The first is to change the culture. We need high-level management emphasis on the problem of overclassification,” he said. To his credit, Mr. Litt has helped provide such emphasis.

“Second, we need to continue our efforts at proactive transparency– at reviewing information that we have historically protected to see whether, in fact, the overall public interest would better be served by releasing the information.” Significantly, however, he refrained from providing specific performance goals or benchmarks by which future progress could be measured.

“Finally, I think that those in the agencies who are responsible for responding to FOIA requests, and who are representing the government in FOIA litigation, need to look critically at all potentially responsive documents that are classified,” Mr. Litt said. “We should focus not on whether we can protect information, but whether we should.”

This is an interesting formulation. Most FOIA officers do not have authority to declassify records, and the adversarial nature of the FOIA process is rarely conducive to self-critical analysis of established agency policies even by more senior officials. But sometimes it is.

In 1997, the Federation of American Scientists filed suit against the CIA for release of the intelligence budget total for that year. The CIA ultimately decided that it could not defend its position of classifying the figure, according to an internal draft statement that was prepared for DCI George Tenet and released by the Clinton Library just last week.

“In order to defend this lawsuit,” the Tenet statement read, “I, as head of the Intelligence Community, would have had to sign a declaration to the court that release of the figure in question could cause serious damage to the national security. I found that, in good conscience, I could not attest to that statement.”

But such judgments are fluid and can be fleeting. Two years later, in response to another lawsuit for the 1999 budget figure, Director Tenet had no trouble declaring under oath that “Disclosure of… the total appropriation reasonably could be expected to cause damage to the national security in several ways.”

So spontaneous gestures of openness and transparency, as welcome as they may be, are imperfect substitutes for systemic change and external accountability.

News organizations have now released some 1,300 pages of classified records leaked by Edward Snowden, according to a tally by cryptome.org.  In response, US intelligence agencies have declassified and disclosed approximately twice that many.

“Our commitment to increased transparency will continue,” Mr. Litt said.

5 thoughts on “ODNI Rethinks Secrecy and Openness in Intelligence

  1. Lots of talk about what should be classified and how to communicate that to the public and the workers involved so they can keep it from being disclosed to their detriment or embarrassment.

    Not much about whether what they are gathering is useful. I’m sure they don’t care if it is “right” or not.

    So once again, they are addressing the wrong question and don’t get it at all.

  2. I waited nine months for Defense Intelligence Agency officials to respond to a FOIA request for copies of unclassified contract-related documents related to DoD’s purchases of polygraph equipment since January 1, 2000. Coincidentally, their response came in the form of a letter bearing the exact date on which “The Clapper Memo” — my latest nonfiction book in which I would have shared the information — was released. Included the time that has passed since I filed my appeal, I’ve waited a total of 612 days (so far). So, do I put much faith in what fellows like Litt say about transparency. Not hardly.

  3. I think you may be a bit harsh on the NSA by stating that their transparency is simply instrumental. In many ways the work of the FOIA and recent work on transparency, including this blog, have created the conditions that allowed such an event to encourage greater transparency.

    The problem is not simply transparency vs opacity and the NSA being on the side of opacity. Instead, it demonstrates the political reality that declassification arguments and transparency had reached a predictable impasse that required something to give. The catalyst had to be an external event, like a leak of this scale, to generate the opportunity for various parties to change the status quo.

    We must remember that other people leaked before Snowden, he is the first to get away with it as all the others, even Ellsberg, faced trial. (I am assuming for the purpose of this post he is not yet determined to be a foreign agent).

    However, we cannot confuse declassification with the need for secrecy. One is a process that while slow is an agreed process that follows an agreed protocol. The other is based on operational demands that can change from day to day and cannot be know ahead of time and thus need to be done almost by reflex.

    What compounds both, though, is culture. In many ways the two cultures should be separated but because the same agency that classifies and uses the documents is also instrumental in the declassification, then there becomes a conflict of interest but also a methodological bias to withhold the information. However, all of this is known by those who have to deal with these issues regularly.

    What is needed, and the NSA recognize this, is a change in the culture towards the public and transparency. I suggested something similar in my response to the NSA consultation because the NSA needs to improve the way it tells “its story”. http://lawrenceserewicz.wordpress.com/2013/12/20/nsa-surveillance-response/

    Despite recognizing the need to change its culture and increase its transparency, the NSA is losing the battle for public opinion. They may not lose the war, we still need governments and we still need intelligence agencies, but they are losing the current public opinion battle. http://mediameditations.wordpress.com/2014/02/02/the-nsa-has-lost-the-public-opinion-battle/

    If they are to improve their transparency and their story to the public, they may have to change the way they work. The changes required, though, may reduce their effectiveness, given that secrecy or uncertainty of their abilities does provide a strategic advantage, which may be worse in the long run.

    The problem is that we have not yet seen the dark side of such transparency or transparency in the age of Facebook and Google. What may yet occur is a backlash against such demands as people realize, based on some spectacular abuse of personal information (after all no organisation is forever immune from the Lucifer effect http://www.lucifereffect.com/ ) that wakes people up to the need for covert work and NSA secrecy. (I do not mean the mass collection of data as that has not created any mass effects, save mass hysteria and a mass purchase of encryption services). If that occurs, it may be too late and if the NSA is on the backfoot, who will be available?

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