SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 26
March 21, 2011

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

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 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 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 on March 11.

On March 16, prosecutors asked the court 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. "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 by Josh Gerstein of Politico, was also sealed. The newly-sealed records remain available, however, on the Federation of American Scientists web site.


COMMENTS INVITED ON "TRANSFORMING CLASSIFICATION"

The Public Interest Declassification Board, 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 over the next several weeks on a new blog here:

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 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" 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:

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.

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