SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 113
December 9, 2011

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

WHEN DOES PUBLIC DISCLOSURE MAKE SECRECY MOOT?

The U.S. State Department insists that the publication of many thousands of classified diplomatic cables by WikiLeaks does not alter their classification status. In response to a Freedom of Information Act lawsuit filed by the American Civil Liberties Union for 23 of the cables, the Department of State this week released redacted versions of 11 of them and withheld the other 12 in their entirety -- even though the full text of all of them is readily available online.

In principle, the question of whether unauthorized disclosure of classified information is tantamount to declassification of that information is not new, although the WikiLeaks case presents it with new force. The government has always contended, and courts have generally accepted, that unauthorized or unofficial disclosure does not imply or require declassification.

The "official acknowledgment by an authoritative source" of information that is already in the public domain adds a quantum of validity and may itself constitute "new information that could cause damage to the national security" the DC Circuit Court said in Afshar v. Department of State (1983).

Similarly, "there can be a critical difference between official and unofficial disclosures" in the "arena of intelligence and foreign relations," the DC Circuit said in Fitzgibbon v. CIA (1990).

The Fitzgibbon ruling set forth three conditions that must be met in order for a prior disclosure to overcome a government claim of proper classification and to justify release: (1) the information requested must be as specific as the information previously released; (2) the information requested must match the information previously released; and (3) the information requested must have been previously made public through an official and documented disclosure, i.e. not "leaked."

Within the FOIA context, this restrictive construct all but shuts the door to an argument that prior public disclosures justify a mandatory release of classified information that has been withheld. It seems designed to prevent new disclosures, not to enable them. Without having researched the question in depth, I believe I may be the only FOIA litigant ever to use the Fitzgibbon criteria to compel an agency to disclose information that it wished to withhold. And even then, I only received what I had already obtained independently. See "Judge Orders CIA to Disclose 1963 Budget," Secrecy News, April 5, 2005:

The WikiLeaks disclosures, however, represent a qualitatively new factual scenario because they involve not merely the release of "information" but of actual documents, whose authenticity is not in doubt.

Thus, a Zimbabwe political figure said last week that the Zimbabwe officials who were named in the WikiLeaks cables are like "lice" who will be dealt with at an appropriate time. ("We will deal with 'WikiLeaks lice' appropriately - Sibanda," Newsday [Harare], November 29, 2011.) These ominous remarks took for granted that the cables are authentic. Formal confirmation of their authenticity from the U.S. government at this point could hardly aggravate the situation and would be considered superfluous.

Interestingly, the law does admit the possibility -- at least outside of the FOIA context -- of an unofficial disclosure that is so widespread that any official acknowledgment becomes redundant and moot.

"One may imagine situations in which information has been so widely circulated and is so generally believed to be true, that confirmation by one in a position to know would add nothing to its weight," the Fourth Circuit wrote in Alfred A. Knopf Inc. v. William Colby (1975).

But the court did not articulate specific criteria for determining when such imaginary situations had become a reality. And it said that "appraisals of such situations by the judiciary would present a host of problems and obstacles."


CRS LOSES SEVERAL SENIOR STAFFERS

The Congressional Research Service gained a new Director this week, but it has recently lost several of its most experienced and accomplished analysts.

Librarian of Congress James Billington appointed Mary B. Mazanec to be the new CRS Director of the Congressional Research Service. She has been serving as acting Director since the retirement of her predecessor, Daniel Mulhollan, last April.

"Dr. Mazanec has advanced degrees in law and medicine and brings a breadth of experience that will be valuable in leading CRS and ensuring that CRS continues to provide comprehensive and objective research and analysis that meets the needs of Members and staff," the Librarian said in a December 5 news release.

But with the departure of numerous senior staff, CRS is also experiencing deeper changes that will leave it with diminished capacity to provide original analysis and insight to Congress and other would-be consumers.

The CRS Foreign Affairs, Defense and Trade division lost one intelligence policy analyst, Alfred Cumming, earlier this year. Another, Richard Best, is retiring. "Those positions will not be filled for the foreseeable future," according to a CRS official. Two other positions in the Asia section are also not going to be filled, the official said, due to budget constraints.

Last month, CRS Specialist Frederick M. Kaiser, author of hundreds of studies on government secrecy, congressional oversight and related issues, retired after more than three decades at CRS. His expertise and his institutional memory could not be easily replaced even if there were a will and a budget to do so. Senator Daniel Akaka (D-HI) paid tribute to Mr. Kaiser this week in the Congressional Record:

Bruce Bartlett, a conservative libertarian who is a former congressional staffer and Reagan Administration official, contended recently that congressional support agencies -- such as CBO, GAO, CRS and, earlier, OTA -- had been deliberately targeted by some Republican leaders. As centers of nonpartisan analysis and evaluation, he said, these agencies are perceived by some as an obstacle to ideological control of congressional debate that must be weakened or eliminated. ("Gingrich and the Destruction of Congressional Expertise," New York Times Economix blog, November 29, 2011.)

"It is essential that Congress not cripple what is left of its in-house expertise," he wrote.

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

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