SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 67
July 12, 2012

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

FORMER ISOO DIRECTOR AGAIN ASKS COURT TO RELEASE NSA DOCUMENTS

Last May, J. William Leonard, the former director of the Information Security Oversight Office, asked a federal court for permission to disclose and discuss declassified National Security Agency documents that had been cited in the prosecution of former NSA official Thomas Drake. The documents represented a particularly "egregious" and "willful" case of overclassification, Mr. Leonard said, that needed to be publicly addressed.

Last month, government attorneys said there was no basis for action by the Court, and they suggested that Mr. Leonard could submit a Freedom of Information Act request to NSA for the documents instead.

Yesterday, Mr. Drake's attorneys fired back in support of Mr. Leonard, who served as an expert for the Drake defense. They said Mr. Leonard is properly seeking relief from the Court because it was the Court that issued the Protective Order that limits his ability to discuss the issue.

"The Protective Order remains in effect today. It was not voided or mooted when judgment was entered last year. It has not expired," wrote public defenders James Wyda and Deborah L. Boardman, Mr. Drake's attorneys. "Although the United States may not take the terms of its own Protective Order seriously, Mr. Leonard does."

The government's suggestion that Mr. Drake file a FOIA request is unsatisfactory in two ways, Mr. Wyda and Ms. Boardman wrote. First, NSA has failed to release these documents in response to previous FOIA requests, including one filed by me last year.

"Given NSA's track record and its failure to respond to prior requests [...], Mr. Leonard had no reason to believe his FOIA request for the same document would have been successful."

But even if NSA did release the documents under FOIA, that would not solve Mr. Leonard's problem, the defense attorneys explained.

"Even if Mr. Leonard had received the documents pursuant to a FOIA request, he would still be bound by the terms of the Protective Order that prohibit him from disclosing and discussing the documents. It would do Mr. Leonard no good to merely receive the documents pursuant to a FOIA request if he cannot discuss the documents because he is bound by a Court Order that prohibits such discussion."

The good news, they said, is that NSA has already prepared lightly redacted versions of the documents that are suitable for public release. "These redacted versions are acceptable to Mr. Leonard," Mr. Wyda and Ms. Boardman wrote.

Now it will be up to the Court to rule.

The deeper question raised by Mr. Leonard's action -- how to respond to "egregiously" mistaken classification actions -- remains open.

POLYGRAPHS AND LEAKS: A LOOK BACK AT NSDD 84

"I've had it up to my keister with these leaks," President Reagan complained in 1983 after a series of unauthorized disclosures. ("Keister is slang for buttocks," the Associated Press helpfully explained at that time.)

One of President Reagan's responses to the flood of leaks was to direct the use of polygraph examinations in leak investigations. (The Director of National Intelligence reflexively responded in a similar way last month.)

National Security Decision Directive 84 of March 11, 1983 directed that "All departments and agencies with employees having access to classified information are directed to revise existing regulations and policies, as necessary, so that employees may be required to submit to polygraph examinations, when appropriate, in the course of investigations of unauthorized disclosures of classified information."

Amazingly, this policy was denounced by then-Secretary of State George Shultz, who threatened to resign rather than submit to a polygraph examination. He was excused from the test.

"Management through fear and intimidation is not the way to promote honesty and protect security," Secretary Shultz said in a January 9, 1989 valedictory speech, explaining his opposition to the polygraph.

But management through fear and intimidation seems to be a recurring theme in security policy. And polygraph testing is part of that, judging from a remarkable story published this week by McClatchy Newspapers.

"One of the nation's most secretive intelligence agencies is pressuring its polygraphers to obtain intimate details of the private lives of thousands of job applicants and employees, pushing the ethical and legal boundaries of a program that's designed instead to catch spies and terrorists," wrote McClatchy reporter Marisa Taylor.

"The National Reconnaissance Office is so intent on extracting confessions of personal or illicit behavior that officials have admonished polygraphers who refused to go after them and rewarded those who did, sometimes with cash bonuses, a McClatchy investigation found."

See "National Reconnaissance Office accused of illegally collecting personal data," July 10:

"The US is, so far as I know, the only nation which places such extensive reliance on the polygraph," wrote convicted spy Aldrich Ames in a November 2000 letter from prison. "It has gotten us into a lot of trouble."

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

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