SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 16
February 22, 2012

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

DOD REPORTS "IMPRESSIVE STRIDES" IN UPDATING CLASSIFICATION

The Department of Defense said it has cancelled more than 300 of its 1800 classification guides as a result of the ongoing Fundamental Classification Guidance Review. The defunct guides can no longer be used to authorize the classification of national security information.

"The Department has continued to make impressive strides in updating our Security Classification Guides (SCGs) and remains focused on ensuring that guidance reflects current operational and technical circumstances relevant to the protection of properly classified information," DoD told the Information Security Oversight Office in a February 16, 2012 interim report.

"As a result, through the period of this report, approximately 17.7% of DoD's non-compartmented SCGs have either been eliminated or identified for retirement," the DoD report said. (Non-compartmented SCGs do not include classification guidance for DoD special access programs or compartmented intelligence programs, which are being reviewed separately.)

The Fundamental Classification Guidance Review was mandated by President Obama's 2009 executive order 13526 in order to identify and eliminate inappropriate classification requirements. It is the Administration's primary mechanism for combating overclassification.

Most of the newly cancelled guides (237 of them) originated with the Navy, which also has the largest number of guides (820). The Army eliminated 21 guides out of 363, and the Air Force eliminated 27 out of 283.

The significance of the cancellations is hard to gauge, especially since the cancelled guides are not identified in the new interim report to ISOO. In some cases, their elimination may make no practical difference since they were no longer in use anyway. In other cases, the cancellations may reflect an updated consensus concerning the sensitivity of the information.

Collectively, the elimination of hundreds of classification guides will help to clear away much of the accumulated detritus of the national security secrecy system. It will increase the clarity of classification policy, and reduce some of its arbitrariness.

If the Fundamental Review had reduced the inventory of classification requirements by five percent, it would have been worthwhile. Remarkably, it now appears that that goal will be surpassed a few times over.

In its own interim report to ISOO, the Office of the Director of National Intelligence said that 2 security classification guides out of ODNI's total of 29 had been eliminated by December 31 as the result of the Fundamental Classification Guidance Review.

MEDIA ORGS FILE AMICUS BRIEF IN STERLING LEAK CASE

Dozens of major news media organizations joined together to defend the notion of a reporter's privilege to protect the identity of a confidential against compulsory disclosure.

The organizations filed an amicus curiae brief in support of New York Times reporter James Risen, who has been subpoenaed to testify in the case of Jeffrey Sterling, the former CIA officer who is accused of leaking classified information to Mr. Risen. The case is currently on pre-trial appeal before the Fourth Circuit Court of Appeals.

"All amici are engaged in or support the dissemination of news and information to the public, at times through the use of confidential sources," the amicus brief stated. "Amici are concerned that if this Court adopts the Government's unprecedented position-- that journalists do not possess a qualified privilege that protects them against the compelled disclosure of confidential sources in criminal trials-- their ability to report on matters of substantial public concern will be significantly impaired."

The brief cited important news stories that were based in part on unauthorized disclosures of classified information.

"In many of these instances, although the source may arguably have violated a legal duty by providing such information to a journalist in the first instance, the subsequent reporting inevitably led to the discovery and prosecution of much more serious crimes. Amici respectfully submit that an inventory of those crimes that have gone unpunished because a journalist was permitted to protect a source would be a very short list indeed, and would pale in comparison to the number of significant criminal prosecutions made possible directly as a result of news reports containing information gleaned from confidential sources," the brief stated.

The brief is an emphatic chorus of support for Mr. Risen, and it offers a clear statement that the public interest in a free press is at stake in this case.

One thing it does not do, however, is simplify the matter for the appeals court or help to devise some kind of resolution of the conflict between the parties.

Interestingly, Mr. Risen's own brief was more accommodating. It even suggested the possibility of "bad leaks" that were undeserving of privileged protection. A case-by-case public interest analysis could be conducted to distinguish between good and bad leaks, the February 14 brief proposed.

Such an analysis "is the most direct way to protect journalism based on leaks that cause more good than harm. It also provides a basis to force the privilege to yield for leaks that cause more harm than good."

In this case a public interest analysis would vindicate Mr. Risen, his attorney wrote.

CHARACTERISTICS OF MEMBERS OF CONGRESS, AND MORE FROM CRS

New and updated reports from the Congressional Research Service that Congress has not made readily available to the public include the following.

Representatives and Senators: Trends in Member Characteristics Since 1945, February 17, 2012:

The Federal Communications Commission: Current Structure and Its Role in the Changing Telecommunications Landscape, February 21, 2012:

F-35 Joint Strike Fighter (JSF) Program: Background and Issues for Congress, February 16, 2012:

War Powers Litigation Initiated by Members of Congress Since the Enactment of the War Powers Resolution, February 17, 2012:

Bahrain: Reform, Security, and U.S. Policy, February 21, 2012:

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

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