Report on Disclosures to the Media is Classified

A report to Congress on authorized disclosures of classified intelligence to the media — not unauthorized disclosures — is classified and is exempt from disclosure under the Freedom of Information Act, the National Security Agency said.

The notion of an authorized disclosure of classified information is close to being a contradiction in terms. If something is classified, how can its disclosure be authorized (without declassification)? And if something is disclosed by an official who is authorized to do so, how can it still be classified? And yet, it seems that there is such a thing.

Confronted by a pressing question from a reporter on a classified matter, an official might opt to acknowledge or disclose classified information in response, without necessarily intending to broadcast that information to everyone. In such cases, the information might be disclosed without being declassified, especially if it is already known to the reporter through other channels.

In the Intelligence Authorization Act for FY 2013 (sec. 504), Congress directed that “In the event of an authorized disclosure of national intelligence” to the media, the government official responsible for authorizing the disclosure shall notify Congress in a timely fashion whenever the intelligence disclosed is classified (or declassified for the purpose of the disclosure).

The purpose of that requirement was to ensure that the congressional intelligence committees are made aware of authorized disclosures to the press “so that, among other things, these authorized disclosures may be distinguished from unauthorized ‘leaks’,” according to the Senate report on the FY2013 intelligence bill.

So what disclosures of classified intelligence to the media were approved by government officials and reported to Congress, we asked earlier this year? The National Security Agency refuses to disclose those disclosures.

“The document responsive to your request has been reviewed by this Agency as required by the FOIA and has been found to be currently and properly classified in accordance with Executive Order 13526,” according to an October 2 letter signed by retiring NSA FOIA chief Pamela N. Phillips. “The document is classified because its disclosure could reasonably be expected to cause exceptionally grave damage to the national security.”

We appealed the denial.

“It is well established that information, including classified information, that has been publicly disclosed on an authorized basis loses its exemption from disclosure under FOIA,” the FAS appeal letter said.

“Since the requested document addresses ‘authorized public disclosures,’ the substance of those authorized disclosures may no longer be withheld.”

My Take on Snowden’s Revelations

data scanningEarlier this month, I was interviewed by KNBC’s Scott McGrew regarding Snowden’s revelations about NSA spying. The clip is eight and a half minutes long, and here are some of the main points I made:

A lot of what are now seen as NSA’s abuses were authorized by the Patriot Act, which was passed and renewed by large margins by our elected representatives. When it was first passed in October 2001,  only one senator, Russ Feingold, voted against it. How did we reward him? By kicking him out of the Senate  in the 2010 election . If there’s someone to blame, perhaps we should look in the mirror.

Right after 9/11 I was shaken enough to say that I wanted my government to be more intrusive in my life, and I got what I asked for. In hindsight, I over-reacted. But, given that we now have the Patriot Act, we need much better oversight. For example, it’s dangerous that all FISA court judges are appointed by just one person: Chief Justice John Roberts.

As a nation, we want absolute privacy against government intrusion, absolute security against  terrorists, and the right to use our military anytime and anywhere we think it is appropriate. We need to recognize that there’s a tradeoff, and we can’t have all three, at least at the level we’ve been demanding them.

Our civil liberties have become collateral damage to our many wars. If we want want less domestic surveillance and improved personal security against terrorism, we’re going to have to be less intrusive in the world. We’re going to have to kill fewer people, who then might want to come and kill us.

If we become less militarily adventuresome, it would reduce the threat posed by nuclear weapons in  two ways. First, terrorists would be less interested in doing us harm, including via nuclear terrorism. Second, our toppling governments as often as we have feeds dangerous paranoia in Russia and China, which increases the risk of a nuclear confrontation. A prominent Russian international relations expert made a reasonable case that his nation should be fearful of us. Here’s how the Washington Post covered his remarks:

I’m skeptical that anyone outside of the Kremlin could diagnose its view of American foreign policy with real certainty, but Fyodor Lukyanov is probably about as close as an outside observer can get. …

According to Lukyanov’s latest article in Al-Monitor, an assessment of the lessons that he believes Russia drew from the Iraq war that began 10 years ago, President Vladimir Putin and his government are convinced that U.S. foreign policy is basically running on madness at this point. … “Everything that’s happened since — including flirting with Islamists during the Arab Spring, U.S. policies in Libya and its current policies in Syria — serve as evidence of strategic insanity that has taken over the last remaining superpower.” …

Moscow is certain that if continued crushing of secular authoritarian regimes is allowed because America and the West support “democracy,” it will lead to such destabilization that will overwhelm all, including Russia. [emphasis added]

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Martin Hellman is a professor at Stanford University, best known for the invention of public key cryptography — the technology that protects your credit card. But, for almost 30 years, his primary interest has been how fallible human beings can survive possessing nuclear weapons, where even one mistake could be catastrophic.

The post My Take on Snowden’s Revelations appears on ScienceWonk, FAS’s blog for opinions from guest experts and leaders.