SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2008, Issue No. 106
October 31, 2008

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VIOLATIONS OF LAW MAY BE CLASSIFIED, COURT RULES

Information that would reveal a violation of the law may be properly classified as long as it is not deliberately classified for the purpose of concealing the violation, a federal judge indicated this week.

That view, in a ruling against the ACLU by DC District Judge Royce C. Lamberth, all but nullifies one of the principal limitations on national security secrecy contained in the executive order on classification policy.

In section 1.7 of executive order 12958, as amended, on "classification limitations and prohibitions," the President directed that "In no case shall information be classified in order to ... conceal violations of law...."

The ACLU cited this provision in a recent FOIA lawsuit to argue that transcripts of detainee tribunal hearings could not be properly classified under the executive order if they revealed evidence of torture or other illegal conduct. The court rejected that argument.

"Plaintiffs [ACLU] claim that some material was improperly classified because it may contain evidence that the government has violated the law," Judge Lamberth wrote in an October 29 ruling. "But plaintiffs misapprehend the Executive Order," he wrote (at page 6). "Executive Order 12958 prohibits classifying information 'in order to ... conceal violations of the law.' However, there is no indication that these materials were classified 'in order to' conceal violations of the law...."

In other words, according to Judge Lambert, classifiers actually may conceal violations of the law as long as such concealment is not the specific purpose of the classification.

This narrow understanding of the executive order converts an important guarantee of the integrity of the classification process into an empty rhetorical gesture.

Under Judge Lamberth's interpretation, the executive order provision limiting classification of violations of the law is not a limitation on the types of information that may be classified at all, but rather an unverifiable limitation on the classifier's intention. The provision is not concerned with the consequences of classification (i.e., the fact that criminal activity will be concealed from public knowledge) but instead focuses on the mental state of the classifier. Did he or she specifically intend to conceal violations of the law? If not, the classification may proceed, even if concealment is the inevitable result. And since the classifier's mental state is unknowable by others or may itself be concealed, the executive order's limitation is deprived is of significant meaning.

In the past, the limitation on classification of violations of the law was construed more broadly as a public assurance that classification would not be used to conceal criminal activity by the government. (It was never understood to require publication of information about third-party crimes collected through classified intelligence or law enforcement methods.)

In 2004, the Federation of American Scientists cited the provision in a complaint filed with the Information Security Oversight Office, contending that the Taguba report that found evidence of criminal abuses at Abu Ghraib prison was improperly classified. ISOO, led by then-director J. William Leonard, undertook an investigation into the propriety of the report's classification and reported some noteworthy results.

Not only was the Taguba report released in declassified form, but the Pentagon undertook a Department-wide initiative to improve classification training, management and oversight. The "motivation" in the mind of the classifier never came up.

The Secretary of Defense himself also issued a Department-wide memorandum to remind classifiers of their responsibility to exercise classification authority properly, and he specifically cited the prohibition on classifying criminal activity. In his September 16, 2004 memo, Defense Secretary Donald Rumsfeld paraphrased the executive order limitation as follows: "It is important to state that classifiers shall not... use classification to conceal violations of law...."

Interestingly, Secretary Rumsfeld did not use the phrase "in order to" which Judge Lamberth singled out to justify his interpretation of the order as a prohibition only on deliberate concealment. The Rumsfeld paraphrase seems to reflect the prior understanding that classification should not be used "so as to" conceal violations of the law, regardless of the intentions of the classifier.

But if violations of the law may in fact be classified, then it is important for Americans to know that. If Judge Lamberth has made it easier for classifiers to conceal violations of the law, he also put the public on notice that this is how the national security classification system now functions.

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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