SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2009, Issue No. 65
July 29, 2009

Secrecy News Blog: http://www.fas.org/blog/secrecy/

DECLASSIFIED PDB INFO IS STILL CLASSIFIED, CIA SAYS

Even though certain information concerning the President's Daily Brief (PDB) was redacted and declassified for use in the prosecution of former vice presidential aide Scooter Libby in 2006, that same information is nonetheless "currently and properly classified," the Central Intelligence Agency said last week. The Agency denied release of the material under the Freedom of Information Act.

The existence of the declassified PDB material was disclosed in a January 9, 2006 letter from Special Counsel Patrick J. Fitzgerald to Mr. Libby's attorney. He wrote: "In response to our requests, we have received [from CIA] a very discrete amount of material relating to PDBs and discussions involving Mr. Libby and/or Vice President Cheney concerning or relating to the PDBs. We have provided to Mr. Libby and his counsel (or are in the process of providing such documents consistent with the process of a declassification review) copies of any pages in our possession... in the redacted form in which we received them."

Since declassified PDBs are comparatively rare, we submitted a Freedom of Information Act request in February 2006 for a copy of the PDB-related material that was declassified by CIA for the Libby prosecution. Last week, the CIA responded that it had located the requested material but that "we determined [it] is currently and properly classified and must be denied in its entirety."

This is a somewhat puzzling development. It is a pity that the CIA Inspector General does not investigate violations of the law of non-contradiction. ("One cannot say of something that it is and that it is not in the same respect and at the same time." Aristotle, Metaphysics, 1005b12-20.)

With few exceptions, the CIA has consistently opposed public release of PDBs, reflecting an uncompromising view that PDBs are intrinsically sensitive, irrespective of their age or contents, and should not be disclosed. (The Agency did reluctantly agree to disclose the August 6, 2001 PDB item entitled "Bin Ladin Determined to Strike in US" at the insistence of the 9/11 Commission.)

When challenged under the Freedom of Information Act, courts have upheld the CIA's refusal to release specific PDBs. But a 2007 ruling in the Ninth Circuit Court of Appeals rejected the CIA view that "PDBs are categorically exempt from FOIA." In particular, the court denied the CIA assertion that the PDB itself is an intelligence method that is protected by law. "Although PDBs will typically contain information that reveals intelligence sources and methods, this does not mean that PDBs themselves are intelligence methods."

"If we were to accept the CIA's logic," the court said, "then every written CIA communication -- regardless of content -- would be a protected 'intelligence method' because it is a method that CIA uses in doing its work.... We decline to adopt such a boundless definition, and instead hold that whether or not a particular document used by the CIA in its ordinary course of business is an intelligence method depends upon the content of the document." (Larry Berman v. Central Intelligence Agency, September 4, 2007):

Although the CIA said that the Libby PDB-related material is now considered "properly classified," the Agency did not invoke the FOIA exemption for classified information. Instead, it denied release of the material on the basis of FOIA exemption (b)(3) which includes statutory protection for intelligence methods.


MORE THAN 2.4 MILLION HOLD SECURITY CLEARANCES Some 2.4 million persons currently hold security clearances for authorized access to classified information, according to a recent Government Accountability Office report to the House Intelligence Committee, citing an estimate from the security clearance Joint Reform Team. This figure does not include "some of those with clearances who work in areas of national intelligence," the GAO noted (at p.1).

An accurate tally of the number of cleared government employees and contractors -- as opposed to a round-number estimate -- is not currently available anywhere in government. The House version of the FY2010 intelligence authorization act (sec. 366) would require an annual report that indicates the number of individuals with security clearances.

In 1993, an estimated 3.2 million persons held security clearances, according to a 1995 GAO report (cited by the Moynihan Commission, chapter 4).


SOME RECENT HEARING VOLUMES ON INTELLIGENCE

Some noteworthy, newly published congressional hearing volumes on intelligence policy and related topics include the following.

"Attorney General Guidelines for FBI Criminal Investigations, National Security Investigations, and the Collection of Foreign Intelligence," Senate Intelligence Committee, September 23, 2008:

"Nomination of Michael Leiter to be Director, National Counterterrorism Center," Senate Intelligence Committee, May 6, 2008:

"U.S. Interrogation Policy and Executive Order 13440," Senate Intelligence Committee, September 25, 2007:

"Fixing the Homeland Security Information Network: Finding the Way Forward for Better Information Sharing," House Homeland Security Committee, May 10, 2007:

"Budget Request on Unmanned Aerial Vehicles (UAV) and Intelligence, Surveillance, and Reconnaissance (ISR) Capabilities," House Armed Services Committee, April 19, 2007:

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

See also "Reducing Government Secrecy: Finding What Works" by Steven Aftergood, Yale Law and Policy Review, vol. 27, no. 2, Spring 2009:
      http://www.fas.org/sgp/eprint/aftergood.pdf

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